Corporate manslaughter is a
crime in several
jurisdictions, including
England and Wales and
Hong Kong. It enables a
corporation to be punished and censured for culpable conduct that leads to a person's death. This extends beyond any compensation that might be awarded in
civil litigation
Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the United States, the term refers to non-criminal law. The law re ...
or any criminal prosecution of an individual (including an employee or contractor). The
Corporate Manslaughter and Corporate Homicide Act 2007
The Corporate Manslaughter and Corporate Homicide Act 2007 (c. 19) is an Act of the Parliament of the United Kingdom that seeks to broaden the law on corporate manslaughter in the United Kingdom. The Act created a new offence respectively named ...
came into effect in the UK on 6 April 2008.
Theory
Clarkson identifies six theories of corporate manslaughter:
*Identification doctrine;
*Aggregation doctrine;
*Reactive corporate fault;
*Vicarious liability;
*Management failure model; and
*Corporate ''
mens rea''.
Identification doctrine
This approach holds that the offence of corporate manslaughter is made out when an individual commits all the elements of the offence of
manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th c ...
and that person is sufficiently senior to be seen as the
controlling mind of the corporation. Prior to the Corporate Manslaughter and Corporate Homicide Act 2007, this is how the law applied in England and Wales.
Aggregation doctrine
This approach, known in the
U.S.
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territo ...
as the collective knowledge doctrine, aggregates all the acts and mental elements of various company employees and finds the offence if all the elements of manslaughter are made out, though not necessarily within a single controlling mind. This approach is used in the U.S. but has been rejected in England and Wales.
Reactive corporate fault
This idea was proposed by Fisse and Braithwaite. They proposed that where an individual had committed the ''
actus reus
(), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in th ...
'' of manslaughter, a court should have the power to order the employing corporation to institute measures to prevent further recurrence and should face criminal prosecution should they fail to do so.
Vicarious liability
The broader principle of
vicarious liability
Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, '' respondeat superior'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the re ...
(''
respondeat superior
''Respondeat superior'' ( Latin: "let the master answer"; plural: ''respondeant superiores'') is a doctrine that a party is responsible for (has vicarious liability for) acts of their agents.''Criminal Law - Cases and Materials'', 7th ed. 2012, ...
'' in the U.S.) is often invoked to establish corporate manslaughter. In the U.S., where an employee commits a crime within the sphere of his employment and with the intention of benefitting the corporation, his criminality can be imputed to the company. The principle has sometimes been used in England and Wales for
strict liability offences concerning regulatory matters but the exact law is unclear.
Management failure model
This is the approach to be taken under the
Corporate Manslaughter and Corporate Homicide Act 2007
The Corporate Manslaughter and Corporate Homicide Act 2007 (c. 19) is an Act of the Parliament of the United Kingdom that seeks to broaden the law on corporate manslaughter in the United Kingdom. The Act created a new offence respectively named ...
which came into force in the UK in April 2008. Where a corporation's activities cause a person's death and the failure was because of a breach that falls far below what can reasonably be expected of the organisation in the circumstances, the offence is made out.
Corporate ''mens rea''
A further approach is to accept the
legal fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
Devel ...
of
corporate personality
Corporate personality is a concept in Christian theology that was articulated by H. Wheeler Robinson. As originally formulated, it dealt with areas of the Old Testament where the relationships between individuals and the groups that they were pa ...
and to extend it to the possibility of a corporate ''mens rea'', to be found in corporate practices and policies.
This approach has been widely advocated in the U.S., as the corporate ethos standard and introduced in
Australia in 1995.
Support and criticism of the concept
Clarkson identifies four valuable characteristics of criminal prosecution:
*Stronger procedural protection of corporations, such as proof
beyond reasonable doubt
Beyond a reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the balance of probabilities standard commonly used in civil cases, bec ...
;
*More powerful enforcement agencies, such as the
Health and Safety Executive in the
UK;
*The stigma and censure that follow from conviction; and
*The symbolic role of criminal law that "sends a message" to society.
However, the existence of such a crime has been criticised, especially from the point of view of
law and economics which argues that civil
damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
are a more appropriate means of compensation, recognition of the loss suffered and deterrence.
[Clarkson (1998)] Such arguments emphasise that, because the civil courts award compensation commensurate with the damage done, they apply the appropriate level of deterrence.
