Corporate Manslaughter Law: UK Reform and Criminal Liability

Introduction and Definition of Corporate Manslaughter

This study examines the subject of corporate manslaughter. For the purposes of moving the discussion forward with a clear and agreed-upon meaning, the term is defined at the outset. "Corporate manslaughter" is the non-legal term that meets the definition and degree of negligence legally defined as manslaughter or involuntary manslaughter — that which results in death, but which, given the foresight available through industry-specific knowledge and planning, could have otherwise been avoided. There must be some industry-specific understanding through which a given action could be recognized as likely to result in serious injury or death if the proper precautions of prevention are neglected or ignored. These precautions of prevention are often costly to the employer, and thus the cost of prevention is frequently deemed greater than the perceived risk. The risk becomes acceptable or negligible to the employer, who then neglects taking measures to mitigate the danger to employees or consumers. Given that approximately 500 deaths per year are attributed to such negligence at the employer or corporate level, specific legislative processes must be developed to deal with what is called corporate manslaughter.

In an article contrasting G8 debt-forgiveness altruism with the inadequately legislated redress of "state" manslaughter, Simon Mackenzie lists the legal mechanisms under English and Welsh law for finding complicity in an "omission to act." The criteria of domestic law that are currently applied against allegations of corporate manslaughter are as follows:

First, an oblique intent to commit murder using the "virtual certainty" test in relation to a criminal omission — in other words, where one's main aim is something other than to kill, but in achieving that aim the causing of death or serious bodily harm is a virtual certainty, and is appreciated as such (see Woolin [1998] 3 WLR 382). Second, gross negligence manslaughter, in which the mens rea requirements of that offence might be constituted by the unreasonable exposure of the victim to an obvious and serious risk to their health and welfare and a "couldn't care less" attitude toward a dangerous situation the accused has created (see Allen, 2005: 305–306). Third, reckless killing or killing by gross carelessness under the Law Commission's proposals (Law Commission of England and Wales, 1996; Home Office, 2000).

The focus of this paper is to determine: (1) whether there is a need for distinct and separate legislation addressing criminal negligence as presented in the three aforementioned criteria, specifically applied to employers or other entities profiting from the manufacture, creation, or distribution of goods or services who in that role cause severe bodily harm and/or death to employees or consumers; and (2) whether existing law sufficiently defines and extends its application to businesses and corporations that, in the process of producing or distributing goods and services, negligently contribute to the severe bodily injury and/or death of an individual.

Prior to commencing the study, consideration was given to defined and undefined terms as used within the context of this document. The term "corporate manslaughter" lacks a legally codified meaning, as it is not currently associated with a specific statute. Accordingly, its meaning here is drawn from the Corporate Manslaughter Bill as presented to Parliament, and the use of the term throughout this paper reflects that meaning.

The introduction of a Corporate Manslaughter Bill represents a third definitional tier attached to the notion of manslaughter. Manslaughter, standing alone, is one level of offence; involuntary manslaughter is the second. Standing alone, the legal definition of manslaughter is described in the Criminal Justice Bill as a criminal offence despite involving an involuntary killing, because death could have been avoided had the offender exercised due caution in the act or omission that led to the death. As described by the Crown Prosecution Service, manslaughter is a criminal act where the death was avoidable and the offender is proven to have neglected precautions to prevent it — negligence that is less culpable than murder, but still criminal.

Involuntary manslaughter is distinguishable in penalty and usually denotes reckless behaviour that the offender may not have contemplated in advance as being likely to result in death.

The term "corporate manslaughter" has evolved to take on an unassigned legal definition and has been used in connection with efforts to bring about legislative action. Should a bill be drafted and enacted, the term will take on a much more complex definition in legalese.

In his paper "Corporate Liability Standards: When Should Corporations Be Held Criminally Liable?", V.S. Khanna discusses the term in both its simple and its potential legal forms. Khanna notes that at the legal level, the term will begin with its general meaning and gradually acquire layers of legalese. It is a relatively new term, and can be envisioned as moving along a legal assembly line where its various parts are built in. There will need to be, Khanna writes, the meaning of vicarious liability built into the term — falling under the doctrine of respondeat superior — which holds that only agents and employees of the corporation can be held liable for wrongdoing, and that the employee's intent must be aimed at benefiting the corporation.

