Making corporations liable for criminal offences involves greater

difficulty attached to it than would first appear to be the case.

Discuss with reference to corporate criminal liability generally but
also with reference to the particular offence of manslaughter and any
proposals for reforms of this area of the law.
_______________________________________________________________________
It is widely believed that the existence of corporations can either
enhance the employment opportunities living standards and !uality of
life of people or undermine them. It has been contemplated and debated
in recent times that changing industrial activities evidences the
necessity of regulation. "hese profit minded entities have caused
significant public harm and deaths but have always been pardoned by the
courts and the government. #ence these corporations continue to carry
on their business with little interference from the law. "his document
will discuss some of the problems underlying the $% approach towards
corporate criminal liability. &urthermore it will analyse the law
governing corporate manslaughter and highlight some of the difficulties
encountered in attributing liability to corporations for criminal
conduct. ' company should be criminally liable when it has organised its
business in such a way that persons and property are exposed to
unreasonable and unnecessary dangers. #owever this has not been the
case in the $% due to the stringent approach of the (udges. "hey have
been very cautious in developing the common law relating to corporate
manslaughter and have left the matter for the legislatures to look
after. "he document will look at the general perception of the existing
law and recommend changes to the current structure. It is time to
recognise that criminal law is needed in order to deter corporate
deviance that can lead to significant public harm and deaths.
)

"he view held by most academics as supported by research public
in!uiries law suits and media attention on deviance and law breaking by
corporation indicates that companies often deliberately and sometimes
repeatedly break the law. "o achieve their targeted profits often
corporations fail to manage the risk and engage in activities that
causes immense harm both financially and in terms of loss of life and
limb. *If caught the likelihood of a prosecution is remote the
prospects for a conviction if there is a prosecution are not promising
and the sanctions following the infre!uent conviction can be derisory.+
,
It is widely believed that most governments have been less than fully
committed in combating corporate wrongdoing. -romoting corporations is
one of the areas that every government attends to and to penalise them
for their wrongdoing could affect their liaison and economic growth.
&urthermore until the recent past the general public also had little
interest in this area. .orporations were widely perceived as a benefit
for the community and their actions were largely ignored and disregarded
even when it caused loss to the general public. /verlooking corporate
crime until recently has demonstrated the need for urgent reform as
1
Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R.,
"#$$#%, 11& Jan, at pg &$.
#
'ee generall( Gobert, J ) P*nch, +,. Rethin,ing Corporate Crime, "#$$-%, .*tter/orths0 e1is 2e1is,
ondon.
the world has realised that the effects of corporate crimes are more
harmful more costly more extensive and more debilitating than those
which follow from street crimes which has been the main focus to curb by
many governments till today.
0

It is contemplated that the real difficulty in attributing criminal
liability is caused by the fact that we are too wedded to the
traditional notions of criminal law when we are trying to impose
criminal liability on companies. Instead we should look at the company
for what it is an abstraction and examine ways in which it might be
possible to hold corporations accountable for crimes which have arisen.
' company as a legal abstraction is reliant on its agent and employees
to perform the actions that a natural person would perform. 's such a
company might be vicariously liable for the torts that its agent commit
through the operation of ordinary tort law. In general it is relatively
straight forward to determine when a company will be liable for the tort
of its agent. If one can determine that the agent had authority to
commit a particular act and furthermore that the tort was committed in
the course of the company+s business then the company will be liable.
1
#owever the controversial issue is that of a company+s liability for
crimes. Most offences have two elements2 the actus reus and mens rea.
"he company as a legal abstraction cannot commit either of these itself.
/nce again its agent must commit the act and have the mental element
re!uired to satisfy liability. 's we shall see this has caused great
difficulty for the law and has rendered it extremely difficult to
achieve a successful prosecution for many crimes particularly where the
acts or omissions of a company have killed someone.
3
's a general principle a company should bear responsibility for
outcomes that follow from the way that it conducts its business
operation. 4hen those outcomes are criminal then the company should be
criminally liable. It has been simple to attribute criminal liability to
the company where a statutory offence gives rise to vicarious liability
on the part of a company for the acts of its employees.
5
6uch liability
may arise even where the employee in the course of its employment acts
contrary to the instructions or company policy.
7
"he other method of
attributing criminal liability is by the identification doctrine. "his
doctrine as we will see has caused a lot of problems and the
underlying idea behind the concept has been severely criticised.
