1.  AGGRAVATED HEALTH AND SAFETY OFFENCES

  The proposals for an offence of corporate manslaughter in Cm 6497 assume that the current law of corporate manslaughter and offences relating to health and safety provide an insufficient deterrent for companies and other organisations whose activities are responsible for avoidable deaths. On that assumption, a straightforward way of increasing the deterrent force of the criminal law in the contexts of industrial, extractive and transportation deaths would be to create aggravated versions of current safety laws for situations when the failure of an organisation to comply with legally prescribed standards is a cause of death. There is a familiar precedent from road traffic offences as when, for example, the offence of dangerous driving is upgraded to the more serious offence of causing death by dangerous driving when the dangerous manner of driving is causally linked to a death. Accordingly, the Health and Safety at Work Act 1974 and cognate legislation could be amended to provide for aggravated offences with increased penalties whenever a failure on the part of the company or organisation to provide a reasonably practicable safe system of work constituted a cause of death. Prosecutions would be brought against the organisation and/or responsible individuals. The principal advantage of such offences is that they are merely additions to a long established body of law and practice and would be unlikely to give rise to the uncertainties, protracted trials and appeals that are likely to arise following the enactment of a refashioned offence of corporate manslaughter on the lines the Home Office proposes. Aggravated health and safety offences should be seriously considered as alternatives or supplements to corporate manslaughter. See further Glazebrook at [2002] Cambridge Law Journal, 405-422.

2.  CORPORATE MANSLAUGHTER BILL

  Below are comments on some clauses in the Bill.

  Cl.1(2)(b).  A notable omission from the organisations listed in the schedule are police forces. The explanation given in Cm 6497 are the difficulties arising from the current legal status of police forces. If possible these difficulties should be addressed prior to the enactment of the Bill to avoid this important matter lying indefinitely in the long grass.

  Cl.1(4).  Confining liability for corporate manslaughter to the organisation itself and limiting the sanction to a fine is bound to lessen the deterrent effect of the offence. Furthermore, the senior managers, the persons whose acts or omissions will trigger the organisational liability, may not suffer adverse consequences in any direct personal sense despite conduct causing death and falling far below what reasonably could be expected. If large fines and adverse publicity following a conviction for corporate manslaughter affects the economic value of the convicted company, harsh consequences may follow for rank and file employees, investors and other stakeholders who are entirely innocent of any responsibility for the errors and practices leading to death.

   It is not suggested that these issues should be addressed by imposing liability for aiding, abetting, counselling and procuring corporate manslaughter. There are difficult technical matters and issues of fairness which get in the way of imposing such liability. Yet the need for adequate deterrence, the fundamental premise of Cm 6497, argues strongly in favour of aggravated health and safety offences referred to above. Where appropriate, charges in respect of these proposed offences could be brought against individuals alleged to be at serious fault, alongside a charge of corporate manslaughter against the organisation. Consequent on findings of liability for corporate manslaughter, disciplinary alternatives or supplements to fines should be provided. In particular, the judge should be given powers to disqualify directors found to be seriously at fault, extending the existing disqualification legislation. What must be avoided at all costs is a scenario such as follows. Let us say there is another ferry disaster and in the context of a future prosecution for corporate manslaughter, a cause of the sinking and casualties is found to be the impossibly tight sailing schedules imposed by the company on its maritime staff. A very large fine is imposed on the company. The senior managers responsible for the schedules remain in post without any adverse consequences for their current and future promotion and salary prospects. The impact of the fine and the guilty verdict is suffered by others within and outside the company. Such an outcome may arise under the Bill as it currently stands.

  Cl.2.  The definition of senior management gives rise to considerable uncertainty concerning the scope and application of the proposed offence of corporate manslaughter. At the outset, the only seeming certainty is that the class of person who may be found to be a "senior manager" within the meaning of cl.2 is a wider class than those persons who, under the current law, may be "identified" with the company in the context of corporate manslaughter. Beyond that supposed certainty lays much speculation.

