The Law On Involuntary Manslaughter Needs Reform

. In Particular, The Law On Corporate Manslaughter I Essay, Research Paper

Public

confidence in the law and the judiciary has been seriously affected in the last

few years with a number of disasters where the law of manslaughter, as it

currently stands in England and Wales has failed to lead to any prosecutions.

There has been the growing perception that the law dealing with corporate

manslaughter is ineffective following public inquiries, which have found

serious fault with, and been highly critical of various corporate bodies. It

would seem that as companies grow larger and have more power so there should be

at the same time an increase in the responsibility that these companies have

towards society in general. Therefore just as individuals in society owe a duty

to each other not to unlawfully kill each other so should companies owe that

duty to society as well. [1]Society.s

perception of large companies is such that they are seen as the correct body

which must be blamed rather than individuals when disasters happen.[2]

This can be demonstrated by the action brought by the relatives of the victims

following the sinking of the Herald of Free

Enterprise[3]. The

relatives in this case were seeking primarily the prosecution of P&O and not of the individual

employees involved with the disaster.Under the law in

England and Wales as it currently stands, the method by which companies are

held criminally responsible for manslaughter is that of the doctrine of identification[4].

This involves having to identify someone who is sufficiently senior within the

company who can be said to represent the .mind and will. of the company. If

this person commits a crime within the course of their employment, that crime,

and the mens rea of it can then be

attributed to the company, which becomes identified with it and can therefore

be held liable. Where this occurs it will then be possible to prosecute both

the individual concerned and the company.There has been

some difficulty by the courts in deciding at exactly what level this directing

mind should be in the company. In the Meridian Global Funds Management Asia Ltd. V

Securities Commission [5]case

the Privy Council held that not every case should be forced into a .single

formula. of the .directing mind and will. type but that the way the particular

offence is committed is important. In this case it was held that the investment

manager was of a sufficient senior level to be held responsible. Lord Hoffman

seemed to be arguing that there should be a wider scope for responsibility,

with the main question being, .whose act (or knowledge, or state of mind) was

for this purpose intended to count as the act of the company.. This would seem

to extend the traditional view of the doctrine of identification, with the idea

being that this particular person was authorized to do this job, and therefore

their acts can be attributed to the company. Each case becomes therefore . a special

rule of attribution for the particular substantive rule..[6]

Therefore a person who before could not have been said to be senior enough in

the company could now possess the necessary mens

rea for the crime of corporate manslaughter. However the problem still

remains that a particular person has to be identified within the company whose acts and knowledge can be

attributed to the company as a whole. Often it will also be shown that fault

did not lie with a particular individual but rather with the company itself, in

the form of procedures or safety measures which were not implemented. In the Herald of Free Enterprise case[7] the fact that the prosecution failed was that there was no individual in P&O who held responsibility for

safety and there were no safety policies in place. The Sheen Report[8]

made it clear that the fault for the disaster lay with company policies, or the

lack of them, and that the company was at fault for failure to give clear

safety instructions to its employees. Thus in cases where there is clear

evidence of corporate failure, and a .disease of sloppiness.[9]

infecting the entire work force, the doctrine of identification prevents any

prosecution from taking place in criminal law, as a single individual (or

individuals) will still need to be shown as having the necessary acts and

knowledge that can be attributed to the company. It is important to note

however that despite the failure of the P&O

case, as expalined above, that Turner J did rule that the indictment for

manslaughter could stand and that future cases should be decided on a case by

case basis.[10] Furthermore

Bingham LJ did rule that he saw, .no reason in principle why such a charge (corporate manslaughter) should not be

established.[11].More recently

following the Southall Rail Crash

(September 1997) in which seven people died, the Court of Appeal held

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