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A Better way of Convicting Businesses of Avoidable Deaths and Injuries?

Published online by Cambridge University Press:  06 August 2002

P.R. Glazebrook
P.R. Glazebrook*
Affiliation:
Fellow of Jesus College, Cambridge
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Abstract

The Law Commission’s proposal for an offence of “corporate killing” (modelled on the common law crimeof gross negligence manslaughter) is criticised for vagueness and imprecison, for not comprehending serious non-fatal injuries, and for failing to recognise that in the absence of clear rules of attribution, any criminal liability imposed on an organisation can only be for failing to prevent something happening. It is suggested that offences (patterned on those of causing death by dangerous, or by careless and drunken driving) of causing death or serious injury by breaking (statutory) regulations would be a much better way of holding businesses and similar bodies as well as individuals liable for death and serious injuries that would not have occurred if those regulations had been obeyed.

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Articles
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The Cambridge Law Journal , Volume 61 , Issue 2 , 24 June 2002 , pp. 405 - 422
Copyright
Copyright © Cambridge Law Journal and Contributors 2002

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References

1 Law Com. 237 (1996).

2 In the year 2000-2001 there were, the Health and Safety Commission estimates, 295 fatalities, an increase of 75 on the previous year. There was, however, a fall of 5.4 per cent. in the number (almost 45,000) of reported major injuries: [2001] N.L.J. 1631.

3 F. Howe & Sons Ltd. [1999] 2 All E.R. 249. So, e.g., Great Western trains was fined £1.5m in 1999 for its breaches of the Health and Safety at Work Act 1974, that were revealed by the Southall train crash. London Underground was fined £250,000 in May 1999 after a passenger died when she became trapped in the doors of a train, and £225,000 in January 2002, after a maintenance employee suffered severe electric shocks while working on the track: The Guardian, 11 January 2002.

4 The classic exposition is by Glanville Williams: ‘Mens Rea and Vicarious Responsibility” [1956] C.L.P. 57. Things might have been rather different (and somewhat better) if English courts had followed, as the High Court of Australia did (Australian Films Ltd. (1921) 29 C.L.R. 95) and not rejected as anomalous, the lead given by Atkin J. in LNWR v. Moussell Bros Ltd. [1917] 2 K.B. 837, 846, that if an act of one of its agents can be attributed to a company, so can his state of mind.

5 Cf. Gateway Foodmarkets Ltd. [1997] 3 All E.R. 75 (CA). This is not, of course, to say that everyone within the organisation will be liable when no one does what the law requires, for it may not have been everyone's job to do it (see, e.g., Seaboard Offshore Ltd. v. Secretary of State for Transport [1994] 2 All E.R. 99 (especially Lord Keith at 104), construing Merchant Shipping Act 1988, s. 31(1) and (4) (not everyone who works on a ship is engaged in “operating” it) and Nelson Group Services (Maintenance) Ltd. [1998] 4 All E.R. 331, construing Health and Safety at Work Act 1974, s. 3(1) (not everyone who does work for an employer is engaged in “conducting an undertaking”), but only that there is no practical or logical obstacle in the way of holding the organisation, however defined, liable when no one has done it.

6 The famous, and cavalier, assertion of Lord Denman C.J. in R. v. Great North of England Rly Co. (1846) 9 Q.B. 315, 325-326, that a corporation could as readily be convicted of a crime of misfeasance as of one of non-feasance might be a little more persuasive if it had been supported by any argument, and had not been made in a case in which, putting aside all the rigmarole of the indictment, the charge against the company was that it had failed to erect a bridge (to carry a highway across the railway that had severed it) that complied with the statutory requirements.

7 A fuller exposition of this point may be found in Glazebrook, “Situational Liability” in Glazebrook, P.R., (ed.) Reshaping the Criminal Law (London 1978), 108Google Scholar.

8 Now, Water Resources Act 1991, s. 85.

9 Alphacell Ltd. v. Woodward [1972] A.C. 824; Empress Car Co. (Abertillery) Ltd. v. N.R.A. [1999] 2 A.C. 22.

10 The exceptional cases are those where the duty to act is a personal one, which cannot be discharged by a volunteer—e.g., in certain jurisdictions, to cast a vote in a parliamentary election. But these exceptional cases need not detain us here, for even if the law did impose a duty on both a named person—e.g., on the secretary of a company to make a return—and on the company itself, the company's duty must, if the provision is not to be fatuous, be capable of being discharged by someone other than its secretary.

11 [1996] Crim. L.R. 545.

12 Home Office, Reforming the Law on Involuntary Manslaughter: The Government's Proposals (May 2000).

13 Doherty (1887) 16 Cox 306 (Stephen J.); Bateman (1925) 19 C.A.R. 8 (Lord Hewitt C.J.); Andrews v. DPP [1937] A.C. 576 (Lord Atkin); Dunleavy [1948] I.R. 95 (Davitt J.); Adomako [1994] 3 All E.R. 79 (Lord Mackay L.C.).

