Published in The Lawyer
, 12 June 2000
The government has at last revealed its proposals
for overhauling the intricate law of manslaughter. The result would
be a sub-division of different offences of killing involuntarily,
with a special formulation for ‘Corporate Killing’. The
proposal is based substantially on the Law Commission’s
earlier recommendations for this offence.
This is encouraging news for the baffled law
student, the busy practitioner and the judge faced with a difficult
summing up. But as we know, what is good for lawyers is not always
for the greater good.
The intention is that all
‘undertakings’ - not just corporations but charities,
hospital trusts, partnerships, small businesses, local authorities
- could be convicted more easily, with a reduced evidential burden
on the prosecution.
The offence would be committed where a
management failure is the, or one, cause of a
person’s death, and that failure constitutes conduct
falling far below what can reasonably be expected. A failure
would be treated as causal for these purposes even though the
immediate cause of death was the act or omission of an
It is easy to see why the TUC and victims action
groups have lobbied for this approach. It side-steps the need to
show negligence to a recognisable criminal standard by any natural
person really responsible – the controlling mind or minds of
a company (the doctrine of ‘identification’ which has
been blamed for high profile prosecutions that have collapsed). It
would not be necessary to show that the risk was obvious, or that
the defendant was capable of appreciating the risk at the time.
Companies and other organisations (unlike
individuals) will not be tried by a jury of their peers who share
their common experience, and could be convicted purely on the basis
of hindsight. Since any management should aim to avoid killing its
staff or customers juries will not need much persuading that an
accident, especially one involving multiple fatalities, could have
been avoided by some means or other.
Deterrence was cited by the Law Commission as a key
reason for its recommendation of the offence. One campaigner has
asserted that corporate criminals are uniquely deterable because
they calculate risks rationally and stand to lose valued
possessions and status.
How deterrence works at the level of inadvertence
and unconscious risk taking is not explained, either for
individuals or more importantly hierarchies of individuals with
collective responsibilities. No evidence for the
‘marginal’ deterrent effect of the new offence over and
above that for the existing threat of manslaughter or other
prosecution has ever been given by its supporters.
It is claimed that this will restore public
confidence that companies can be held properly accountable. The
Home Secretary believes that “all too often organisations
have been able to escape liability for errors where if an
individual had been responsible they [sic] would have been
convicted”. In fact, we already have tough offences for any
undertakings which fail to ensure the safety of their staff or the
public, where the onus is on the defendant to prove that it took
all reasonably practicable precautions. We already have offences of
failing adequately to assess any risks, not implementing
appropriate precautions, and failing to monitor and review their
These offences are set out, in terms, in the Health
and Safety at Work Act 1974. If companies are really unaccountable
and escaping liability some serious questions need to asked of the
government itself about the value of its own Health and Safety
Executive charged with enforcing these laws and how it uses its
£180 million annual budget.
The danger is that in effectively relegating the
mainstream enforcement of health and safety laws to an inferior
status the government is reinforcing the myth that statutory
offences are not really criminal: this is true only in that it is
so widely believed. Over thirty years ago Lord Reid in Sweet
-v- Parsley famously draw a sharp distinction between
“truly criminal acts” and acts not in the public
interest which are prohibited under a penalty. As Professor Sir J C
Smith has observed, this is a fallacy and a conviction for a
statutory offence can hardly be equated with a fine for failure to
return a library book.
Only recently has the Court of Appeal led the way
in disposing of this conventional wisdom by issuing guidelines for
meaningfully high levels of penalties for corporate offenders.
Six-figure fines are becoming regular events in prosecutions of
large organisations and the appearance of a major train operator at
the Old Bailey and the imposition of a fine of £1.5 million cannot
be characterised as lack of accountability.
The justifications for the Corporate Killing
offence are weak and the government is dabbling in this area
without a coherent policy. Its current plans have more to do with
politics than serious law reform or promoting health and
Mark Tyler is a partner at CMS Cameron McKenna.