$ntil recently it was not clear whether a company could be charged for
any offence which re!uires proof of mens rea.
8
"he traditional approach
drew a distinction between the hands and mind of the company. It was
contemplated in 9ennards .arrying .o 9td
:
that a company cannot be
guilty of any crime which re!uires a significant mental element unless
-
'ee generall( Gobert, J ) P*nch, +,. Rethin,ing Corporate Crime, "#$$-%, .*tter/orths0 e1is 2e1is,
ondon.
3
As per .*tler0 'loss .J in 4rotman v 2orth 5or,shire Co*nt( Co*ncil, "166&% 78CA Civ 1#$& at para
19.
:
'ee generall( R v P ) ; <erries "=over% td. "1661% 6# Cr. App. R. >#
9
Hannigan, .., Compan( a/, "#$$-%, e1is 2e1is0 .*tter/orths, ondon, at pg 61.
>
Re '*ppl( of Read( +i1ed Concrete "2o #%, =irector General of <air 4rading v Pioneer Concrete "?K%
td, "166:% 1 .CC 91-, H.
&
As per Channell, J, in Pear,s, G*nston and 4ee td v 8ard "16$#% # K. 1 at pg 11.
6
ennards Carr(ing Co td v Asiatic Petrole*m Co td. "161:% AC >$:.
the directors technically the mind of the company are aware and
sanction the commission of the crime. 4ith the passage of time and
changing industrial activities now involving greater risk for the
employees and the general public it was thought necessary to strictly
abide by safety standards and any offence committed with a criminal
state of mind by an employee should be attributed to the company *where
the circumstances are such that the knowledge and intention of the
employee must be attributed to the body corporate+.
);
D/- v %ent <
6ussex .ontractors 9td is one of the earlier cases where the
possibility of using the identification doctrine against a corporate was
approved in cases involving the mental state of mind. "he doctrine was
further propounded in the leading case of "esco 6upermarkets 9td.
))
It
was made clear in this case that a corporate could only be found guilty
of the crime through the identification doctrine and the directing mind
and will does not encompass (unior management. *"he reasoning rests on a
crude distinction between persons who can be described as the brains of
a company and workers who are said to be its hands+.
),
It is a
!uestion of law once the facts have been ascertained whether or not the
wrongdoer is to be regarded as the company or merely as an employee or
agent. 'ccording to 9ord =eid *these persons are not the alter ego of
the company but rather for all intents and purposes are the
company+.
)0
4hether the identification doctrine has been able to achieve
its aim of rightly punishing the offender or not is an issue that merits
brief discussion here.
*' two step analysis first identifies the perpetrator and then
envisages if that person has sufficient standing as to be identified
with the company+.
)1
4ho these persons are is a matter of (udicial
resolution. "his approach of *identifying the mind+ has proven highly
elusive for it is apparent that mistakes are not always forthcoming from
the few people categorised as the mind of the company. /nly if they
falter the company would arguably be convicted. &aults made by people
lower down the order may regrettably cause loss of hundreds of lives
but still will not be enough for a successful prosecution. Identifying
the offender as the mind of the company has been a problematic issue.
"he problem with the identification doctrine is that it becomes most
unlikely that companies will be held liable for crimes that they commit.
It fails to capture the complexity of the modern company. "he
responsibility for any given facet of a company+s operation is normally
distributed among different managements within the company. "he
conse!uence is that the company will be able to escape criminal
liability for most act of its employee because the current approach of
identifying the offender has restricted the ability of the law to punish
the offender as they ought to be. *.orporate accountability for death is
hampered by the tiers of company structure and the doctrine of
identification+.
)3
Identification doctrine prima facie is practical
1$
As per +acnaghten, J in =irector of P*blic Prosec*tion v Kent ) '*sse1 Contractors td "1633% K. 139
at pg 1:9.
11
4esco '*permar,ets td v 2attrass "16>#% AC 1:-.
1#
Gobert, J ) +*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B, "#$$#%, Criminal
a/ Revie/ at pg 916.
1-
As per ord Reid in 4esco '*permar,ets td v 2attrass "16>#% AC 1:- at pg 1>1.
13
Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, at pg -6:.
1:
Pinto, A ) 7vans, +., Corporate Criminal iabilit(, "#$$-%, '/eet ) +a1/ell0 ondon, at pg ##1.
when the crime is committed by a small firm in the course of its
business.
