Corporate manslaughter

Last updated

Corporate manslaughter is a crime in several jurisdictions, including England and Wales and Hong Kong. [1] 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 or any criminal prosecution of an individual (including an employee or contractor). The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect in the UK on 6 April 2008.

Contents

Theory

Clarkson identifies six theories of corporate manslaughter: [2]

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 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. [2]

Aggregation doctrine

This approach, known in the U.S. 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. [2]

Reactive corporate fault

This idea was proposed by Fisse and Braithwaite. [3] They proposed that where an individual had committed the actus reus 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. [2]

Vicarious liability

The broader principle of vicarious liability ( respondeat superior 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. [2]

Management failure model

This is the approach to be taken under the Corporate Manslaughter and Corporate Homicide Act 2007 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. [2]

Corporate mens rea

A further approach is to accept the legal fiction of corporate personality and to extend it to the possibility of a corporate mens rea, to be found in corporate practices and policies. [2] This approach has been widely advocated in the U.S., as the corporate ethos standard [4] and introduced in Australia in 1995. [5]

Support and criticism of the concept

Clarkson identifies four valuable characteristics of criminal prosecution: [2]

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 are a more appropriate means of compensation, recognition of the loss suffered and deterrence. [2] Such arguments emphasise that, because the civil courts award compensation commensurate with the damage done, they apply the appropriate level of deterrence. [6]

... pursuing corporate criminal liability results in society bearing the higher sanctioning costs of stigma penalties and the increased costs of deterring corporate misbehaviour created by the procedural protections of criminal law.

— Khanna (1996) p.1533

Again, such arguments contend that "over-deterrence" may divert resources from other socially beneficial activities. [7]

... when the penalty exceeds the social harm, the problem of socially excessive product prices and litigation costs again arises.

— Fischel & Sykes (1996), p.325

A further strand of criticism holds that only individuals can commit crimes. [8] 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 and fined £60,000 while Peter Kite, one of the company's directors, was sentenced to three years' imprisonment, arguably a greater influence on the conduct of company managers. [2] [9] Further, a corporation may simply be a "veil" for an individual's activities, easily liquidated and with no reputation to protect. [2] Again it is argued, company fines ultimately punish shareholders, customers and employees in general, rather than culpable managers. [2]

By jurisdiction

United Kingdom

Australia

The Australian Capital Territory, 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 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). [10]

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, [11] and the Pike River Mine disaster. [12] As of March 2015 Labour Party leader Andrew Little had a private member's bill in the ballot that would, if passed, add a charge of corporate manslaughter to the Crimes Act 1961. [13]

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". [14] [15] [16] [17] Most recently a study argued that industries that kill more people each year than they employ should have an industry-wide corporate death penalty. [18]

See also

Related Research Articles

In criminal law, mens rea is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of mens rea and actus reus before the defendant can be found guilty.

<span class="mw-page-title-main">Corporate crime</span> Crimes committed either by a corporation or its representatives

In criminology, corporate crime refers to crimes committed either by a corporation, or by individuals acting on behalf of a corporation or other business entity. For the worst corporate crimes, corporations may face judicial dissolution, sometimes called the "corporate death penalty", which is a legal procedure in which a corporation is forced to dissolve or cease to exist.

Vehicular homicide is a crime that involves the death of a person other than the driver as a result of either criminally negligent or murderous operation of a motor vehicle.

The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed in the commission of a dangerous or enumerated crime, the offender, and also the offender's accomplices or co-conspirators, may be found guilty of murder.

In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining criminal liability, or offenses that requires mens rea, a mental state of guilt.

Culpable homicide is a categorisation of certain offences in various jurisdictions within the Commonwealth of Nations which involves the illegal killing of a person either with or without an intention to kill depending upon how a particular jurisdiction has defined the offence. Unusually for those legal systems which have originated or been influenced during rule by the United Kingdom, the name of the offence associates with Scots law rather than English law.

<i>R v Creighton</i> Supreme Court of Canada case

R v Creighton, [1993] 3 S.C.R. 3 is a landmark case from the Supreme Court of Canada where the Court found that the standard for criminal liability for some offences can be lowered and not offend the Charter. This case marked the last in a series of cases, beginning with R. v. Tutton, discussing the use of an objective standard for determining mens rea in criminal offences.

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 for committing many offences. The Court of Appeal confirmed in one of the cases following the Herald of Free Enterprise disaster that a company can, in principle, commit manslaughter, although all defendants in that case were acquitted.

A mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the mental element. This is unlike a mistake of law, which is not usually a defense; law enforcement may or may not take for granted that individuals know what the law is.

Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions.