  We may illustrate these uncertainties by adapting the facts of the Lady Gwendolen [1965] Probate 294. Guinness transported stout from Dublin to Liverpool and Manchester using 3 tankers managed by a traffic department, an internal division of the company. One of these tankers collided with another vessel because the tanker's master was speeding in fog and not consulting his radar. The company was found under relevant legislation to be at "fault" in causing the sinking of the other vessel. It was ruled that for the company to be at fault, a director or an officer sufficiently senior to be identified with the company, had to be personally at fault in respect of the sinking of the other ship. If we suppose that the sinking had caused fatalities (fortunately that was not the case) we should be confronted with a case of corporate manslaughter under the Bill provided the fault was a "gross" breach of duty within cl3. We will look now at the individuals who featured in the judgments delivered in the Lady Gwendolen to see if their respective failings would have entailed, under the Bill proposals, liability for corporate manslaughter on the part of Guinness (had deaths ensued from the collision).

  1.  Williams was an assistant managing director of Guinness, one of three persons of that rank. One of his roles was to be responsible, at least in formal terms, for the management of the traffic department. He had not concerned himself with matters of safety and in particular had not ensured that ships masters were advised about speed limits in fog or appropriately instructed in the use of radar. His poor performance (non-performance) in safety matters constituted the necessary fault on the part of the company under the identification principle. One should assume that Williams would now be regarded as a senior manager within the terms of cl.2 in the event, using our adapted facts, of a corporate manslaughter prosecution. Yet there are reasons for doubting whether this would be the case.

  To be a senior manager within the terms of cl2, we must be able to say that Williams played a significant role in the making of decisions about how the whole or a significant part of Guinness's activities were managed or organised. The company had argued that shipping was a very peripheral part of its central activity of brewing. The trial court and the Court of Appeal agreed that this was the case but insisted that if a company engages in shipping, even as a minor part of its activities, it must achieve the standards applicable to maritime companies. Under the proposed corporate manslaughter legislation, the company would be able to maintain that Williams was not a senior manager for the purposes of the company's potential liability for corporate manslaughter because shipping was not a substantial part of the company's activities. Possibly that argument could be defeated if Williams had other responsibilities lying beyond the traffic department sufficiently wide-ranging to make him a senior manager within cl.2. But such additional responsibilities provide no discernible rationale for imposing liability on the company. Liability will ensue only if Williams has responsibilities beyond the management of shipping sufficient to make him a senior manager within the terms of cl.2. Yet the gross breach of duty which must be proved against him within the terms of cl.3 can only relate to the manner in which he failed to discharge his managerial role for shipping arising from his headship of the traffic department. The defendant company will have a strong argument that the activity to which the breach of duty relates must on its own accord be a substantial part of the company's activities if there is to be liability for corporate manslaughter.

  2.  Boucher was the traffic manager for Guinness. He reported to Williams. He had operational responsibility for the land and sea transportation of Guinness products. He was at fault owing to his complete lack of involvement with matters of maritime safety. In the Court of Appeal, Wilmer L J would have been prepared to attribute his fault to the company under the identification doctrine but no such need arose because of the finding against Williams. That leads one to think that should it prove necessary in the context of liability for the proposed offence of corporate manslaughter, any future court would readily find that someone in the position of Boucher was a senior manager within the meaning of cl2 by managing or organising a substantial part of the company's activities. But the same problems relating to "substantial part of its activities" discussed in relation to Williams arise with respect to Boucher.

  3.  Robbie was the marine superintendent. He reported to Boucher. He was aware that the tanker master was "addicted to speed" (in the sense of motion) and also knew the master was, "wholly ignorant of the workings of radar". Robbie was at fault in failing to supervise the master and in failing to report his concerns to his superiors. The Court of Appeal considered that Robbie's faults could not be attributed to the company under the identification doctrine. It is unclear whether his day to day supervision (or lack thereof) of shipping matters can be regarded as a management role in the sense of "managing or organising . . . activities" within the meaning of cl2. Essentially he was applying or failing to apply systems rather than devising or modifying systems. Further, the difficulties arising from demonstrating that Robbie managed or organised a substantial part of the company's activities are more acute than in the cases discussed above. His responsibilities were confined to maritime transport.