While some circles view corporate manslaughter as arising only out of accidental incidents, this is not universally agreed upon in legal circles. There are criminal acts of negligence that are, under the definition used here, intentional by way of deliberate neglect or avoidance. The term will need to address this and penalize intentional negligence differently from unintentional acts of corporate manslaughter. By the time the term arrives at the point of legal application, it will have acquired an enlarged meaning with complex parts. The benefit of creating the term now is that lawmakers, prosecutors, and defence lawyers will all be aware of its development as it moves through the judicial process and is delivered in its full meaning, ready to be tested at trial.

Despite its importance to many people, the corporate manslaughter bill has received more talk than action. In 2005, Prime Minister Tony Blair promised to make the bill a priority and see it reach the statute books by 2007. The Bill provides some of the components needed to make the overall concept of corporate manslaughter work — for example, defining certain corporate figures such as the Chairman, Managing Director, Chief Executive, and Secretary of the Company. It also makes possible the prosecution of an officer of the corporation who might be found guilty of corporate killing if the corporation as an entity is found liable.

The theory is that by imposing penalties and jail terms on corporations and their senior leadership, corporations will become more focused on keeping their employees and the civilian population safe. It relies on the presumption that corporations will develop a social conscience that overrides the drive to maximise profit margins.

The Home Office presented the draft Bill on Corporate Manslaughter as follows:

Corporate Manslaughter and Corporate Homicide: A Regulatory Impact Assessment of the Government's Bill

This assessment considers the impact of proposals set out in the Government's Corporate Manslaughter and Corporate Homicide Bill. The proposals are intended to offer a more effective means of holding organisations to account for gross management failings causing death than is currently provided under the law of manslaughter in England and Wales and Northern Ireland, and culpable homicide in Scotland. In practice, it can prove very difficult to prosecute large corporations for gross negligence manslaughter because the law requires proof that a "directing mind" — an individual at the very top of the organisation who can be said to embody its decisions or actions — is guilty of the offence. In broad terms, the proposals would create a variant of this offence specific to organisations. Criminal liability would be attributed where the way the organisation's activities were managed or organised by its senior managers was grossly in breach of a duty of care owed to a person, causing their death.

The primary purpose of reform is therefore to offer a more effective sanction against organisations for whom the current law has little effective application. The new offence does not increase or decrease individual responsibility, but instead provides a different basis for the criminal liability of organisations, where the focus is no longer on the guilt of a particular individual.

Critical Analysis and Corporate Social Ethics

A consequence of reform should also be a contribution to reducing the rate of work-related deaths and injuries. The proposals do not require any new standards to be met, but a more effective corporate manslaughter offence would provide an incentive for organisations with serious management failings in health and safety to review their arrangements and organise themselves in a way that minimises the risk of causing death. While existing health and safety legislation already provides for an unlimited fine on conviction for certain offences, the prospect of a manslaughter conviction under more effective legislation will provide an additional incentive to comply with appropriate standards.

The Corporate Manslaughter and Corporate Homicide Bill introduces a new offence of corporate manslaughter for England, Wales, and Northern Ireland, and a new offence of corporate homicide for Scotland. For the remainder of this assessment, the term "corporate manslaughter" should be read to include corporate homicide.

The hypothesis posited here is that the existing definition and application of the laws of negligence, manslaughter, and involuntary manslaughter are deficient in definition, application, and penalty when applied to incidents of corporate manslaughter.

The research questions are: (Q1) In what ways does corporate manslaughter differ from general manslaughter or involuntary manslaughter? (Q2) How do current domestic laws prove deficient in the face of corporate manslaughter findings? (Q3) How do current domestic law penalties stemming from negligence prove deficient in such findings? (Q4) How do the Law Commission's 1996 proposals prove deficient in the face of corporate manslaughter findings?

