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					The Law of Manslaughter




      Louise Christian
Christian Fisher and Partners
    CCA Board Member
                Manslaughter by a Company

• Criminal liability of company based on criminal liability of at least one
  individual

•   Individual must be a controlling mind

• If that individual guilty company is guilty under identification doctrine

    (Attorney General’s Reference No 2 of 1999, Times 29/2/2000 –
    Southall Rail Crash case)

• Company compared to human body by Lord Denning

     (Bolton (Engineering) company limited v TG Graham and Sons limited
       (1957) 1QB 159)
                        TEST FOR MANSLAUGHTER

•   R v Adamako (1995) 1 AC 171

•   Need to show
     – Duty of care
     – Breach of duty of care
     – Gross negligence in breach of duty – failure to heed serious and obvious
       risk


•   The test is objective i.e. what would a reasonable person think is gross
    negligence

    (see Southall Rail Crash case cited above )

•   the gross negligence must be a substantial cause of the death but
    need not be the only cause
        IS CORPORATE MANSLAUGHTER UNDER CURRENT LAW
                 TOO DIFFICULT TO PROSECUTE?

•   Only about six prosecutions brought

•   Only three successful

•   No successful prosecution over any disaster

•   Evidence of DPP to House of Commons Select Committee on 8th may
    2000

•   Difficulties

     – Cannot aggregate acts or omissions of more than one individual
     – have to trace chain of responsibility up to the top
     – No statutory duties on company directors in relation to safety
     HAVE PROSECUTORS BEEN GETTING IT WRONG

•   R v DPP ex parte Jones

    – Immediate cause may be a foreseeable error rather than act or
      omission of controlling mind

    - Controlling mind does not have to be present at time of death

    - Controlling mind does not have to personally understand risk as
      long as a reasonable person would have done so

    - Controlling mind does not have to be involved in day to day
      decision making

    - But Compare assumption of personal responsibility/proximity test

       (Southall Rail Crash Case above)
                      HOME OFFICE PROPOSED REFORMS

•         Home office proposals – home office consultative document in may 2000

•         four years since law commission report and no action since may 2000

•         New offence of corporate killing against company/organisation only

•         New offence to be investigated by the HSE (or other regulatory body),
          marginalising the police in whole or in part.

•         New Offence to be prosecuted by the HSE, not the Crown Prosecution
    Service

•          Company directors to be liable to disqualification if their conduct has
    contributed    to offence

•         Crown bodies to be exempt

•         No jurisdiction for offences committed abroad
                              CCA RESPONSE

•        Welcome new offence but concern that may result in immunity for
                Directors or senior managers

•         Should be investigated by a joint team of the police and HSE (or
    other         regulatory body)

                  - proper training of police and safety inspectors required

•        Prosecuted by the CPS (with assistance from HSE)

•         Need to impose statutory duty on company directors in relation to
    safety         - code of guidance not good enough)

•        Need new statutory offences to make clear where managers are
                individually liable

                                                                    Cont….
                               CCA RESPONSE (cont)


•    Range of penalties such as corporate probation and director
    disqualification welcomed but directors must still face prison sentences
    in extremely serious cases

•   Crown bodies should be able to be prosecuted subject to safeguards
     -   includes prisons
     -   consent of attorney general?


•    British companies committing offences abroad should be within
    jurisdiction

•   Would like to see more priority to legislation in this area

				
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