Corporate killing reforms

This was stated to be the case in R v CHURCH [1967] 1 QB 59 – CA, where Edmund Davies said, 'the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm'; and was confirmed in DPP v NEWBURY AND JONES [1976] 2 All ER 365 – HL. So, CHURCH decided that the unlawful act must not only be dangerous but also that the standard is objective.

What I mean by this is that it is not necessary for the defendant himself to realise that his act was dangerous – all that is required is for a reasonable man to consider that the act was dangerous. In other words, the defendant could be completely unaware, oblivious and so on that his illegal act was dangerous and still be guilty of constructive manslaughter. NEWBURY confirmed this and added that it did not matter even if the defendant was unaware that he was committing an unlawful act. Now, we do know from these two cases that the unlawful act must be dangerous.

If the unlawful act is not dangerous or is not likely to lead to physical – not emotional – harm according to a reasonable man, then we are not talking constructive manslaughter. Before we look at a case, imagine that the reasonable man is actually there at the scene of the crime, though invisible; that he is watching what is going on. In R v DAWSON [1985] Crim LR 383 – CA, during an attempted robbery of a garage, the defendants had frightened the victim, who suffered from a heart condition, with an imitation pistol. He died.

Now, whilst they had caused his death, they were not guilty of constructive manslaughter because the reasonable person would only have foreseen fear and not physical harm to the victim and neither would the reasonable man have been aware of the heart condition. In the next lecture, we will have a look at the situation where a homicide is committed but, for whatever reason, constructive manslaughter does not apply. If the act causing death does not amount to constructive manslaughter, then the prosecution must prove gross negligence in order to obtain a conviction.

There are various reasons why scenarios do not amount to constructive manslaughter: the act may be lawful, for example an operation in hospital; or there may have been an omission rather than an act, for example STONE & DOBSON, a case I referred to in the actus reus lecture. So, the sixty-four thousand dollar question: what is gross negligence? Now, had you been studying this area of law ten years ago, then it would have taken at least a couple of lectures to explain. Luckily, in 1994 the House of Lords helped out enormously in the case of R v ADOMAKO [1995] AC 171 – HL.

I will come to ADOMAKO shortly, but first I want you to get the feel of gross negligence and I am going to use an example used by my old university Professor, Brian Hogan, who sadly died some years ago. Forgetting about Road Traffic Acts for a moment, supposing you were driving at 40 m. p. h. through a village at lunchtime where the speed limit was 30 m. p. h. 'Well, that's no big deal,' you would say. I would frown a little and then perhaps agree that it was no big deal. Now, supposing you were driving at 50 m. p. h. , your answer might not be quite so sure.

Supposing it were 60 m. p. h.? At this stage, you would probably say that you were driving dangerously. Now, were you to have killed a child who ran onto the road at this stage, there would be a pretty certain conviction of causing death by dangerous driving under section 1 Road Traffic Act 1988, as amended by the Road Traffic Act 1991. We'll now jump a little. Supposing you were driving at 100 m. p. h.? Have you gone white? You should have done because at this stage you will have been indicted for gross negligence manslaughter!

I hope you can see from this that gross negligence manslaughter involves, as Lord Hewart CJ said in R v BATEMAN (1925) 19 CAR 8, 'such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment'. Very importantly, what does amount to 'such disregard' is a matter for the jury, and the only direction that a judge will give them is, essentially, that they must decide whether or not the defendant's behaviour was so bad that it rose to the level of gross negligence manslaughter.

So, in the case of you speeding through the village, the jury would probably sit down and deliberate as to what exactly was the 'cut-off' speed that amounted to gross negligence, given the time of day, road conditions et cetera. If you were above that, then you would be in for the chop! Let's have a look at ADOMAKO. The case was a consolidated appeal of four defendants who were convicted of manslaughter in three separate cases. Two were doctors, one was an anaesthetist and the other was an electrician. All raised the issue of the correct direction on the mens rea of manslaughter where no unlawful act is involved.

In ADOMAKO Lord Mackay said that in determining gross negligence manslaughter, 'the ordinary principles of the [civil] law of negligence apply'. So, manslaughter by gross negligence runs parallel to the tort of negligence. Just to repeat and so that we know what we are talking about, we are concerned with tortious negligence – see elsewhere in this Module – so the ingredients of involuntary manslaughter that the prosecution must prove are the existence of a duty of care towards others and the breach of that duty causing death.

