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Corporate manslaughter is acrime in severaljurisdictions, includingEngland and Wales andHong Kong.[1] It enables acorporation to be punished and censured for culpable conduct that leads to a person's death. This extends beyond any compensation that might be awarded incivil litigation or any criminal prosecution of an individual (including an employee or contractor). TheCorporate Manslaughter and Corporate Homicide Act 2007 came into effect in the UK on 6 April 2008.
Clarkson identifies six theories of corporate manslaughter:[2]
This approach holds that the offence of corporate manslaughter is made out when an individual commits all the elements of the offence ofmanslaughter and that person is sufficiently senior to be seen as thecontrolling mind of the corporation. Prior to the Corporate Manslaughter and Corporate Homicide Act 2007, this is how the law applied in England and Wales.[2]
This approach, known in theU.S. as thecollective knowledge doctrine, aggregates all the acts and mental elements of various company employees and finds the offence if all the elements of manslaughter are made out, though not necessarily within a singlecontrolling mind. This approach is used in the U.S. but has been rejected in England and Wales.[2]
This idea was proposed by Fisse and Braithwaite.[3] They proposed that where an individual had committed theactus reus of manslaughter, a court should have the power to order the employing corporation to institute measures to prevent further recurrence and should face criminal prosecution should they fail to do so.[2]
The broader principle ofvicarious liability (respondeat superior in the U.S.) is often invoked to establish corporate manslaughter. In the U.S., where an employee commits a crime within the sphere of his employment and with the intention of benefitting the corporation, his criminality can be imputed to the company. The principle has sometimes been used in England and Wales forstrict liability offences concerning regulatory matters but the exact law is unclear.[2]
This is the approach to be taken under theCorporate Manslaughter and Corporate Homicide Act 2007 which came into force in the UK in April 2008. Where a corporation's activities cause a person's death and the failure was because of a breach that falls far below what can reasonably be expected of the organisation in the circumstances, the offence is made out.[2]
A further approach is to accept thelegal fiction ofcorporate personality and to extend it to the possibility of a corporatemens rea, to be found in corporate practices and policies.[2] This approach has been widely advocated in the U.S., as thecorporate ethos standard[4] and introduced inAustralia in 1995.[5]
Clarkson identifies four valuable characteristics of criminal prosecution:[2]
However, the existence of such a crime has been criticised, especially from the point of view oflaw and economics which argues that civildamages are a more appropriate means of compensation, recognition of the loss suffered and deterrence.[2] Such arguments emphasise that, because the civil courts award compensation commensurate with the damage done, they apply the appropriate level of deterrence.[6]
... pursuing corporate criminal liability results in society bearing the higher sanctioning costs of stigma penalties and the increased costs of deterring corporate misbehaviour created by the procedural protections of criminal law.
— Khanna (1996)p.1533
Again, such arguments contend that "over-deterrence" may divert resources from other socially beneficial activities.[7]
... when the penalty exceeds the social harm, the problem of socially excessive product prices and litigation costs again arises.
— Fischel & Sykes (1996),p.325
A further strand of criticism holds that only individuals can commit crimes.[8] Further, it is individuals who feel the threat of deterrence. InEngland in 1994, OLL Ltd. were convicted of corporate manslaughter over theLyme Bay kayaking tragedy andfined £60,000 while Peter Kite, one of the company'sdirectors, wassentenced to three years'imprisonment, arguably a greater influence on the conduct of company managers.[2][9] Further, a corporation may simply be a "veil" for an individual's activities, easilyliquidated and with no reputation to protect.[2] Again it is argued, company fines ultimately punishshareholders,customers andemployees in general, rather than culpable managers.[2]
Several states and territories recognise the crime ofIndustrial manslaughter. TheAustralian Capital Territory has provisions for industrial manslaughter introduced in 2004.[10] In 2017, industrial manslaughter became an offence in Queensland in their workplace health and safety legislation, theWork Health and Safety Act 2011. Despite the offence existing in four jurisdictions as of 2020, there have been no successful prosecutions.
InNew South Wales on 16 September 2024, the crime of Industrial Manslaughter came into effect following the passage of the Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 earlier that year.[11] Provisions for industrial manslaughter were demanded by the trade union movement after the adolescent building industry workerJoel Exter fell off a domestic roof and died. Joel's union, theCFMEU conducted a significant campaign around his death. TheLabor Party (ALP) government of NSW underBob Carr denied that industrial manslaughter provisions were necessary asWorkcover already has provisions for dealing with industrial death. The trade union movement argued that the manslaughter provisions of Workcover were ineffective, as reflected by a lack of prosecution of employers for workplace death.
The Victorian Parliament passed the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 on 26 November 2019 and is expected to come into effect on a day to be proclaimed or, at the latest, 1 July 2020.[12]
InCanada, Bill C-45 was enacted as a response to theWestray Mine explosion that killed twenty-six miners in 1992. The Bill added a new section tothe CanadianCriminal Code ("217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.") and adds sections 22.1 and 22.2 to theCriminal Code to impose criminal liability on organizations for negligence (s. 22.1) and other offences (s. 22.2).[13]
In 2012, proposals were put forward in theNew Zealand Parliament for a corporate manslaughter statute, in the wake of the CTV building collapse during the2011 Canterbury earthquake,[14] and thePike River Mine disaster.[15] As of March 2015Labour Party leaderAndrew Little had aprivate member's bill in the ballot that would, if passed, add a charge of corporate manslaughter to theCrimes Act 1961.[16]
In the U.S. there is currently no corporate manslaughter law. However, there have been numerous calls in the literature for a "corporate death penalty".[17][18][19][20] A 2019 study argued that industries that kill more people each year than they employ should have an industry-wide corporate death penalty.[21]
{{cite journal}}: CS1 maint: multiple names: authors list (link){{cite book}}: CS1 maint: multiple names: authors list (link)Types ofcrime | ||
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Note: Crimes vary byjurisdiction. Not all types are listed here. | ||
| Classes | ||
| Against the person |
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| Againstproperty | ||
| Against the public | ||
| Against thestate | ||
| Againstjustice | ||
| Against animals | ||
| Sexual offenses | ||
| Inchoate offenses | ||
