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Requirement
Question 1
Explain the issues with the common law that led to the passing of the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) 2007.
Answer:
The Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 was passed with an aim to put a new offence where an organization as a whole can be convicted for a gross failure in managing its activities that resulted in a person’s death. This act is applicable to a wide spectrum of organizations including private and public sectors. In England and Wales and Northern Ireland, it is called Corporate Manslaughter, whereas, in Scotland, it is called Corporate Homicide. ("Corporate Manslaughter And Corporate Homicide Act 2007" (2009) 31 In Practice.)
As was the case with the companies, negligence towards the health and safety of their workers had tragic consequences that led to the loss of their lives. It was almost impossible to convict the responsible persons in this scenario, thereby; the need for new laws arose. In the case of such a situation, the prosecution was needed to prove two objectives – proving blame of a single individual of the company who was guilty of gross negligence in manslaughter and secondly, this particular individual is to be proved that he is the controlling mind of the company. Further, lack of evidence against the guilty meant that there would be no prosecution of the company. As a result of this, larger organizations could easily escape the convictions in cases of fatal accidents which often resulted in the failures of the people over a period of time. In larger companies this number was way greater than their counterparts [G. P. Fletcher, "The Theory Of Criminal Liability And International Criminal Law" (2012) 10 Journal of International Criminal Justice]. However, the chances of proving the guilt of those companies were equally difficult. So, after much delay, this law was reformed and passed in 2007 and came into force in April 2008.
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Besides, there were some corporate cases that were instrumental in materializing these laws:
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Lyme Bay tragedy: this was the case of OLL Limited Company in which four teenagers died. The owner Peter Kite was found guilty because he was looking after the activity centre where the incident occurred. But, another manager of the centre in Lyme Regis was found not guilty due to the lack of evidence with which a verdict could be reached.
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Herald of Free Enterprise: this case symbolises one of the most infamous corporate manslaughter cases that came in the late 80s. In this case, a ferry was capsized resulting in the loss of 193 lives when the bow doors of the ferry failed to close. However, the conviction could not be done as the act of negligence could not prove the individual who was the controlling mind.
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Clapham Rail Disaster: it was one of the worst rail disasters that claimed 35 lives. The incident took place when three trains fiercely collided on December 1988 because of the careless work by signal engineers. It was found that the case was of “vicarious liability”. After which the board only paid compensation, but no one was prosecuted for the manslaughter.
So, in all these incidents, due to the lack of effectiveness of the common laws, prosecution always found it difficult to establish the guilt of the accused. That was the reason as to why CMCHA (2007) was passed.
Question 2
Consider the major provisions of the CMCHA and say in your view whether you feel that the Act is an effective response to the concerns raised over the common law.
Answer:
It is important to understand the provisions of Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 first before understanding the offence itself. However, the offence does not necessarily require the companies to conform to the new regulatory standards. In any case, the juries are needed to analyse and consider as to how the wrongful activity was carried out throughout the organization. They need to understand the systems and processes to manage safety standards and their practice of operation as well. The failures within an organization substantially correspond to its senior level because the senior people are the ones who make significant decisions.
Major provisions of CMCHA
The Ministry of Justice has rolled out some of the important provisions coming under this act:
Prosecution: The offence committed in an organization if results in a person’s death or if it amounts to a gross breach of a relevant duty of care owed by the organization, then the organization is guilty of the offence. The elements of the offence are the organization, causation, relevant duty of care, the gross breach, senior management and the exemptions for prosecution. The act says that the corporate bodies shall be prosecuted, not the individuals. However, the directors, board members and other higher echelons will be liable under this law. Also, the organization and the individuals will still be prosecuted for separate health and safety offences. The act also largely eliminates the Crown immunity that used to apply to the previous common offense regarding corporate manslaughter. It also provides some exemptions that cover policy decisions. The offence basically concerns the ways in which the activities were organized and carried out as well as the adequacy of those arrangements. In this way, the corporate liability, in the case of culpable homicide, is established in the case of failures on the part of managers [Steve Tombs, "Almond, Paul: Corporate Manslaughter And Regulatory Reform" (2013) 61 Crime Law Soc Change.]
Section 1(3) says it is almost impossible to convict an organization unless the senior management level is responsible for the substantial part of the organization’s failure.
According to section 1(4)C, a company’s managing director is its directing mind, so if the company is to be held liable for the offence in terms of not complying with the health and safety measures and hence resulting in someone’s death, then that directing mind will be held liable as well. A relevant duty of care is to be followed by its senior management. The offence must be established by a direct link between the activities of the company and its senior management. Bridgit Dimond, "Liability For Death: Manslaughter, Murder And Other Criminal Offences" (2004) 13 British Journal of Nursing.