)5

'nother practical difficulty in holding corporations criminally
responsible exists in the health and safety area. -arliament has filled
the gaps in this area with regulatory offences which have not proved
particularly effective in curbing corporate wrongdoing. "he #ealth and
6afety >xecutives
)7
are responsible for the enforcement of these laws
and are under a statutory duty to investigate any work related death.
#owever these officers have no legal authority to bring a prosecution
against the corporation for the offence of manslaughter. "hey are
re!uired to investigate the cause of the accident and then pass on the
information to the police.
)8
*/ften under funded and inade!uately
staffed these officers have been reduced to a compliance strategy+.
):
'ttempts are made at first instance to negotiate a settlement with the
offending company and past offences are overlooked in exchange for a
promise not to commit future ones. >ventually punishment corporations
battered with have been fines for the victims. In the case of large
corporations even relatively large fines are fairly insignificant. It is
logical to assume that victims are not always content with monetary
compensation and *may feel deprived of the cathartic vindication which
is provided by a criminal conviction+.
,;
#ence regulatory offences seem
inade!uate to deal with serious corporate wrongdoing *for they are
neither sufficiently stringent to deter nor sufficiently onerous in
their sanction to punish+.
,)
"he traditional doctrine of Identification and reluctance of the
-arliament and its officers to bring charges against a corporation for
death or serious in(ury has rendered it difficult to bring a successful
prosecution against the corporate. Despite the harm the in(uries and
the loss of life over the years and despite evidence of arguably gross
negligence on the part of the defendant companies obtaining a criminal
conviction has proved highly elusive. ' true criminal alternative is
needed to punish these entities for *industrial accidents+ that causes
significant public harm and deaths.
"he document will now look at the offence of corporate manslaughter and
address some of the issues underlying the common law offence. -ressure
for reform has been mounting by an increase in awareness and
responsiveness of the number of people killed or in(ured every year in
the workplace where blame could rightfully be attributed to the company
involved.
,,

Corporate manslaughter
"here has been an increase in outcry for reform of the law relating to
corporate manslaughter. *"he issue is catapulted on to the political and
19
R v Kite "1669% # Cr. App R, #6:.
1>
Hereafter referred as @H'7B
1&
Pinto, A ) 7vans, +., Corporate Criminal iabilit(, "#$$-%, '/eet ) +a1/ell0 ondon, at pg #1&
16
Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, at pg -6-.
#$
Abid at pg -63.
#1
Abid.
##
Health and 'afet( 71ec*tive 'tatistics "///.hse.gov.?,Dstatistics%.
academic agenda by a series of much2publicised transportation and other
?disasters? most of which were followed by public in!uiries blaming the
companies operating the various activities+.
,0
"he topic has attracted
significant attention in the $% in recent years. It has been reported
that since ):5: there have been )8)3) persons killed at work without a
single conviction of a company for an offence of homicide.
,1
"he
difficulty in holding a company criminally accountable for the harm
caused continues to vex the >nglish (udiciary.
,3
Despite numerous
attempts to curb corporate wrongdoing by applying conventional criminal
law to companies not a single existing corporate has been prosecuted.
@udicial ob(ections have been procedural historical and pragmatic.
,5
"heir stringent approach with regards to corporate crime have come under
intense criticism and rightly so. 9egislative and (udicial changes have
been desired expected and discussed by the government media and in
particular by the victims of corporate wrongdoing. It is important to
look at a few important cases that have aroused interest and highlighted
the need for change as these exposed the fragilities in the common law.
"he issue was raised in the modern context initially by the decision in
= v - < / &erries 9td.
,7
"he capsiAe of the ferry causing considerable
loss of lives and the failure to obtain a conviction in the subse!uent
prosecution was the initial prompt to much of the interest in this
topic. @udges adhered to the traditional approach of identification and
affirmed that a corporate would only be guilty of manslaughter if it
could be shown that the actions in !uestion were from one of the minds
of the company. .onversely the prosecution in this case attempted to
argue that defendants could be guilty if the acts and mental states of
more than one individual within the company were aggregated in order to
establish the re!uired degree of recklessness on the companyBs part.
,8
"his approach known as the *aggregate model+ was re(ected by the
courts in this case and the subse!uent prosecutions. "his approach
attempts to allow the acts omissions and mental states of different
people in the company to be added up in order to satisfy the elements of
a crime.
