Arguments for AGAINST a Corporate Manslaughter Act

8/13/2019 Arguments for AGAINST a Corporate Manslaughter Act

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Arguments FOR/ AGAINST a Corporate manslaughter Act

Common law v/s The Corporate Manslaughter actA response to public and legal criticism of the common law, which failed to hold large

companies accountablefor deaths in the workplace.

The common law test requires a duty of care to be present between the employer and employee,

which had subsequently been breached and could be shown to be a substantial cause of the death.

It is then left to a jury to decide whether it was such a gross breach of duty that it should be

deemed criminal.

The paramount requirement of the test, and the most problematic, was that it had to be applicableto a directing mind of the company, commonly known as the identification doctrine.

The case ofR v P&O European Ferries (Dover) Ltd[4]was an example of a large company

evading liability under the common law test because a single directing mind could not be

identified despite eight defendants being brought to trial.

It was thus apparent that large companies are escaping prosecution due to complex management

structures making it difficult to identify the main individual who was directly responsible for the

breach of duty.

The identification doctrine however has been replaced by a senior management test. The new

test requires that senior management, as a whole, permitted the activities that caused the breach,

having the effect of broadening the original test.

Senior management is meant to encompass those managers with health and safety responsibility

lower down the management structure.


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Respected counsel,

My first point of argument concerns the case of R v P&O European Ferri es as mentioned my

Counsel Bootna. It should be noted that this case was unique due to eight directing minds

being identified. Whether the Corporate Manslaughter & Homicide Act, would remedysituations where fewer defendants were identifiable is still questionable.

Secondly, it is fact that the identification doctrine has been replaced by the senior

management test. However, it is important to highlight that the previous doctrine had been

perceived as an ineffective legal theory which has arguably failed to encapsulate the

complexity of the modern company, thus resulting into practical problems of

implementation.

My question here shall be: whats the guarantee that Mauritius which is still follows Le

Code Penal de 1838 will not face even more tedious practical problems of implementation?

What if the senior management test in its turn is not suitable to our hybrid system?

To proceed further, I would like to make reference to the Clause 1(4)(c) of the UK UK

Corporate Manslaughter and Homicide Ac, I would li ke to refer to certain wordings of that

clause.

SLIDE: ((Clause 1(4)(c) of the which defines senior management as in relation to an

organisationthe persons who play significant roles in

(a) the making of decisions about how the whole or a substantial par t of i ts activi ties are to be

managed or organised or

(b) the actual managing of the whole or a substantial part of those activities))

Senior management defined in Clause 1(4)(c) does not necessari ly correspond with senior

positions in the organisations own hierarchy. The person or persons who have these functionsmay have a modest position in the organisations hierarchy, and may not be senior in any

other sense.

Fur thermore, the use of the word persons in the plural should probably not be construed to

mean that proof of fail ures by at least two people is requir ed. The effect of that would to be to


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exclude from liability any organisation in which only one person came within the senior

management definition.

The position in the hierarchy of a person whose functions define him as senior management

may vary fr om one company to another.

Through th is, Dear Counsel, please all ow me to take an example concerning a train operating

company, where senior managers in the company can and will plausibly deny they are senior

management, as they do not have a significant role in those areas of the companys business

that directly concern safety and would engage li abil i ty.

I f i ndividuals cannot be found who come with in the defi ni tion, (pause) the of fence wil l not

have been provedeven though a death has resulted from the companys bad practices. And if

only a juni or staff member can be found, then whi le the organisation may be liable, its more

senior staff who may avoid censure and responsibil ity. They can delegate the function relating

to safety to a level of management which is not senior.

Plai nly, the bigger the organi sation, the greater the distance between r eal senior management

and those taking decisions that may turn out to cost l ives.

I would like to end thi s argument with a question: I f there seems to be imprecise wordings

subject to various interpretations, how can the Act be referred to in the Mauri tian context?

Works for the benefit of the victimSuch an act operates on the basis that there is a link between the company and the individual in order the

companys liability to be held. This link is in the form of being an employee or a consumer of a good or

services of the company. In addition, both private and public companies can be held liable. In terms of

liquidity, a company is more solvent then an individual, if compensation needs to be paid to the family of

the victim, the company will be in a better position to make this payment especially in such a case where

the victim is living behind children or any financially depended individuals.