  4.  The ship's master was guilty of "complete and inexcusable" negligence in causing a collision in fog with a ship at anchor. It is assumed here that he is not any form of manager for the purposes of cl2. That said, it would be useful to have more guidance on the position of persons such as ship's masters, medical consultants, engineers, accountants, lawyers etc, whose principal role is to apply their professional skills to discrete tasks but who must also exercise some managerial and organisational capacities as an integral part of their work.

Conclusions from case study

  If an incident of the kind involving the Lady Gwendolen causes fatalities, we should be faced with a very clear example of corporate manslaughter. The grave danger the master's navigation and speeding practices gave rise to were known to Robbie for years. Williams and Boucher would have known of this danger had they done their jobs properly. Under the present identification doctrine, there would very likely be a conviction for corporate manslaughter. The same assurance cannot be given for the proposals in Cm 6497. So much will depend on the particulars of corporate organisational structures. If Guinness had shipped its products through a subsidiary company rather than an internal division, the prospects of a conviction against the subsidiary company would be high. Such variables have no bearing on the general interest in using the criminal law to deter corporate failings such as those disclosed in the Lady Gwendolen. The approach taken in cl.2 to capturing organisational failures is deeply flawed.

  Cl.3(2)(iii)  The jury must consider whether the defendant organisation sought to profit from its failures to comply with legislation and guidance. This consideration is not logically linked to a finding of gross breach of duty unlike considerations (i) and (ii).It would be best if it were a factor to be considered at the sentencing stage. It would be unfortunate if the absence of proof of seeking to profit from neglect of safety were to be regarded as a weighty consideration against a finding of gross breach of duty.

3.  AN ALTERNATIVE APPROACH TO CAPTURING ORGANISATIONAL FAULT—AN OUTLINE

  The principal focus of these comments is to demonstrate the difficulties arising from cl2 and to suggest an alternative approach to findings of organisational fault. This alternative way will merely be briefly outlined. The current Home Office proposals have been long in gestation and subject in their various formulations to much discussion and debate. They are unlikely to change in substance—hence the brief outline only. I would be happy to provide further details should there be any interest. Also further details can be found at Sullivan [1996] Cambridge Law Journal 546, particularly at 539-546.

  Looking to identify persons within the organisation whose acts or omissions may be considered to be organisational acts or omissions is to perpetuate, with some adaptation, the current common law approach to corporate liability for serious crimes. A better way for a new law of corporate manslaughter would be, in the event of a death caused by an organisation's activities, to determine whether anyone within the organisation had caused the death by some gross breach of a duty of care owed by him or her. Returning to the adapted facts of the Lady Gwendolen, it would seem that the ship's master, Robbie, Boucher and Williams were each guilty of gross breaches of duty leading to fatalities( using our assumption that the collision caused fatalities). If we suppose a gross breach of duty related to causing death were proved with respect to one or more of these individuals, Guinness, under this proposal would be liable for corporate manslaughter unless it could demonstrate due diligence in the area of its activities wherein the deaths occurred. In our example, Guinness, would have to show that its policies and procedures for maritime safety were all that could be reasonably asked of it and that there were no reasonably avoidable failings in its policies and procedures exposed by the collision which, if corrected, would forseeably have prevented the collision. As it is reasonable to ask organisations familiar with their own systems to prove due diligence, this reverse burden should withstand scrutiny under Art 6 (2), ECHR. Alternatively, the prosecution could shoulder the burden of proving a gross breach of duty causing death on the part of anyone within the organisation and of proving a lack of due diligence foreseeably giving rise to the incident causing death on the part of the organisation. Liability of the organisation for corporate manslaughter would not preclude charges of personal manslaughter against persons within the organisation and corporate and personal charges relating to health and safety offences. There would be no offence of aiding, abetting, counselling or procuring corporate manslaughter.

  It may well be that scrutiny and debate would expose flaws in the corporate manslaughter scheme outlined here. None the less, to proceed with the scheme presented in Cm 6497 will lead to much speculation and litigation about the identification of senior managers whose failings may be counted as organisational failings. This would be of benefit principally to lawyers.