Corporate manslaughter

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.

Criticism of the concept

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.^[3]

... 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.^[4]

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

— Fischel & Sykes (1996), p.325

However, these views have themselves been criticised. Clarkson identifies four valuable characteristics of criminal prosecution:^[2]

• Stronger procedural protection of corporations, such as proof beyond reasonable doubt;
• More powerful enforcement agencies, such as the Health and Safety Executive in the UK;
• The stigma and censure that follow from conviction; and
• The symbolic role of criminal law that "sends a message" to society.

A further strand of criticism holds that only individuals can commit crimes.^[5] 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][6][7] 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]

Theory

Clarkson identifies six theories of corporate manslaughter:^[2]

• Identification doctrine;
• Aggregation doctrine;
• Reactive corporate fault;
• Vicarious liability;
• Management failure model; and
• Corporate mens rea.

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 the 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.^[8] 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^[9] and introduced in Australia in 1995.^[10]

By jurisdiction

• England and Wales

References

1. ^ Jackson, Michael (2003), Criminal law in Hong Kong, p.400, Hong Kong University Press.
2. ^ ^{a b c d e f g h i j k l} Clarkson (1998)
3. ^ Khanna (1996)
4. ^ Fischel & Sykes (1996)
5. ^ Meridian Global Funds Management Asia Ltd v. Securities Commission [1995] 2 AC 500, at 507 per Lord Hoffmann
6. ^ R v. Kite and Others, The Independent, 9 December 1994
7. ^ "Convictions of directors - manslaughter". Centre for Corporate Accountability. 2005. http://www.corporateaccountability.org/directors/convictions/manslaughter/main.htm. Retrieved 2007-10-22. 
8. ^ Fisse (1983), Fisse & Braithwaite (1988, 1994)
9. ^ Ragozino (1995)
10. ^ Rose (1995)

Bibliography

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• Rose, A. (1995). "The 1995 Australian Criminal Code Act: corporate criminal provisions". Criminal Law Forum 6: 129. doi:10.1007/BF01095724. 
• Sullivan, G. R. (1996). "The attribution of culpability to limited companies". Cambridge Law Journal 55 (03): 515. doi:10.1017/S0008197300100492. 
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