The objectives of this research are to analyze and present a clear and concise account of current domestic laws applicable to negligence cases that fall under manslaughter or involuntary manslaughter statutes; to examine and compare the applicable penalties in findings of manslaughter or involuntary manslaughter where the perpetrator is a corporate entity; to examine the creation of corporate manslaughter laws within a legal framework; to consider the existing laws and regulations applicable in corporate settings but not domestic ones; and to consider the benefits to society of enacting separate and distinct corporate manslaughter laws.

The method employed is one of examining and discussing existing data and information on corporate manslaughter, drawing on a diverse range of sources and using specific case studies. The limitations of the study fall within the qualitative and quantitative categories, as no independent gathering or calculation of statistical data was performed by this researcher; reliance is placed on the professional expertise of prior researchers.

Discussions on corporate manslaughter in the UK inevitably involve allegations that powerful and influential corporations cause lawmakers to render decisions favorable to them in cases arising from negligence. Whether or not this is the case can only be determined by examining individual case studies and comparing them to applicable law and rules of evidence. Incidents of industrial accidents that result in death or severe injury take their toll economically, socially, and emotionally on the families of victims and survivors. While the well-being of families is an important consideration, it is best set aside in discussions of law and law reform — except insofar as the loss of financial support provided by the victim can be quantified. Part of the problem in creating specific law to deal with corporate negligence is that discussions often turn from the legal to the emotional, and the emotional side provides no basis for formulating law or rules of evidence. However, public emotion does serve to draw much needed attention to the issue.

Another issue arising from questions of corporate manslaughter and liability is the question of process where the corporation is genuinely unaware of the danger that precipitated an incident. In those cases, to what extent, if any, is the corporation to be held accountable for the loss of life and the family's resulting loss of support?

Local law enforcement has demonstrated an inability to respond adequately to incidents of corporate manslaughter. It is unclear whether this lack of response arises from the ambiguity they face in applying current laws to corporate manslaughter, or whether powerful corporate influence has impeded investigations and prosecutions.

On 17 May 2005, before the Lords and Members of the House of Commons, Queen Elizabeth II fell short of any clear commitment to supporting a corporate manslaughter bill: "My Government will take forward proposals to introduce an offence of corporate manslaughter." The language contrasts with her government's more definitive commitment to other projects, where language such as "Legislation will be introduced" is typically used. The successful creation and implementation of law specifically addressing corporate manslaughter cannot emerge without the high-profile support of political figures whose backing would send a strong message to corporations and lawmakers — that the time has come to hold accountable those entities that show a complete lack of regard for the welfare and safety of their employees and the public.

The October 2000 Hatfield train crash was a high-profile and widely publicised case, closely followed by the media. It is significant because eight managers of Railtrack and its maintenance contractor, Balfour Beatty, faced manslaughter charges. The crash resulted in the deaths of four people and numerous injuries to others. However, it was the fact that the companies involved had been brought to trial under corporate manslaughter allegations that captured public attention as much as the disaster itself. Many people remained convinced that the charges did not reach the level within the company where responsibility for negligence should have rested.

For the most part, the public expected some measure of justice. There was admitted neglect of health and safety rules and charges had been made by prosecutors. Then, after a trial lasting 12 months and five years of legal process, the "Hatfield Eight" charges were dropped. At the time the manslaughter charges were thrown out, the group faced lesser charges. The decision was met with heavy public outcry; union leaders, victims, survivors, and their legal counsel were surprised and angry. "In September the same judge directed that a charge of manslaughter against Charles Pollard, 45, and director of the London North-Eastern Zone of Railtrack, should be dropped. He also said that there would be no trial of former chief executive Gerald Corbett — who had been formally charged with breaches of health and safety legislation."

Research Methodology

The decision and sentencing infuriated the public, and cries for new corporate manslaughter laws were loud and clear. The response in political circles was rhetoric, and nothing has yet manifested into a separate and specific corporate manslaughter law on the statutes — although Prime Minister Tony Blair promised that would come about by 2007. This case, and others like it, brought into focus the question of corporate ethics and corporate social responsibility. The time had arrived for England to be proactive in supporting corporate manslaughter legislation.

The study and analysis has largely — and appropriately — reflected the legal advocacy surrounding corporate manslaughter. Here, the corporate social ethics that arise out of a public corporation's responsibility to its workforce and to the consumers of its goods and services are brought into focus.