In trying to determine that a breach of duty has been done, the law stipulates that the jury should consider the extent to which attitudes, policies and practices are responsible for the gross negligence. The prosecution decisions are taken by the Crown Prosecution Service, Crown Office and Prosecutor as well as Director of Public Prosecutions.
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Jurisdiction: this new Act lays down certain specific rules for the jurisdiction concerning the offence. It determines whether a death in a specific place is going to come under the new offence. Any British company or corporation cannot be prosecuted for deaths happened outside the country, but only the harm occurs inside its territory. Also, in the case of occurrence of any offence before 6 April 2008, the act does not apply in this scenario. The case is then reverted to the common law. Catherine Elliott, "Liability For Manslaughter By Omission: Don't Let The Baby Drown!" (2010) 74 The Journal of Criminal Law.
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Exemptions: The offences are not applicable to those public and government functionaries who pertain to wider or serious public scrutiny and are already a subject matter of other kinds of accountabilities. The exemptions are further divided into two broad categories – comprehensive exemptions and partial exemptions.
The comprehensive exemptions are applicable to public policy decisions, for example, decisions regarding strategic funding and competing for public interests. However, wrong decisions been taken for managing resources are not exempted from the law. Secondly, military activities involving peacekeeping operations and the ones dealing with terrorism are exempted as well. Thirdly, Police operations that deal with the acts of terrorism and violent disorder are also exempted. These can also be extended to the support and preparatory activities. Markus D. Dubber, "The Comparative History And Theory Of Corporate Criminal Liability" (2013) 16 New Criminal Law Review: An International and Interdisciplinary Journal.
Partial exemptions include emergency responses such as fire and rescue operations, ambulance services (it does not exempt the duties and care related to medical treatment in the case of emergency) and child protection functions. Secondly, the government prerogative powers acting in the case of civil emergency are also exempted from the law.
Investigation procedures: the investigation process is started by police in the case of a criminal offence is suspected. They investigate in tandem with the health and safety executive or local authority or any other personnel equivalent to a regulatory authority. So, it is important for these law enforcing authorities that they are properly harnessed with all the necessary requirements for corporate manslaughter investigation and the existing protocols do facilitate this.
The Crown Prosecution Service (England and Wales) is responsible for the proceeding of offence, and an investigator’s guide lays down step by step procedures to investigate deaths in the workplace of an organization.
This act has been proven to be an effective response to the concerns raised because it was created for providing a means and way for fixing the accountability for very serious management shortcomings being carried in the organizations. The original intentions, however, were to address the problems with regards to the common law of identification and aggregation pertaining to the corporate bodies. Therefore, the law is now significantly wider in the scope rather than simply overcoming these problems and it is also intended to work in conjunction with certain accountabilities like gross negligence. L. H. Leigh, "The Criminal Liability Of Corporations And Other Groups: A Comparative View" (1982) 80 Michigan Law Review.
Question 3
Provide an explanation of the actus reus and any mens rea elements of the offence and of any issues you may feel are raised by causation.
Answer:
Actus reus is a Latin term which means bad act. The use of this phrase refers to more than just a bad act. It denotes whatever circumstances and consequences are being recognized to fix the liability for the offence done. The actus reus must be proved by the prosecution before anyone could be liable for the punishment. So, the accused is said to have committed actus reus if the act is prohibited by the law. In view of actus reus, generally, crimes are divided into two categories:
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1. Conduct crimes in which actus reus is the prohibited crime itself. As an example, the offence of dangerous driving is actus reus even though it is mechanically propelled the vehicle and no harm or unfavourable consequences need to be established in this case.
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2. The other types of crimes are called as result crimes in which actus reus of the offence committed needs to be proven to a certain extent because the very conduct caused a prohibited result or consequence. As an example, the criminal offence of damaging property belonging to any person needs to be proven that the damage was done. Vera Bergelson, "Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law" (2005) 8 Buffalo Criminal Law Review.
Elements of involuntary actus reus: the conduct of an accused person need to be voluntary or free-willed in order to incur liability. However, it may be involuntary because of different reasons. These are:
Automatism: it refers to a situation where a defendant commits a physical act but is unaware of what he did. That is, he is not in his control of his actions due to the external factors.
Reflex actions: sometimes because of spontaneous reactions or reflex actions, people respond which they have no control on.
Physical force: in this situation, the involuntary conduct is physically forced by someone else. In such a situation, there will be no actus reus whatsoever.
