A series of fatal incidents and disasters has given rise to an increasing perception that deaths resulting from gross negligence in the exercise of business activities comprise a category of unlawful conduct which has been neglected by the legal system1. No longer are these disasters seen as accidents, they are viewed as foreseeable and preventable. Companies are seen to be culpable and there is a desire to transmute moral blameworthiness into criminal liability. However, there are many impediments to the criminalisation of corporate misconduct.
Initial problem that is faced automatically revolved around a lack of consensus upon the correct way in which who to prosecute: a company or an individual? As the law stand it places too much emphasis on the identification doctrine: a company can be convicted of manslaughter only if an individual who is considered to embody the company is found guilty. In the absence of a single, authoritative interpretation of just who may embody a company, the courts have attempted to identify its 'directing mind and will' in each case2.
The doctrine allows companies to escape prosecution simply because of the difficulty in identifying a single director (especially in large organisation) who can be prosecuted for manslaughter. Another problem is that, despite the availability of incriminating evidence, prosecutions resulting from deaths at work are seldom3. In the main, such prosecutions have been left to the regulatory authorities, in spite of the fact that convictions under the Health and Safety at Work Act (HSWA) 1974 are generally perceived as a means of safeguarding public safety rather than as a means of attributing blame and punishing wrongdoers.
The primary aim of this proposal is to identify the problems/deficiencies associated with the widely-accepted mechanisms adopted, or canvassed, by English law for the establishment of corporate liability and to demonstrate the fact that why there is immediate need for radical reform in the current system of law. In the context of workplace deaths, the attempt is made to examine the roles and functions of the regulatory framework of the Health and Safety at Work legislation.
In the light of this, the law commission proposal to create a new crime of corporate killing will be discussed and evaluated. The main interest in this subject is the result of two sets of developments. First, there have been several disasters in recent years, in which large numbers of people have been killed. These have called for reform of the law of manslaughter, and failure to successfully prosecute has led to an apparent perception among the public that the law dealing with corporate manslaughter is inadequate.
These disasters have included: the Herald of Free Enterprise disaster in which 192 people were killed, the King's Cross fire in which 31 people died, the Clapham rail crash in which 35 people died and nearly 500 people were injured, the Southall rail crash in which 7 people died and 151 were injured4. Secondly, there has been an increased awareness of the numbers of persons annually being killed and seriously injured in their place of work. In the last 10 years, 3,000workers and 1,000 members of the public have died in work-related incidents5. Most of these deaths result from corporate activities.
Yet only 11 companies have been prosecuted for manslaughter, only three of which – all very small firms – were convicted6. The number of directors who have ever been jailed for such offence is just two. Statistics of fatal injuries and non-fatal major injuries at workplace for last 5 years from 1996-2001 demonstrates the following7: Statistics for Fatal Injuries reported to both Health and Safety Executive and Local Authorities8:These deaths and injuries were the result of violent incidents – people were being crushed, electrocuted, asphyxiated, burnt, drowned, impaled and so forth10.
The above figures merely represent reported cases. It is reported that each year, the total number of work-related death is likely to be over 1500, and the number of people die as a result of work-related illnesses such as asbestos-related disease is likely to be over 10,00011. Part: 2 Having studied literatures (which will be discussed shortly) written by leading legal writers on this subject it can be concluded that the law in this area is unclear and uncertain, which shows the inadequacies of the criminal law in holding the corporate defendants liable for their corporate misconducts, which resulted in loss of several lives.
There are several controversial issues which have given rise to major debate between academics, judges and lawyers. They seem to agree in some cases, however they have disagreements too. Corporate manslaughter is part of the law of involuntary manslaughter. Involuntary manslaughter is the causing of death where death or serious injury was not intended – usually due to grossly negligent or reckless conduct. So when an individual, for example, a doctor, kills through gross negligence, a prosecution for manslaughter can, and sometimes does, follow12.
Whereas, when companies kill and injure, however, the practice is different. Only three companies have been convicted of manslaughter. There are two main reasons for this. The first reason for this relates to regulatory laws. The main body set up to enforce this legislation is the Health and Safety Executive (HSE), which has the power to notify companies that certain safety matters require attention, or to bring a criminal prosecution. In theory criminal prosecution for violation of a regulatory offence is possible, though, in practice it tends not to happen.
The reason provided for this, as stated by G. Slapper13 is, workplace deaths are investigated by the HSE with the police playing no part after taking brief statements at the place of death. However, the HSE does not regard its primary function as being one of initiating prosecutions, but rather as one of 'assisting and advising the generality of well-conducted companies, and of determining good practice'14, because they are under the impression that they are expert advisers rather than industrial police.
This gives both companies and the public a false impression that the offences at issue are not "true crimes", and unfortunately the HSE regards these offences as industrial accident rather than homicide15, In an attempt to increase safety at work and prevent such 'accidents', the HSWA 1974 makes it an offence for an employer to breach a duty 'to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all of his employees'.
The offences under the Act are drafted without any reference to whether a worker is killed or injured or not. The crime is simply the failure to maintain proper safety standards. D. Bergman has criticised the Act and demanded for the amendments17. He stated that as the law stands, it imposes almost all safety duties on companies18. That allows directors to escape from financial liabilities and reduces their individual safety obligations and criminal accountability.