,:
*"his allocation of responsibility is appropriate for the
negligent acts of the individuals concerned might not when looked at in
isolation reach the level of gross negligence re!uired for individual
criminal liability. #owever when these individual acts of negligence
are added together they may lead a fact2finder to discern a pattern of
recklessness or gross negligence on the part of the company+.
0;
It would
have been possible to convict the defendant in - < / &erries had the
courts aggregated the acts and omissions of the different people
responsible for the catastrophe. Cut the courts thought otherwise and
dismissed the aggregation approach as a possible route to corporate
manslaughter. It was contended that the defendants should not be
#-
Clar,son, C.+.E, @Corporate +ansla*ghterC 5et more Government ProposalsB, Crim. .R. "#$$:%, 'ep, at
pg 9>>.
#3
'lapper,. @Corporate +ansla*ghterC An 71amination of the determinants of Prosec*torial Polic(B, "166-%
'ocial and egal 't*dies, pg 3#-0 #:.
#:
Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, at pg -6-.
#9
Pinto, A ) 7vans, +., Corporate Criminal iabilit(, "#$$-%, '/eet ) +a1/ell0 ondon, at pg #1>.
#>
R v P ) ; <erries "=over% td. "1661% 6# Cr. App. R. >#
#&
Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, at pg -6:
#6
Abid, at pg 3$3.
-$
Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R.,
"#$$#%, 11& Jan, at pg >6.
convicted on the basis of another person+s act or omission when the
corporate has taken all viable measures to prevent such accidents.
0)
*'ggregation was thus an attempt to capture more accurately the nature
of corporate fault. #owever the concept did not appeal to the courts
and corporate liability based on aggregated fault died stillborn+.
0,
"he 9aw .ommission were soon after referred to examine the law on
corporate manslaughter. "he .ommission recommended legislation in order
to clarify and indeed extend the law by proposing a separate offence of
corporate killing. "heir report proposed to confer corporate liability
for death based on management failure without invoking the agoniAing
identification doctrine.
00
It sought to overcome the problem created by
identification doctrine by proposing that *a company should be guilty of
corporate killing when its conduct fell far below what could reasonably
have been expected of it in the circumstances and was one of the causes
of the death+.
01
"he proposals were not attended to and subse!uent cases
and ac!uittals of the corporations saw the (udicial approach being
criticised at an elevated level. .ompanies were being branded as mass
murderers in the eyes of the public still not much was done by the
government to embrace the victims and punish these profit minded
corporations.
' unified voice of the public was heard again after a series of rail
crashes in the mid nineties such as the 6outhall rail crash
03
which
involved substantial loss of life. *"he prosecution argued that if it
could show gross negligence on the part of the company it should not
have to prove that any senior official in the company was guilty of
manslaughter as re!uired by the identification doctrine+.
05
#owever
this view did not stir the (udges who have been very cautious up till
now when attributing liability to the company for their crimes. "he
prosecution failed again because of an inability to identify negligence
by any individual at the level of the directing mind and will of the
company. 6adly Dreat 4estern =ail .ompany was ac!uitted and only had to
pay a fine.
It was thought necessary after the ac!uittal of the Dreat 4estern =ail
from charges of manslaughter to re examine the law on corporate
manslaughter closely and redress the difficulties in holding
corporations due to the identification doctrine criminally
responsible. Dobert identified four possible models of fault which might
be used to simplify the criminal liability of companies.
07
It will be
useful here to briefly discuss the models here in order to determine
whether these methods can offer a more satisfactory approach to the
-1
As per .ingham, J in R v P ) ; <erries "=over% td. "1661% 6# Cr. App. R. >#
-#
Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R.,
"#$$#%, 11& Jan, at pg >6.
--
8ells, C., Corporations and Criminal Responsibilit(, #
nd
edition, "#$$1%, ;1ford ?niversit( Press, at pg
1#-
-3
?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at
para &.-:
-:
A0GBs Reference "2o # of 1666%, "#$$$% - All 7R 1&#.
-9
Gobert, J ) +*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B, "#$$#%, Criminal
a/ Revie/ at pg 9##.
->
'ee generall( Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies, pg
-6-0 31$.
attribution of criminal liability to companies or should we (ust stay
as we are.