There are currently laws that govern a corporation's financial integrity and responsibilities. These laws are fiercely regulated by financial regulatory entities, and violations carry high financial penalties and even jail sentences. There are environmental laws governing pollution to which corporations are seemingly more attentive than they are to their social responsibility for the health and safety of employees and consumers.

Expecting a company to demonstrate genuine concern for its employees and the health and safety of consumers is tantamount to regulating corporate virtue. As Braithwaite (1993) argues, it is not always clear what "virtue" means in a corporate context, or how it might be identified. That said, most people would agree that corporate chairmen and executives are capable of acts of corporate charity and altruism — in which case they should have no difficulty grasping what corporate virtue means when considering their responsibility to the public and to their employees. Unfortunately, when it comes to profit-and-loss statements, which corporate executives defend and manoeuvre each quarter to show profitability, corporate virtue probably takes on a dollar value, and responsibility to employees and consumers becomes obscured by dividends and stock prices.

Any adjustments to existing statutes that would enlarge the laws to cover corporate manslaughter as a unique and specific act of criminality would have to inform and advise executives of the meaning of corporate virtue. The government has failed in its role to pursue adequate health and safety inspection processes to ensure that employees and consumers are kept safe. Accordingly, the government will need to undertake the education and training of corporate executives as to the nature of their responsibilities to society and provide guidelines within which they must operate.

Braithwaite argues that all organisations have the capacity within them for both virtue and non-virtue. His notion of virtue and non-virtue is a behavioural concept, and the test of whether or not a corporation acts virtuously is its behaviour. Braithwaite suggests that the corporate culture is one aspect to consider in arriving at a determination of virtue or its lack. Overt behaviour in a climate of corporate ignorance or disavowal of the rules and regulations governing health and safety would be a good measuring stick for virtue versus non-virtue.

Another consideration in measuring a corporation's social conscience is its response to an industrial accident or disaster. "A virtuous response would be the one where the repetition was the least likely." Understanding how organisations deal with ethical dilemmas in light of their social and economic demands is central to this assessment.

The purpose of a research study is first to identify a problem or concern within a given subject or topic; to explore that topic with an eye towards the concern; and to describe the subject in the context of the concern so that it can be explained with the objective of informing those whose interests are best served by the findings. This research paper proceeds and concludes within the parameters of those three functions.

The exploratory function of this research paper is to explore the cause and effect of corporate manslaughter in a way that lends itself to the introduction of specific legislation. The exploratory approach takes the wealth of information on the subject, explores the levels and paths of that information, and gathers a body of evidence in support of the thesis.

Prevalence of Corporate Manslaughter and Criminal Liability

The explanatory process brings together the concepts, notions, and facts revealed through the exploratory process and places them into a concise, ordered, and logical flow of thought in support of the thesis. This involved an examination of legal, social, economic, and public documents and sources addressing the pros and cons of imposing specific corporate manslaughter law, and brought that discussion into focus in a way that supports the paper's thesis. Exploration and description are often inseparable in this paper, as the research discussion courses through the wealth of information introduced in support of the thesis.

The research approach is the practitioner-based enquiry approach (PBE), as described by Lawrence and Murray. This approach encompasses an intellectual character and is appropriate for the humanities and the behavioural sciences.

The qualitative and quantitative elements of this research are based upon the body of information that exists in professional journals on the subject and in the legal documents of bills, legislation, and case studies that come out of the justice system. No independent surveys or original data collection requiring a quantitative or qualitative analysis process have been employed. The wealth of existing information on the topic would make that process redundant and unnecessary.

The inductive stance is employed over the deductive stance, since the study relies on case-study information and the interpretations of other researchers — which is demonstrative of a bottom-up process of procedure.

The strategy employed is the aforementioned PBE, reflecting a case-study approach to an existing body of information, but employing the three elements of research that bring about independent reasoning, decision-making, and conclusions. The PBE approach scales down from the topic to those sources bearing a measurable relationship to the research subject, using the "trinity utility test": if the purpose as stated points in the direction of a practically useful enquiry, then the purpose is likely to be sound. Using keywords as a guide, the relevance of material lends itself to an understanding of whether the source is integral to the hypothesis, the research questions, or the problem itself.