14 See Consultation Paper, No. 135, para. [5.77], quoted in Law Com. 237, para. [7.19].

15 Law Com. No. 237, para. [8.6].

16 Cl. 4(1) (6).

17 Note 13 above.

18 Law Com. No. 237, para. [8.6] (my italics). As Professor Sullivan has observed: “While there may be much to be said for wide-ranging safety audits following such deaths, an adversarial trial is not necessarily the best forum.” (“The Attribution of Culpability to Limited Companies” [1996] C.L.J. 515, 541).

19 Wells, [1996] Crim. L.R. 545.

20 Even if, as Professor Gobert surmises, “The term ‘management’ is used to refer to the management of the enterprise's affairs, and not to the acts or failings of persons who can be classified as managers”, (2002) 118 L.Q.R. 72, 79, jurors will still need to know how to decide which failings are which.

21 Gateway Foodmarkets Ltd. [1997] 3 All E.R. 75, 84.

22 Law Com. No. 237, paras. 8.10, 8.24-8.34.

23 Notably Professor Wells, [1997] N.L.J. 1467-1468

24 The strategies to avoid liability open to the latter have been considered by Professor Gobert, “Corporate Killing at Home and Abroad” (2002) 118 L.Q.R. 72.

25 Morby (1882) 8 Q.B.D 571; Curtis (1885) 15 Cox 746; Smith [1979] Crim. L.R. 251; and (in tort) McWilliams v. Arrol [1962] 1 W.L.R. 295.

26 Andrews v. DPP [1937] A.C. 576.

27 Road Traffic Act 1956, s. 1.

28 Spurge [1961] 2 Q.B. 205; Lawrence [1982] A.C. 510.

29 Road Traffic Act 1988, s. 2A.

30 Road Traffic Act 1988, s. 3A.

31 Theft Act 1968, s. 12A.

32 Inflicting grievous bodily harm by maliciously administering poison (s. 23); permanently injuring the health of servants and apprentices by not providing sufficient food (s. 26); burning, maiming or disfiguring by causing an explosion (s. 27); endangering railway passengers by any unlawful act (s. 34); causing bodily harm by furious driving or racing (s. 35); and causing bodily harm by assault (s. 42).

33 Note 12 above, paras [2.10]-[2.14].

34 Cf. C.M.V. Clarkson, “Kicking Corporate Bodies and Damning their Souls”, (1996) 59 M.L.R. 557, 572; and B. Sullivan, “Corporate Killing—some Government Proposals” [2001] Crim. L.R. 31, 34-36.

35 Cf. Wells, C., “Corporate Manslaughter: A Cultural and Legal Form” (1995) 6 Criminal L. Forum 45, 51-52.

36 Sullivan, note 18 above, p. 531.

37 Cf. Bergman, D. “Corporate Misconduct”, [1999] N.L.J. 1849.

38 Law Com. No. 237 (1996), para. [7.27].

39 See, e.g., British Steel plc [1995] I.C.R. 586, 594 (Steyn L.J.).

40 British Airways Board v. Taylor [1977] Crim. L.R. 372 (HL).

41 Unless it could be regarded as having been deliberately, albeit impliedly, swept aside as part of the Commission's astonishing proposal that human beings should be excluded from liability, even as accomplices, for the “corporate killing” offence and that there should be no “director's liability” clause: paras. 8.56-8.58 and cl. 4(4); cf. Wells, [1996] Crim. L.R. 545, 549-550.

42 Criminal Law: The General Part (2nd. ed.) (London 1963), p. 865. V.S. Khanna, “Corporate Criminal Liability: What Purpose Does it Serve?” (1996) 109 Harv. L.R. 1477 provides a more recent (and thoroughgoing and persuasive) critique.

43 A person who does not seek to prevent an offence consents to it if he knows of it, connives at it if he suspects it, and neglects to prevent it if a reasonable person in his position would have known of it and sought to prevent it.

44 Boal (1992) 95 C.A.R. 272.

45 Cf. Interpretation Act 1978, s. 5, Schedule 1.

46 See, e.g., Bergman, D., The Perfect Crime?—How Companies Can Get Away with Manslaughter in the Workplace (Sheffield 1994)Google Scholar, passim, but especially pp. 97-101; and Slapper, G., Blood in the Bank: Social and Legal Aspects of Death at Work (Aldershot 1999)Google Scholar, especially pp. 35-36, 72, 118-120, 131-132.

47 Offences against the Person Act 1861, s. 20.

48 R. Clifton, “Boardroom GBH” [2000] N.L.J. 104.

49 As Professor Sullivan has rightly insisted (“Expressing Corporate Guilt” (1995) 15 O.J.L.S. 273, 283, 285-286) though he nonetheless somehow managed to give (lukewarm) support to the “corporate killing” proposal (ibid., 291). For the contrary view see, e.g., E. Colvin, “Corporate Personality and Criminal Liability” (1995) 6 Criminal L. Forum 1, and C. Wells, Corporations and Criminal Responsibility (2nd ed.) (Oxford 2000).

50 The author is very grateful to Professor A.T.H. Smith for his comments on an earlier draft of this article.