"he first model attempts to impose vicarious liability on the company
for the crimes of its employees and agents. "his is the prevalent
approach in the $nited 6tates where employers are potentially liable for
most crimes which occur within the course of their business operation.
08
#owever the (udges in the $% have gone in the opposite direction and
have in general adhered to the view that an employer is not criminally
liable for the acts of an employee.
0:
Eicarious liability has only been
imposed where in the courts opinion it was intended by the -arliament
mainly in the health and safety areas in the form of regulatory
offences.
1;
"his proposition of vicarious liability was re(ected by the
9aw .ommission because *it could penalise a corporation even when it had
positively discouraged the offending activity or was unaware of it+.
1)
It is arguably unfair to punish a company for a crime committed by one
its employees when far more of its employees have striven
conscientiously to prevent the crime. &urthermore the difficulty of
identifying an individual employee is not addressed by imposing
vicarious liability and it serves only to satisfy the actus reus element
of criminal liability. "his in effect has restricted the scope of
vicarious liability to offences where liability is strict or where an
employee is performing a statutory duty on behalf of its employer.
1,
"he
purpose of vicarious liability can be defeated if the employer is able
to show that he acted with due diligence and had taken all reasonable
steps to prevent the harm from occurring. "he second doctrine proposed
is the identification model. "he problem attached to this doctrine has
already been touched in this document. "he third model is known as the
aggregate model which has also been discussed above. "he .ommission
re(ected this method because it did not obviate the need to identify an
individual at fault and presents the same hurdle as the current law.
10
9astly the concept of *corporate fault+ imposes a legal duty to prevent
the occurrence of an offence. It covers issues such as corporate
governance and expects corporations *to collect information regarding
potential dangers possessed by its employees collate the data and
implement policies which will prevent foreseeable risks from occurring.
If the company is derelict in this duty and a crime has resulted it
must bear the responsibility+.
11
9iability through corporate fault
appears to understand the underlying concern of putting ade!uate
mechanisms in place in order to avoid an accident. Fo proof of
individual liability is needed and it signifies the importance attached
to safety standards in this era.
-&
Abid at pg -6:.
-6
Abid at pg -69
3$
+o*sell .ros v ondon and 2orth/estern R( "161>% # K. &-9.
31
?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at
para >.#&.
3#
Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies , at pg -66.
3-
?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at
para >.#&.
33
Gobert, J. @Corporate Criminalit(C <o*r models of <a*ltB, "1663%, 13 egal 't*dies , at pg 3$6.
Fotwithstanding the increased public concern with corporate safety
standard the .ourt of 'ppeal in '2D+s =eference GFo , of ):::H
13
confirmed that liability for manslaughter could only be imposed on a
company under the principle of identification.
15
"he response of the
court in adhering to the identification doctrine was in order *to avoid
the in(ustice of imputing to the blameless company every act and state
of mind of individual employees+.
17
"he political media and public
criticism against corporate bodies seen to be putting profits ahead of
safety *spurred the government to bring forward a consultation paper
that resurrected the 9aw .ommissionBs proposal for an offence of
corporate killing+.
18
&ollowing the recommendations made by the 9aw
.ommission earlier the government proposed to accept the new offence of
corporate killing.
1:
&urthermore in endorsing the proposals the
government expressed its intention to extend the application of the new
offence beyond incorporated bodies to cover undertakings that is *any
trade or business or other activity providing employment+.
3;
's
suggested the corporate would be guilty of killing if *a management
failure by the corporation was the cause or one of the causes of a
personBs death and that failure constituted conduct falling far below
what could reasonably be expected of the corporation in the
circumstances+.
3)

"he governmentBs proposal for a crime of corporate killing constitutes
an important advancement in this area and marks a dramatic break from
conventional >nglish thinking on corporate crime but as we will see it
is still deficient in many respects and academics have expressed their
scepticism regarding the effectiveness of the proposal. Management
failure is as discussed above falling far below the expected standards
in the circumstances. It is not every management failure that results in
death that will render a company liable for corporate killing. "he
problem lies in ascertaining whether the conduct in !uestion is
acceptable or not. /ne possible approach suggested by the 9aw .ommission
was that similar trade and industry practises must be taken into
consideration while reviewing the reasonableness of the conduct in
!uestion.
3,
"he issue of classifying the *reasonable standard+ can often
cause complications as one cannot define accurately the standard giving
rise to culpability. "he standards may be set by political and economic
consideration or may be is already set at too low a level.
