The systems of Health and Safety regulations tend to decriminalise deaths and accidents (Lacey,Wells and Quick:forthcoming b:1) as prosecutions are brought through the HSE rather than the police and the CPS, such regulation authorities prefer a supportive approach and only bring prosecutions in 20% of cases where death has occurred (Mujih:2008:80). The fact that prosecutions are not brought by the police inherently means that Health and Safety regulations are unlikely to be seen as criminal, alongside this the term ‘regulation’ automatically decriminalises the offence.
Not only are there significant problems in the law and the perception of those enforcing it, there are also problems in the way in which the law is implemented. Under the normal rules of criminal law for individuals, one can be arrested and interviewed, with plea bargaining and other such tactics playing a large part in the production of guilty pleas. One cannot arrest a company and place such psychological pressure on them, meaning that normal tactics used to produce guilty pleas cannot apply, creating a system within which large companies will always plead not guilty, resulting in a long trial, with complex issues of civil law being brought into play to distract from the main purpose of the trial, this in itself helps to decriminalise the whole procedure. Alongside this, one can argue that there is almost a dual system of criminal justice as those individually prosecuted often have little money and have to rely on legal aid. Whereas, large corporations and organisations can afford to pay highly skilled defence solicitors for extended periods of time, meaning constraints which are normally felt by the less well off have little effect on them. In other words, they can use every due process loop hole possible in order to avoid prosecution.
Changes Made by the Act
It is important to first note that ‘the Act’ itself abolishes prosecution for corporate manslaughter at common law under Section 20.
Under Section 1 (3) of ‘the Act’ an offence can only occur if the senior management’s involvement is a substantial element in the breach of the duty of care. The focus on individual contributions is arguably of little improvement on the identification doctrine. Arguably, the imposition of “senior management” in the offence will present many of the same problems of the common law. As it will force the inquiry back onto the issue of which individuals are involved (Omerod and Taylor:2008:604). The imposition of the “senior management” test can be a defence solicitors dream. As it allows for lengthy debate over the individuals involvement and whether they can correctly be identified as “senior management”. The test is however, some improvement on the identification doctrine, as the senior management only need be a substantial element in a breach, it allows for the consideration of the involvement of others and need not only be the actions or inactions of directors which led to the death.
The company must owe a relevant duty of care to the victim that is connected to certain actions done by the company, this position reflects that of the common law of gross negligence manslaughter (Craig:2009:19). Understandably the common law has been used as a building blocks for the offence. Arguably, the retention of such a duty of care is necessary in the offence of corporate manslaughter. However, the relevance of civil law in the context of criminal law has been queried.
There is a significant problem in ‘the Acts’ definition of causation, it requires proof that a death was caused ‘by the way that an organization managed or organised its activities’. Originally the Law Commission saw the difficulties in proving causation and included an explanatory provision that a management failure ‘may be regarded as a cause of a person’s death notwithstanding that the immediate cause is the act or omission of an individual.’ However, the government left it out of ‘the Act’, despite the fact that the House of Lords in R v Kennedy confirmed that ‘causation is not a single unvarying concept’.
The Home Office in its 2000 consultation paper suggested that a corporation would be guilty of corporate killing if death were caused by a management failure and that failure constituted conduct falling far below what could reasonably be expected in the circumstances. There would be a management failure if the way in which the corporation’s activities were managed or organised failed to ensure the health and safety of persons employed in or affected by those activities. By returning the focus to senior management the government has retained a stricter test of liability, which requires attribution of blame to individuals rather than a focus on what the company has failed to do (Clough:2007:298). A test which did not require attribution of blame would make the prosecution of large corporations much easier.
A major improvement ‘the Act’ has made is under Section 8 (3) (a)(b) which allows for the jury to consider ‘attitudes, policies, systems or accepted practices and to have ‘regard to any health and safety guidance’. The inclusion of these clauses shows a concession to the aggregation doctrine. However, it has been argued that ‘the Act’ would have achieved its legitimate aim, by simply using Section 8 as the test to prove liability rather than requiring the “senior management” element. The fact that the senior management requirement has been imposed into ‘the Act’ demonstrates how watered down the Act has become from the original proposals. The watering down of the Act is undoubtedly due to pressure on the government from large corporations wishing to protect their own interests.
What would be more effective?
The Australian Criminal Code Act 1995 has clearly shown that the ‘powerful’ can be criminalised. The Act deals with corporate liability by providing that for offences of intention, knowledge or recklessness a ‘fault element must be attributed to a body corporate that authorised or permitted the commission of the offence.’ (Lacey, Wells and Quick:Forthcoming b:15). By focusing on the ‘corporate culture’, the Australian model allows for large companies and organisations to be held liable where necessary. The absence of the “senior management” test, allows liability to be attributed where the company as a whole has failed to perform its duty of care. This system is clearly preferable to that of the UK, which has been watered down to such an extent that it barely addresses the criticisms of the common law. Some have argued that the Australian model will open up a “blame culture” (Eyre:2005:30 ). However, the offence consists of a physical and a fault element, and both must be proved in order to establish criminal liability which would prevent such a culture arising. It’s clear that the Australian model provides a way of adequately criminalising the ‘powerful’; not only this it provides a system for imposing general corporate liability as it does not focus only on corporate manslaugter.
Has the Act done little to address the problem of criminalising the powerful?
