Corporate manslaughter
Corporate manslaughter is a crime in several jurisdictions, including England and Wales and Hong Kong. It enables a corporation to be punished and censured for culpable conduct that leads to a person's death. This extends beyond any compensation that might be awarded in civil litigation or any criminal prosecution of an individual. The Corporate Manslaughter and [Corporate Homicide Act 2007] came into effect in the UK on 6 April 2008.
Theory
Clarkson identifies six theories of corporate manslaughter:- Identification doctrine;
- Aggregation doctrine;
- Reactive corporate fault;
- Vicarious liability;
- Management failure model; and
- Corporate mens rea.
Identification doctrine
This approach holds that the offence of corporate manslaughter is made out when an individual commits all the elements of the offence of manslaughter and that person is sufficiently senior to be seen as the controlling mind of the corporation. Prior to the Corporate Manslaughter and Corporate Homicide Act 2007, this was how the law applied in England and Wales.Aggregation doctrine
This approach, known in the U.S. as the collective 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 single controlling mind. This approach is used in the U.S. but has been rejected in England and Wales.Reactive corporate fault
This idea was proposed by Fisse and Braithwaite. They proposed that where an individual had committed the actus 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.Vicarious liability
The broader principle of vicarious liability 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 benefiting the corporation, his criminality can be imputed to the company. The principle has sometimes been used in England and Wales for strict liability offences concerning regulatory matters, but the exact law is unclear.Management failure model
This is the approach to be taken under the Corporate 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.Corporate ''mens rea''
A further approach is to accept the legal fiction of corporate personality and to extend it to the possibility of a corporate mens rea, to be found in corporate practices and policies. This approach has been widely advocated in the U.S., as the corporate ethos standard and introduced in Australia in 1995.Support and criticism of the concept
Clarkson identifies four valuable characteristics of criminal prosecution:- Stronger procedural protection of corporations, such as proof beyond reasonable doubt;
- More powerful enforcement agencies, such as the Health and Safety Executive in the UK;
- The stigma and censure that follow from conviction; and
- The symbolic role of criminal law is that "sends a message" to society.
Again, such arguments contend that "over-deterrence" may divert resources from other socially beneficial activities.
A further strand of criticism holds that only individuals can commit crimes. Further, it is individuals who feel the threat of deterrence. In England in 1994, OLL Ltd. were convicted of corporate manslaughter over the Lyme Bay kayaking tragedy and fined £60,000, while Peter Kite, one of the company's directors, was sentenced to three years' imprisonment, arguably a greater influence on the conduct of company managers.
Further, a corporation may simply be a "veil" for an individual's activities, easily liquidated and with no reputation to protect. Again, it is argued that company fines ultimately punish shareholders, customers and employees in general, rather than culpable managers.
By jurisdiction
United Kingdom
Australia
Several states and territories recognise the crime of Industrial manslaughter. The Australian Capital Territory has provisions for industrial manslaughter introduced in 2004. In 2017, industrial manslaughter became an offence in Queensland in their workplace health and safety legislation, the Work Health and Safety Act 2011. Despite the offence existing in four jurisdictions as of 2020, there have been no successful prosecutions.In New South Wales on 16 September 2024, the crime of Industrial Manslaughter came into effect following the passage of the Work Health and Safety Amendment Act 2024 earlier that year. Provisions for industrial manslaughter were demanded by the trade union movement after the adolescent building industry worker Joel Exter fell off a domestic roof and died. Joel's union, the CFMEU, conducted a significant campaign around his death. The Labor Party government of NSW under Bob Carr denied that industrial manslaughter provisions were necessary as Workcover 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 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.