30
"hese
difficulties were illustrated by the - < / &erries case *where it
emerged that - < /Bs &erries were not alone in making cross2.hannel
sailings with open bow doors. /ther companies had done the same albeit
3:
"#$$$% - All 7R 1&#.
39
'imister, A.P., ) '*llivan, G.R., Criminal a/0 4heor( ) =octrine, "#$$-%, #
nd
edition, Hart P*blishing0
;1ford, at pg #::.
3>
8ells, C., Corporations and Criminal responsibilit(, #
nd
edition, ;1ford ?niversit( Press, "#$$1%, at pg
11-
3&
Gobert, J ) P*nch, +,. Rethin,ing Corporate Crime, "#$$-%, .*tter/orths0 e1is 2e1is, ondon, at pg
1$3.
36
?K Home ;ffice, @Reforming the a/ of Anvol*tar( +ansla*ghterC 4he Government ProposalsB "#$$$%.
:$
Abid, para -.#.#, at pg 1:.
:1
?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at
para &.-:
:#
?K a/ Commission Paper #->, "1669%, @egislating the Criminal CodeC Anvol*ntar( +ansla*ghterB at
para &.>.
:-
Griffin, '. Compan( a/, 3
th
edition, "#$$9%, Pearson ongman0 ondon, at pg 1$9.
with less disastrous results. >xecutives of these other companies
testified that the risks of capsiAe were not obvious to them. It was
this testimony in part that convinced the court to dismiss the
manslaughter charges against - < / &erries+.
31
It is hard to imagine how
recognition of the ignorance of shipping executives could be allowed to
set the standard of what was to be reasonably expected of a ferry
operator under the circumstances. 'lthough these transport corporations
claim to uphold safety of their passengers as the top most priority such
ignorance has prompted concern among the masses. >xcusing the corporate
for ignorance may encourage other corporations also may be in different
industry to set a very low standard and express similar ignorance if an
accident happens. 6uch excuses are not expected to provide any
consolation for the victims and will only aggravate the current
situation. =ather than investigating from the executives of the same
industry the right approach would be to in!uest whether the public were
denied a better standard in the circumstances. It is submitted that the
expectations of those in the industry should be of evidentiary relevance
in answering the !uestion of accepted standards but they should not be
determinative.
33
Fo clear line can be drawn to ascertain what the public has the right
reasonably to expect of a company in a particular industry. In =. v.
'domako
35
the difficulties of formulating a precise standard were
discussed and it was decided that the matter should be left to be
determined by the (ury by applying their personal knowledge and
experience. "he issue was whether an anaesthetistBs negligence was so
gross as to render him liable for gross negligence manslaughter when his
patient died. It seems an easy task for a layman to determine whether a
doctor failed to show the standard of care and skill expected of him
while performing the surgery. It is widely believed that where issues
don+t raise any serious complications or !uestions of technical
knowledge the (urors by virtue of their collective experience are
normally able to discern what would have been a reasonable course of
action for the defendant to have followed in the circumstances.
37
#owever to uphold such (ury standards for the crime of corporate
killing sounds inappropriate. >ven though (ury is made up of a lot minds
and carry a lot of experience it is not thought wise to leave them with
determining such complex matters. "he problem lies with the
complications and technicalities involved in determining reasonable
standards given a particular industry. =arely will (urors be able to
draw on their personal experiences to determine what a reasonable
company would have done under the circumstances.
38
"hey can fall for
both sides and hence should not be invited to draw upon their personal
experiences and partial knowledge to try corporate killing.
:3
Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R.,
"#$$#%, 11& Jan, at pg &#0 -.
::
Abid at pg &-.
:9
"166:% A.C. 1>1.
:>
Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R.,
"#$$#%, 11& Jan, at pg &3.
:&
Gobert, J., Corporate Killing at Home and Abroad Reflections on the Government Proposals, .!.R.,
"#$$#%, 11& Jan, at pg &3.
It is apparent that the proposed Cill carries with it new problems and
is not free from encumbrances. "he specific test of liability fails
both to provide fair notice to companies of what specifically is
expected of them or guidance to the (ury or fact finder as to when a
conviction is warranted. Cesides these failings the governmentBs
proposal is limited in its scope also. It applies only to homicides and
not to any work related in(uries. It is contemplated that serious
workplace in(uries are far more common than workplace deaths and
offences involving loss of property may perhaps be more common still.