‘The Act’ has made little change to sentencing, however the courts can order the company to advertise the conviction and impose remedial orders. These powers are an improvement on the common law which could only demand the payment of a fine. However, the remedial order in particular seems to do little to criminalise the company, rather merely remedy the Health and Safety Breach. Alongside this, the Act has no direct impact on the behaviour of directors and as such has little deterrent effect (Harris:2007:322). This shows how little ‘the Act’ has done to criminalise the powerful.
The main issue with ‘the Act’ is that rather than dealing with the problem of corporate criminality, it restricts itself to the offence of corporate manslaughter. (Gobert:2007:414). By requiring that “senior management” play a significant role in the breach of duty, ‘the Act’ comes across the same problems as the identification doctrine. The requirement for senior management to be identified and for a duty of care to be established, has provided defendants with an opportunity to divert attention, and spend time working through complex issues of civil law which undoubtedly confuse a jury, and unravelling contentious issues, which have little relevance to the role the organisation in the incident (Gobert:2007:417)
As Williams suggested (Criminal Law:196:865) “the danger in the practice of prosecuting corporation is that they offer too obvious and easy a target”. Unless individuals are also convicted, “the punishment of corporations is of small relevance to the purposes of the criminal law.” The public have and always will have a conception of justice against an individual, however, ‘the Act’ provides that individuals cannot be prosecuted, this allows directors to hide behind the firm and in many cases designate Health and Safety responsibility to lower management, rather than accept responsibility.
Conclusion
Arguably, ‘the Act’ does underline the difficulties seen in the UK with criminalising the powerful. Health and Safety law have always struggled to be categorised as criminal, this is partially down to the legislation and partially due to the fact it is enforced by the HSE rather than the police and the CPS. Surprisingly, this view is enforced by the Home Office, which implies that the police are essential in the characterisation of a wrong as ‘criminal’. (Almond:2007:290) The lobbying efforts of the police and large corporations have clearly paid off as ‘the Act’ has been watered down significantly from its original proposals. This is a clear example of one of the difficulties of criminalising the powerful. The problem does not only lie in the court, but in the passing of the legislation in the first place. It is well accepted that government ministers are unwilling to jeopardise their relationships with big businesses and are susceptible to outside influences, which will mean the ‘powerful’ will never be subjected to legislation that is hugely detrimental to their interests.
Despite the fact ‘the Act’ has seemingly made little change, it does not in itself underline the problems of criminalising the powerful. Despite the extensive academic comment on ‘the Act’ there have been no prosecutions to date ; this makes it difficult to draw an accurate conclusion as to the effect ‘the Act’ will have. As the Australian model shows, the powerful can be criminalised, so long as the relevant legislation can be passed, and there is a change in the regulation culture of the HSE towards bringing more prosecutions and an acceptance that beaches of Health and Safety legislation are criminal rather than lesser offences.
List of References
Almond P ‘Regulation Crisis: Evaluating the Potential Legitimizing Effects of “Corporate Manslaughter” Cases’ Law and Policy 2007, 29(3), 285-310
Clough J ‘Bridging the theoretical gap: the search for a realist model of corporate criminal liability’ Criminal Law Forum 2007, 18(3/4), 267-300
Craig R ‘Thou shall do no murder: a discussion paper on the Corporate Manslaughter and Corporate Homicide Act 2007’ Company Lawyer 2009, 30(1), 17-20
Eyre B ‘Convicting corporate killers’ European Lawyer 2005 46, 28-30
Gault I and McGrane R ‘Corporate manslaughter in major disasters’ (1991) International Company and Commercial Law Review 2(5), 166-171
Gobert J, ‘The Corporate Manslaughter and Corporate Homicide Act 2007 – Thirteen years in the making, but was it worth the wait? (2008) 71(3) Modern Law Review 413-433.
Gobert J, ‘Corporate Criminality: four models of fault’ (1994) 14 Legal Studies 393
Harris J ‘The Corporate Manslaughter and Corporate Homicide Act 2007: unfinished business?’ Company Lawyer 2007 28(11), 321-322
Lacey, Wells and Quick (forthcoming b), ‘The rise of corporate manslaughter’ (pre-publication version)
Mujih E ‘Reform of the law on corporate killing: a toughening or softening of the law?’ Company Lawyer 2008, 29(3), 76-83
Ormerod D and Taylor R ‘The Corporate Manslaughter and Corporate Homicide Act 2007’ [2008] Criminal Law Review 589-611.
Wells C, (2006), ‘Corporate Manslaughter: Why Does Reform Matter?’, 122 South African Law Journal 646-662
Williams G Criminal Law: the general part (2nd ed) (London 1963)
Cases:
R v Adomako [1995] 1 A.C. 171
R v P & O European Ferries (Dover) Ltd (1991) Cr App R 72
R v Wacker [2003] 1 Cr App R 329 at 338
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Legislation:
Criminal Justice Act 2003
The Corporate Manslaughter and Corporate Homicide Act 2007
Websites:
- Last accessed March 2010
- Last accessed March 2010
- Last Accessed March 2010
- Last Accessed March 2010-03-24
Herein referred to as ‘the act’
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
R v P & O European Ferries (Dover) Ltd (1991) Cr App R 72
S 144(1) & S 174(2)(d) CJA 2003
P & O Ferries spent £3.5 million defending the seven individuals prosecuted
R v Wacker [2003] 1 Cr App R 329 at 338
To date the only prosecution brought under the act is the case of Cotswold Geotech (Currently suspended). It is difficult to know exactly how the act will be judicially interpreted until it is seen in practice.