Mens rea, which literally means guilty mind, refers to the state of mind of the accused person that he had while performing the act of crime. In other words, it denotes the accused’s thinking or intention when the crime was committed. On account of mens rea, the criminal justice system differentiates between the one who did not have the intention of committing crime and one who came out to intentionally commit the crime.
Intentional behaviour that is harmful is often termed as criminal, while unintentional harmful behaviour is of two types:
Mistake in fact: it means even if someone’s behaviour is termed fit for a crime in an objective sense, but it, in fact, can’t be considered as a crime because he was unaware of the seriousness of his action.
Mistake of law: it suggests that even if somebody had no intention of committing a crime, the ignorance of law could not be an excuse to escape from the criminal liability.
So, in light of the occurrence of certain crimes and their consequences, the prosecution is strictly required to prove that it was the accused’s conduct that led those consequences to happen. That is, according to the law of causation, to prove the veracity of the crime, mens rea was behind actus reus.
Question 4
Consider any issues with the jurisdictional reach of the legislation that you feel may affect the working of the CMCHA.
Answer:
There are certain factors with which the jury can affect the working of CMCHA because even if it is established that relevant duty of care has been breached, it falls on the part of the jury to decide whether the evidence is enough to prosecute. So, it has to consider as to how serious the failure was or how much risk of death does it pose.
However, any court before which any particular organization is convicted of corporate homicide or corporate manslaughter can also make remedial orders. In that case, the jury has to consider the extent to which the evidence shows that the attitudes, policies or practices are likely to encourage any such failures. The jury also pays regard to any health and safety guidance relating to the alleged breached.
The jury also cannot be prevented from having regards to any other matters that they consider relevant or irrelevant. The jurisdiction also takes the cognizance by looking into the merit of the offence and passes the remedial order only on the basis of application by the prosecution of the proposed order. It is up to the courts whether to consider it appropriate regarding representations being made in relation to the matter. Alon Harel, "Victims And Perpetrators: The Case Against A Unified Theory Of Comparative Liability" (2005) 8 Buffalo Criminal Law Review.
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Explain the mode of trial required for the offence and the penalties available to the court.
Answer:
Under CMCHA, the crimes or the failings of the senior management of an organization attracts a range of possible sanctions to convict them. The investigation is done by the police regarding any crime being done. The proceedings, on the other hand, for the offence are the responsibility of general prosecuting authorities, which are The Crown Prosecution Service, England and Wales and Public Prosecution Service. The case will be pursued by the courts if the death happens in the UK, UK territorial waters, UK aircraft or any other installation covered by UK criminal law. Secondly, the ways with which an organization’s activities lead to any person’s death or amounting to gross breach of relevant duty of care. Finally, the case is also pursued if the wrongful activities are organized by its senior management because of substantial element of breach.
In CMCHA, there are three types of penalties available with the courts: fines, publicity orders and remedial orders. Stephen Griffin and Jon Moran, "Accountability For Deaths Attributable To The Gross Negligent Act Or Omission Of A Police Force: The Impact Of The Corporate Manslaughter And Corporate Homicide Act 2007" (2010) 74 The Journal of Criminal Law.
References
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"Corporate Manslaughter And Corporate Homicide Act 2007" (2009) 31 In Practice
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Bergelson V, "Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law" (2005) 8 Buffalo Criminal Law Review
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Dimond B, "Liability For Death: Manslaughter, Murder And Other Criminal Offences" (2004) 13 British Journal of Nursing
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Dubber M, "The Comparative History And Theory Of Corporate Criminal Liability" (2013) 16 New Criminal Law Review: An International and Interdisciplinary Journal
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Elliott C, "Liability For Manslaughter By Omission: Don't Let The Baby Drown!" (2010) 74 The Journal of Criminal Law
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Fletcher G, "The Theory Of Criminal Liability And International Criminal Law" (2012) 10 Journal of International Criminal Justice
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Griffin S and Moran J, "Accountability For Deaths Attributable To The Gross Negligent Act Or Omission Of A Police Force: The Impact Of The Corporate Manslaughter And Corporate Homicide Act 2007" (2010) 74 The Journal of Criminal Law
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Harel A, "Victims And Perpetrators: The Case Against A Unified Theory Of Comparative Liability" (2005) 8 Buffalo Criminal Law Review
-
Leigh L, "The Criminal Liability Of Corporations And Other Groups: A Comparative View" (1982) 80 Michigan Law Review
-
Tombs S, "Almond, Paul: Corporate Manslaughter And Regulatory Reform" (2013) 61 Crime Law Soc Change
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