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The act has an inability to hold individuals culpable. Only the company can be found liable under

the act and not individual company members. If an individual is to be prosecuted it must be done

under the common law offence of gross negligence manslaughter.

More importance to health and safety policiesThe main aim of the act will be to increase prosecution rates for deaths in the workplace, thereby

changing company attitudes towards their health and safety procedures. It is hoped that a broader test for

liability would deter companies from dismissing the significance of health and safety policies and those

who did fail to give adequate weight to such policies would be brought to justice for deaths caused in theworkplace as a result. The mere fact of being able to demonstrate such focus will, of itself, go a

considerable distance in defeating any prosecution. Companies will be compelled to examine their health

and safety training and to make provisions so that the highest standards are met to avoid potential

corporate manslaughter charges and ensure that senior management do not face personal liability.A

reinforcement of this was the recent prosecution in England. The Gloucestershire-based firm was fined

385,000. The prosecution suggested that the company had failed to take all reasonably practicable

steps toprotect the health and safety of its employees, notably ignoring well-recognized industry advice

whichprohibited entry to pits more than 1.2 metres deep. At the time of his death, the company had alsoleft Alexander Wright unsupervised and alone on the site.

Health and safety policies already exist

1- The Occupational Safety and Health Act is the primary legislation. Its aim is to consolidateand widen the scope of legislation on safety, health and welfare of employees at work. In

accordance with section 100 of the Act, other Regulations have been issued on: Personal

Protective Equipment, Safety of Lifts at Work , Noise at Work , Scaffold , Employee's

Lodging Accommodation and Electricity at Work.

2- General Agreement on Trade and Services (GATS)There are two specific clauses in the General Agreement on Trade and Services (GATS) that refer

to occupational health.


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i) Article XIV lit. b) GATS Measures that are necessary to protect human, animal andplant life or health can be based on this clause. The fact that this clause also includes

most regulation for OH&S can be proven without difficulty. Should this not be

provable directly,

ii) Article XIV lit. c) GATS can be consulted to support the requirement of occupationalsafety. Here actions by government of the member states, which hinder international

services transactions (measures), are permitted if they are necessary to ensure

compliance with laws and other regulations and are not in contradiction with the

GATS.

3- The North American Free Trade Agreement (NAFTA) included OSH in a labour sideagreement entitled the North American Agreement on Labor Cooperation (NAALC).

(Brown, 2005). Occupational health and safety is one of three areas where NAALC haspower to enforce sanctions, when a country has failed to enforce a labour law.

Why there is no need for such an act in Mauritius

In the past three years since the CMCHA came into force there has only been one prosecution to

date. The aim is to punish large corporations who do not adequately implement health and safety

regulations, who can subsequently rely on the identification doctrine as a shield to hide behind.

However in Mauritius there are not such cases and besides there are already acts and conventions

for those reasons and the companies are as well met with sanctions in cases of non-compliance.

Such an act would be valid had these cases been prevalent in Mauritius but there is none so there is

no need for such an act.

Targeting poor management rather than individualsThe Corporate Manslaughter and Corporate Homicide act of 2007 in the UK was introduced in

order to provide justice not only against individuals but also that of crimes that happened as aresult of poor management or organisation. The management can be held liable should their lack

of a duty of care cause a persons death, and amount to a gross breach of a relevant duty of care

owed by the organisation to the deceased. Under the act, companies can be found guilty of a

gross failure that leads to a person's death irrespective of whether a manager or director can be

held personally liable; previously, prosecutors had to identify a "controlling mind".


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Previously, according to Watson solicitor Des Collins"Lots of companies have tried to obfuscate

and hide their senior management behind such a cloak of darkness that it will be almost

impossible for prosecutors this act will ensure that a senior manager for health and safety will be

assigned.There is no need for such an act to ensure the assignment of a senior manager for the

integration of health and safety in the corporate environment. Dear Counsel, the insertion

of clauses for compensation of the families of the victims may be reviewed and considered

instead of employing a senior manager. As such, this will ensure that in any circumstances,

the employees will feel secured. Moreover, the process of prosecuting the senior manager

maybe lengthy and may incur losses in the companys prestige, name and asset.