Again, such arguments contend that "over-deterrence" may divert resources from other socially beneficial activities.
A further strand of criticism holds that only individuals can commit crimes. Further, it is individuals who feel the threat of deterrence. In
England in 1994, OLL Ltd. were convicted of corporate manslaughter over the
Lyme Bay kayaking tragedy
The Lyme Bay kayaking disaster was a 1993 incident that led to the death of four teenagers on a sea kayaking trip in the Lyme Bay area on the south coast of England. The incident led to legislation to regulate adventure activities centres work ...
and
fined £60,000 while Peter Kite, one of the company's
directors
Director may refer to:
Literature
* ''Director'' (magazine), a British magazine
* ''The Director'' (novel), a 1971 novel by Henry Denker
* ''The Director'' (play), a 2000 play by Nancy Hasty
Music
* Director (band), an Irish rock band
* ''Di ...
, was
sentenced to three years'
imprisonment, arguably a greater influence on the conduct of company managers.
Further, a corporation may simply be a "veil" for an individual's activities, easily
liquidated
Liquidation is the process in accounting by which a company is brought to an end in Canada, United Kingdom, United States, Ireland, Australia, New Zealand, Italy, and many other countries. The assets and property of the company are re ...
and with no reputation to protect.
Again it is argued, company fines ultimately punish
shareholders,
customer
In sales, commerce, and economics, a customer (sometimes known as a client, buyer, or purchaser) is the recipient of a good, service, product or an idea - obtained from a seller, vendor, or supplier via a financial transaction or exchange for ...
s and
employees in general, rather than culpable managers.
By jurisdiction
United Kingdom
*
Corporate manslaughter (England and Wales)
Corporate manslaughter is a criminal offence in English law, being an act of homicide committed by a company or organisation. In general, in English criminal law, a juristic person is in the same position as a natural person, and may be convicted ...
Australia
The
Australian Capital Territory
The Australian Capital Territory (commonly abbreviated as ACT), known as the Federal Capital Territory (FCT) until 1938, is a landlocked federal territory of Australia containing the national capital Canberra and some surrounding townships. I ...
, Queensland, the Northern Territory and Victoria recognise the crime of
Industrial manslaughter.
Canada
In
Canada, Bill C-45 was enacted as a response to the
Westray Mine
The Westray Mine was a Canadian coal mine in Plymouth, Nova Scotia. Westray was owned and operated by Curragh Resources Incorporated (Curragh Inc.), which obtained both provincial and federal government money to open the mine, and supply the loca ...
explosion that killed twenty-six miners in 1992. The Bill added a new section to
the Canadian ''Criminal Code'' ("217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.") and adds sections 22.1 and 22.2 to the ''Criminal Code'' to impose criminal liability on organizations for negligence (s. 22.1) and other offences (s. 22.2).
New Zealand
In 2012, proposals were put forward in the
New Zealand Parliament for a corporate manslaughter statute, in the wake of the CTV building collapse during the
2011 Canterbury earthquake, and the
Pike River Mine disaster
The Pike River Mine disaster was a coal mining accident that began on 19 November 2010 in the Pike River Mine, northeast of Greymouth, in the West Coast region of New Zealand's South Island following a methane explosion at approximately 3:44 ...
. As of March 2015
Labour Party leader
Andrew Little had a
private member's bill
A private member's bill is a bill (proposed law) introduced into a legislature by a legislator who is not acting on behalf of the executive branch. The designation "private member's bill" is used in most Westminster system jurisdictions, in whi ...
in the ballot that would, if passed, add a charge of corporate manslaughter to the
Crimes Act 1961.
United States
In the U.S. there is currently no corporate manslaughter law. However, there have been numerous calls in the literature for a "
corporate death penalty". Most recently a study argued that industries that kill more people each year than they employ should have an industry-wide corporate death penalty.
See also
*
Corporate crime
In criminology, corporate crime refers to crimes committed either by a corporation (i.e., a business entity having a separate legal personality from the natural persons that manage its activities), or by individuals acting on behalf of a corp ...
*
Judicial dissolution
Judicial dissolution, sometimes called the corporate death penalty, is a legal procedure in which a corporation is forced to dissolve or cease to exist.
Dissolution is the revocation of a corporation's charter for significant harm to society. In ...
*
Capital punishment
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
References
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{{DEFAULTSORT:Corporate Manslaughter
Corporate crime
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