The research findings are a direct result of data collection and analysis. The findings of this research study are independent and do not arise out of external incentives that would influence the independent decision-making as to the relevance of data, its interpretation, or the formulation of independent conclusions and recommendations. The evidence in support of the thesis — case-study fact and outcome as collected and documented through legal investigatory processes — has been verified and will withstand scrutiny.

The incidence of industrial accidents — such as chemical spills, industrial cargo ships sinking or leaking oil into the environment, and collapsing bridges or structures — are all frequently featured in news coverage. In 1997, 67 people were blinded, 1,006 had limbs or bones amputated, and 303 people were poisoned through work-related accidents or incidents. While these numbers reflect reports made to police for purposes of criminal investigation, and the circumstances were considered "suspicious," indicating possible employer complicity, the majority of cases did not lead to any formal charge or hearing to determine criminal intent or liability.

Between 1988 and 1998, 3,555 workers were crushed, asphyxiated, or burnt to death. During that same period, only two company directors were prosecuted to conviction on a charge of manslaughter. In 1994, the West Midlands Health and Safety Centre reinvestigated 28 deaths that had taken place between 1988 and 1992 in that area. On the basis of this evidence, Anthony Scrivener QC stated that four of those deaths should have resulted in a manslaughter prosecution against a director. If this were reflected nationwide, one year's death toll alone (261 deaths) should have resulted in 35 corporate manslaughter prosecutions. These are incidences of sudden death at the work site and do not include statistics for employment-related deaths of a non-sudden nature.

These numbers are supported by Professor Gary Slapper, who found that one-fifth of the 40 deaths he examined in detail should have been referred to the Crown Prosecution Service for further consideration of corporate manslaughter — a finding focused only on sudden deaths.

Between 1988 and 1999, 15,283 workers died from asbestos-related illnesses; 4,178 were diagnosed with occupational diseases; and 212,387 underwent amputations, blindings, or similarly serious injuries. None of the numbers referenced here resulted in prosecution for corporate manslaughter or criminal negligence arising out of grievous bodily harm or injury.

The agency charged with investigating these accidents, the Health and Safety Executive (HSE), regards the lack of prosecution as indicative that the deaths and injuries did not arise from workplace environments or accidents. However, the HSE investigated fewer than 10% of these cases and does not investigate reported deaths from industry-related diseases such as asbestos exposure. The HSE itself is reported to have indicated that 70 to 85% of the 3,555 deaths reported between 1988 and 1999 were preventable. Legal experts including Professor Slapper have reported that HSE statistics and data appear incomplete and inconsistent, especially regarding work-related fatalities.

Criminal law as it currently exists in English law is statutory — in the UK it is codified, and Parliament continually adds new crimes. The Law Commission published draft codes in 1989 and 1992 covering the major portion of English criminal law, and in 1993 a comprehensive Bill to codify all laws relating to non-fatal offences against the person. The ensuing discussion on corporate manslaughter — which involves introducing a Bill that must be passed and elevated to statutory status — can be better understood in terms of this process: the corporate manslaughter law is creating a new legal statute, adding not simply a crime but a distinct statute to the existing ones.

Corporate criminal liability is, especially in light of the corporate manslaughter debate, a hotly contested topic. Discussions involve terms like "culpable" and "fault," whose legal definitions — though seemingly similar to the lay person — carry great significance, as they define the liability standard to be imposed. "For example, should liability be imposed when the corporation is negligent, when it acts knowingly, whenever harm occurs regardless of the fault or knowledge of the corporation, or some other liability standard?"

Conclusion and Recommendations for Future Research

This research study has revealed the need for specific corporate manslaughter laws. As the study shows, the successful prosecution of corporate manslaughter cases has been minimal, and the reason for this has been linked directly to the structural irrelevance of current manslaughter and involuntary manslaughter laws when applied to cases of corporate manslaughter. As shown by the courts' decisions in these cases, the current law does not successfully pertain to the prosecutorial points that corporate manslaughter cases require.