Penalties can act as a deterrentThe penalties falls under 3 broad categories which may act as a deterrent, they include unlimited

fines, a remedial order, which will require a company to take steps to remedy any management

failure that led to a death. And the court can also impose an order requiring the company to

publicise that it has been convicted of the offence, giving details, the amount of any fine imposed

and the terms of,any remedial order made.

If the organization does not comply with any orders made against it, this itself will be a criminal

offence punishable by an unlimited fine.Here, arises the most worrying issue of sentencing within the Act; it does not permit prison

sentences. It must be emphasised at this point that individuals may still receive prison

sentences for the individual offence (i.e. manslaughter by gross negligence). However, this

highlights individual criminality and not corporate criminality.

Would it be more effective to punish the culpable individuals as opposed to a corporation?

Arguably the pursuance of individuals would be an easier process as identifying culpable

individual parties would be more straight-forward and would thus ensure a higher ratio of

convictions. Also, individual liability would remove the arduous task of trying to find

tenuous links between the far-removed senior management and the acts and omissions of

employees. But does easier mean better? The focus on individual liability may notably fail

to take into account that a company's poor decision making process was evidently a

substantial cause of death. It would also fail to encapsulate the concept of corporate


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criminality and reiterate that the battle to impose and justify corporate accountability is

lost.

Case laws to illustrate the need for the act (UK)

1) One example of a high profile case that happened before the act came into force was that of thesinking of the Herald of Free Enterprise. Time pressures from the company to complete as many

sea crossings as possible lead the staff to being over worked and inevitably mistakes were made in

the form that the bow doors were not closed before departure, water rushed in and of cause the boat

sank, 193 people lost their lives.Using only the identification doctrine the case collapsed and

nobody was found liable due to the fact it was not possible to identify the directing mind of the

company due the size and complexity of the internal structure and as such to be reckless enough for

the charge of gross negligence manslaughter. Had the 2007 act been in place then the Jury wouldnot have had to consider who was personally at fault with the disaster but rather the management

practice of putting the boat to see with its bow doors open and of cause the management could have

been tried under the act as they would be vicariously liable.

2) A further example of a high profile case came with that of the Clapham Junction Rail Crashonthe 12th December 1988 which resulted in 35 deaths and over 500 injuries. After an abrupt signal

change the driver reported to signal control that he had ran a red light, despite this the driver was

told he was clear to proceed, another train then ran into the back of the first train after also beingunder false proceed signals. The second crash came as a result of a train crashing into the wreckage

and thus derailing. After an inquiry it was revealed that major re-signalling work that should have

been undertook by senior management was actually overseen by two middle level technical staff

that had very little supervision over them. Despite the facts that after the inquiry a number of

recommendations were made into how British Rail should improve their safety standards, no actual

convictions were ever made despite the obvious fact of a breach in the duty of care.

3) In Mauritius In two cases at Casela involving 2 children being injured, corporate manslaughtercould have ensured the compensation for the injury of the 2 children for breach of duty of care and

security. More recently, in a case where by 2 children died at the water park within 10 days of each

other, the investigation is still on going, corporate manslaughter can well be applicable in this

circumstance towards the benefit of the childrens victim.


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((We have to emphasis upon responsabilite des parents, etc so that we do not give hand to

the fact that corporate liability would be justified))

A Case Law After implementation of such an act (UK)

The first actual conviction for Corporate Manslaughter came as a result of the Lyme Bay Canoe

Disasterwhich came about of the death of 4 teenagers due to ill maintained equipment that was used on

the outing. The acting mind of the Managing Director attributed to the workings of the company in the

sense that safety standards were low and he knew full well of this. As such the company was fined

60,000 and the Managing Director received three years in jail, but only served two on appeal.

Figures that show the effectiveness of the act

Happily there have been no major disasters since the act came into force. And while 152 people died at

work in 2009/10, this was according to theHealth and Safety Executivethe lowest number for many

years.
http://www.hse.gov.uk/http://www.hse.gov.uk/

Arguments for AGAINST a Corporate Manslaughter Act

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