Corporate liability, also referred to as liability of legal persons, determines the extent to which a company as a legal person can be held liable for the acts and omissions of the natural persons it employs and, in some legal systems, for those of other associates and business partners.

Most jurisdictions in the United States of America maintain the felony murder rule. In essence, the felony murder rule states that when an offender kills in the commission of a dangerous or enumerated crime, the offender, and also the offender's accomplices or co-conspirators, may be found guilty of murder. It means that the common law malice required for murder is "implied as a matter of law for homicides arising from felonies." It is a widely criticized feature of American criminal law. Initially, it was widely believed by scholars that the felony murder rule had originated in England. However, more recent scholarship has argued that it likely originated in America separately from England. Its historic roots have been called "deep but terribly obscure".

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 century BC.

Although the legal system of Singapore is a common law system, the criminal law of Singapore is largely statutory in nature and historically derives largely from the Indian penal code. The general principles of criminal law, as well as the elements and penalties of general criminal offences such as assault, criminal intimidation, mischief, grievous hurt, theft, extortion, sex crimes and cheating, are set out in the Singaporean Penal Code. Other serious offences are created by statutes such as the Arms Offences Act, Kidnapping Act, Misuse of Drugs Act and Vandalism Act.

<span class="mw-page-title-main">Crimes Act 1900</span> Legislation of NSW, Australia that establishes a majority of criminal offences

The Crimes Act1900 (NSW) is an Act of the Parliament of New South Wales that defines an extensive list of offences and sets out punishments for the majority of criminal offences in New South Wales (NSW), Australia. The Act, alongside the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth), form the almost complete basis of criminal law for the State. It is the primary criminal law statute of NSW, and which formed the basis for the Australian Capital Territory's Crimes Act1900 (ACT).

<span class="mw-page-title-main">English criminal law</span> Legal system of England and Wales relating to crime

English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.

<span class="mw-page-title-main">Corporate Manslaughter and Corporate Homicide Act 2007</span> United Kingdom legislation

The Corporate Manslaughter and Corporate Homicide Act 2007 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 corporate manslaughter in England and Wales and Northern Ireland, and corporate homicide in Scotland.

The case of Transco Plc v HMA[2004] S.L.T. 41 was the first ever prosecution for culpable homicide in Scotland with regards to a public limited company. The decision is seen as significant in UK corporate manslaughter law and in particular in Scots law, as there are very few cases which address the criminal liability of corporations under Scots law.

Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.

English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim's legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the "Queen's peace". The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim's death, so long as the former caused the latter.

References

  1. ↑ Jackson, Michael (2003), Criminal law in Hong Kong, p.400, Hong Kong University Press.
  2. 1 2 3 4 5 6 7 8 9 10 11 12 Clarkson (1998)
  3. ↑ Fisse (1983), Fisse & Braithwaite (1988, 1994)
  4. ↑ Ragozino (1995)
  5. ↑ Rose (1995)
  6. ↑ Khanna (1996)
  7. ↑ Fischel & Sykes (1996)
  8. ↑ Meridian Global Funds Management Asia Ltd. v. Securities Commission [1995] 2 AC 500, at 507 per Lord Hoffmann
  9. ↑ R v. Kite and Others, The Independent, 9 December 1994
  10. ↑ "Bill C-45 - Overview". Canadian Centre for Occupational Health & Safety. 2015-03-18.
  11. ↑ Tracy Watkins (2013-03-26). "Corporate manslaughter law change weighed". Fairfax NZ.
  12. ↑ "Pike River hearing told corporate manslaughter charge needed". Fairfax NZ. 2012-04-03.
  13. ↑ "Crimes (Corporate Manslaughter) Amendment Bill". NZ Parliament. 2013-12-03.
  14. ↑ Markoff, Gabriel (2012–2013). "Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century". University of Pennsylvania Journal of Business Law. 15: 797.
  15. ↑ Ramirez, Mary Kreiner (2005). "The Science Fiction of Corporate Criminal Liability: Containing the Machine through the Corporate Death Penalty". Arizona Law Review. 47: 933.
  16. ↑ Ramirez, Mary Kreiner; Ramirez, Steven A. (2017-01-31). The Case for the Corporate Death Penalty: Restoring Law and Order on Wall Street. NYU Press. ISBN   9781479881574.
  17. ↑ Amann, Diane Marie (2000–2001). "Capital Punishment: Corporate Criminal Liability for Gross Violations of Human Rights". Hastings International and Comparative Law Review. 24: 327.
  18. ↑ "Do industries that kill more people than they employ have a right to exist?". Big Think. 2019-02-24. Retrieved 2019-03-09.

Bibliography

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.