3:
It is unclear whether the proposed Cill would be effective if it is
enacted since many academics and scholars have already expressed
their doubts in its entirety to hold corporations criminally
responsible. Despite considerable lapse of time and numerous public
responses the government has failed to enact the new legislation on
corporate killing. 6ince proposing the new offence there has been very
little in the way of progress. It is painstaking to see the road to
reform being sabotaged by the political clout of big business. 's a
result all we can do is speculate for now.
It is important to contrast the approach in $% with some other
(urisdictions in order to highlight the limitations currently existing
in the law of manslaughter. Ideas adopted in foreign (urisdictions
could help broaden and refine the approach of the courts in the $%
and bestow them with powers that they ought to have. In Italian law a
new statute
5;
has broadened the approach relying either on an
identification doctrine but an identification doctrine which is
willing to look beyond the directors in order to ascribe fault. In
addition to this the statute extends to corporate fault by examining
whether the company had sufficient policies in place to prevent risks.
5)
'nother potential method for inflicting punishment on firms which
transgress the law is to render the directors liable for such
transgressions. "his is of course a form of lifting the corporate
veil which has very occasionally been used in the $% and other
(urisdictions. 6ome $6 states favour the punishment of a particular
director or group of directors as does the .hinese legal system with
its concept of the legal representative. It would be unusual in the
$% for a director to be held responsible for the crimes and
misdemeanours of their company. In the $% the law has had considerable
problems with this concept preferring to maintain the corporate veil
and punish the company through the means of a fine for any
transgression of the criminal law. In .hine the law goes further more
and there is potential for the legal representative to be prosecuted
for the company+s crimes even though the legal representative tends to
be very senior member of the company+s management.
5,

:6
+*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B "#$$#% Criminal a/ Revie/,
pg 9#-
9$
=G' "egislative =ecree% of J*ne &, #$$1 n.#-1 "=ecreto egislativo F=isciplina della responsbilitG
amministrativa delle persone gi*ridiche, delle societG e delle associaHioni anche prive di personalitG
gi*ridicaF%. P*blished in GaHHetta ?fficiale n.13$ of J*ne 16, #$$1.
91
Gobert, J., ) +*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B "#$$#% Criminal
a/ Revie/, pg 9#:.
9#
'ee generall( .a1ter, C.R ) ;ng, K.4., @A Comparative st*d( of the <*ndamental elements of Chinese
and 7nglish Compan( a/B, "166&%, 3&, Anternational and Comparative a/ !*arterl( at 6:0>.
Proposals for reform:
It must be noted that reliance on the identification doctrine has caused
numerous problems and an urgent reform of the law is needed if $% wants
to control the activities of the corporations. *"he (ustification for
corporate criminal liability rests primarily on pragmatic rather than on
moral foundations+.
50
It is proposed that courts should look at
organisational fault described above as *corporate fault+ in
attributing liability rather than attempting to identify the mind and
will of the company or aggregating the cumulative fault of the
employees. "he approach is more flexible and is in line with the Italian
approach. $nder this approach a company would be guilty of gross
negligence if the company fails to prevent its employee from behaving in
a negligent or illegal manner.
51
"his would encourage the companies to
put in place ade!uate safety measures and formulate stricter company
policies. &or the crime under this approach is committed when the
corporation fails to prevent a criminal offence. *Drounding corporate
criminality in organisational fault will direct a company+s attention to
how its business is organised and will promote systems procedures and
cultures whose aim is to achieve compliance and safety through the
practise of due diligence+.
53
#owever organisational fault should not be
considered as the absolute test of culpability because it is designed to
supplement the existing theories of corporate criminal liability namely
the identification vicarious and the aggregate approach. It is not
designed to displace or preclude the other theories but to supplement
it. It is contended that it will be another way albeit more useful of
attributing corporate liability. $nlike the other methods organisational
fault has displaced individual fault as the basis of liability.
#olding companies derivatively liable for the crimes of their employees
is unfair to those companies which have made a good faith and
reasonable effort to prevent such criminality.