In terms of breach, though, the critical difference in the tort and the crime is the extent of the breach of the duty of care – the grossness of the negligence. The jury must decide that the defendant's behaviour was so gross it amounted to a crime. The jury must consider 'whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount, in their judgment, to a criminal act or omission'. We are judging the defendant's behaviour by the standards of the reasonable man and we know that this is objective.

Therefore, the defendant's state of mind is not relevant and this was confirmed in ATTORNEY GENERAL'S REFERENCE (No 2 of 1999) [2000] 3 All ER 182 – CA, which concerned the 1997 Southall rail crash. Here, the Attorney General sought the opinion of the Court of Appeal on the question whether a defendant could properly be convicted of manslaughter by gross negligence in the absence of evidence of his state of mind. The court held that a defendant could properly be so convicted. Of course, as Rose LJ said, 'a defendant who is reckless…

may well be the more readily found to be grossly negligent to a criminal degree'; in other words, if somebody behaves recklessly in the ordinary meaning of the word, it is good evidence of gross negligence. Now, those of you who are acquainted with the rules of negligence will be aware that a defendant will not be liable for a negligent act unless it was foreseeable. So, in considering whether a defendant is guilty of gross negligent manslaughter, a jury must be satisfied that the foresight requirement is met.

The requirement is that a reasonable man would foresee 'not merely of injury or even of serious injury but of death'. This was made clear in R v SINGH [1999] Crim LR 582 – CA and followed in LEWIN v CPS [2002] EWHC 1049 – DIV. In SINGH, the victim tenant died of carbon monoxide poisoning and death was foreseeable by the landlord's son who was in charge of maintenance. In LEWIN, the Crown Prosecution Service made the correct decision in not prosecuting a friend of the deceased, who left him drunk and asleep in a car after a serious drinking session at the Exotis Club in Marbella, Spain.

I'll just round off this part of our chat with a case example of the Adomako principles in operation. In R v LITCHFIELD (1998) Crim LR 507 – CA, the prosecution arose from a disaster at sea when the vessel of which the appellant was owner and master foundered off the north Cornish coast with the deaths of three of her crew. At a critical moment, her engines stopped and within minutes she was blown onto rocks and broke up completely.

The case against the defendant captain was one of gross negligence in two basic respects: firstly, he had steered an unsafe course, too close to a dangerous shore; and secondly he had sailed so as to have to rely on the vessel's engines when he knew that they might fail through fuel contamination. The jury convicted the defendant of manslaughter. Before we sign off, I just want to mention corporate manslaughter. The Law Commission report, Legislating the Criminal Code: Involuntary Manslaughter, has been approved by the Government and there may be legislation in the coming year.

So, what is corporate manslaughter? Well, to start with, corporations – or companies – are treated by the law, by way of a legal fiction, as having a distinct legal personality of their own: as having their own heart beat, if you like. They can therefore sue and be sued by other companies and individuals, make contracts, employ people, and so on. By extension, companies can commit crimes. 'But a company doesn't have a mind', I hear you say! Well, it does: the mind of a company is that of its most senior management, usually the managing director or chief executive.

So, if it can be shown that this person has shown 'such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment', then the company could be liable for corporate manslaughter as well as the senior manager. This was decided in R v P & O EUROPEAN FERRIES (DOVER) LTD [1991] CAR 72 – CCC. The problem is that corporate manslaughter is difficult to prove and so there have been hardly any successful prosecutions. This problem has been highlighted by a succession of rail crashes over the past five or six years.

Indeed, Great Western Trains, initially charged with manslaughter, had the charge dropped after a preliminary ruling by Scott Baker J in R v GREAT WESTERN TRAINS [1999] LTL C7800570 – CCC. That said, it is reported that Railtrack may face charges over the Hatfield disaster but it is unlikely. In any event, the Home Office has proposed a new offence of 'corporate killing' which will make companies liable when they fall far below standards that could reasonably be expected in the circumstances of the case.

In case you are wondering what the purpose is of convicting a company for manslaughter, the answer is that the courts would then be in a position to impose a fine of any amount which would go some way to satisfying public opinion that justice has been done. Also, it would make management think before embarking on potentially hazardous ventures. If you have a mind to look at this aspect of manslaughter in a little more detail, then take a walk round Corporate killing reforms [2001] NLJ 912 and Company at fault [2001] SJ 651.