55
It is unnecessary to
lift the corporate veil and punish the director of the company if a
crime is committed unless the directors of the company were actually
aware of and sanction the commission of the crime. Instead we shall
think of other reforms to make the directors of a company more fearful
of the company committing a criminal offence. &ines for the directors
dis!ualification or even (ail for directors if they countenance
criminal behaviour are all possible methods to deter directors from
engaging in criminal activities. 9astly the prevalent approaches should
not be scraped as they can still play a formidable part in developing
the law as and when need arises for they are better suited to certain
types of offences.

9-
Gobert, J., ) +*gnai, 7., @Coping /ith Corporate Criminalit(0 'ome lessons from Atal(B "#$$#% Criminal
a/ Revie/, pg 9#1.
93
Gobert, J ) P*nch, +,. Rethin,ing Corporate Crime, "#$$-%, .*tter/orths0 e1is 2e1is, ondon, at pg
&9.
9:
Abid at pg 113.
99
Abid.
ESSAY WORD COUNT- 4!" #or$s.
%&'l&ograph(:
%oo)s:
Dobert @ < -unch M. =ethinking .orporate .rime G,;;0H
Cutterworths2 9exis Fexis 9ondon.
Driffin 6. .ompany 9aw 1
th
edition G,;;5H -earson 9ongman2
9ondon
#annigan C. .ompany 9aw G,;;0H 9exis Fexis2 Cutterworths
9ondon
-into ' < >vans M. .orporate .riminal 9iability G,;;0H 6weet
< Maxwell2 9ondon.
6imister '.-. < 6ullivan D.=. .riminal 9aw2 "heory < Doctrine
G,;;0H ,
nd
edition #art -ublishing2 /xford
4ells .. .orporations and .riminal =esponsibility ,
nd
edition
G,;;)H /xford $niversity -ress
Art&*les:
..= < /ng %.". *' .omparative study of the &undamental elements
of .hinese and >nglish .ompany 9aw+ G)::8H 18 International and
.omparative 9aw Iuarterly pg :3.
.larkson ..M.E *.orporate ManslaughterJ Ket more Dovernment
-roposals+ .rim. 9.=. G,;;3H 6ep at pg 577.
Dobert @. .orporate %illing at #ome and 'broad L =eflections on
the Dovernment -roposals 9.I.=. G,;;,H ))8 @an
Dobert @ < Mugnai >. *.oping with .orporate .riminality2 6ome
lessons from Italy+ G,;;,H .riminal 9aw =eview pg 5)7
Dobert @. *.orporate .riminalityJ &our models of &ault+ G)::1H
)1 9egal 6tudies pg 0:0
6lapper. *.orporate ManslaughterJ 'n >xamination of the
determinants of -rosecutorial -olicy+ G)::0H 6ocial and 9egal
6tudies pg 1,0.
Cases:
'D+s =eference GFo , of ):::H G,;;;H 0 'll >= )8,
Director of -ublic -rosecution v %ent < 6ussex .ontractors 9td
G):11H %C )15
9ennards .arrying .o 9td v 'siatic -etroleum .o 9td. G):)3H '.
7;3.
Mousell Cros v 9ondon and Forthwestern =y G):)7H , %C 805.
-earks Dunston and "ee 9td v 4ard G):;,H , %C )
-ioneer .oncrete G$%H 9td G)::3H ) C.9. 5)0 #9
= v - < / &erries GDoverH 9td. G)::)H :, .r. 'pp. =. 7,
= v %ite G)::5H , .r. 'pp = ,:3
=e 6upply of =eady Mixed .oncrete GFo ,H Director Deneral of &air
"rading v
"rotman v Forth Korkshire .ounty .ouncil G)::8H >4.' .iv ),;8
"esco 6upermarkets 9td v Fattrass G):7,H '. )30.
Statutes
D9D6 G9egislative DecreeH of @une 8 ,;;) n.,0) GDecreto
9egislativo ?Disciplina della responsbilitM amministrativa delle
persone giuridiche delle societM e delle associaAioni anche prive
di personalitM giuridica?H. -ublished in DaAAetta $fficiale n.)1;
of @une ): ,;;)
Other $o*uments:
#ealth and 6afety >xecutive 6tatistics. 'vailabe at
www.hse.gov.$kNstatistics.
$% 9aw .ommission -aper ,07 G)::5H *9egislating the .riminal
.odeJ Involuntary Manslaughter+
$% #ome /ffice G,;;;H *=eforming the 9aw of Involutary
ManslaughterJ "he Dovernment -roposals+