A better way of convicting businesses of avoidable deaths and injuries?

Cambridge Law Journal

Volumn 61, Issue 2, 2002, Pages 405-422

  Glazebrook, P R ^a  

^a JESUS COLLEGE   (United Kingdom)

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[No Author keywords available]

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EID: 85011528645     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197302001678     Document Type: Article

References (60)

1. Law Com. 237 (1996).
2. In the year 2000–2001 there were, the Health and Safety Commission estimates, 295 fatalities, an increase of 75 on the previous year. There was, however, a fall of 5.4 per cent. in the number (almost 45,000) of reported major injuries: [2001] N.L.J. 1631.
3. F. Howe & Sons Ltd. [1999] 2 All E.R. 249. So, e.g., Great Western trains was fined £1.5m in 1999 for its breaches of the Health and Safety at Work Act 1974, that were revealed by the Southall train crash. London Underground was fined £250,000 in May 1999 after a passenger died when she became trapped in the doors of a train, and £225,000 in January 2002, after a maintenance employee suffered severe electric shocks while working on the track: The Guardian, 11 January 2002.
4. The classic exposition is by Glanville Williams: “Mens Rea and Vicarious Responsibility” [1956] C.L.P. 57.
5. Things might have been rather different (and somewhat better) if English courts had followed, as the High Court of Australia did (Australian Films Ltd. (1921) 29 C.L.R. 95)
6. not rejected as anomalous, the lead given by Atkin J. in LNWR v. Moussell Bros Ltd. [1917] 2 K.B. 837, 846, that if an act of one of its agents can be attributed to a company, so can his state of mind.
7. Cf. Gateway Foodmarkets Ltd. [1997] 3 All E.R. 75 (CA). This is not, of course, to say that everyone within the organisation will be liable when no one does what the law requires, for it may not have been everyone's job to do it
8. see, e.g.,Seaboard Offshore Ltd.v. Secretary of State for Transport [1994] 2 All E.R. 99 (especially Lord Keith at 104)
9. construing Merchant Shipping Act 1988, s. 31(1) and (4) (not everyone who works on a ship is engaged in “operating” it)
10. Nelson Group Services (Maintenance) Ltd. [1998] 4 All E.R. 331
11. construing Health and Safety at Work Act 1974, s. 3(1) (not everyone who does work for an employer is engaged in conducting an undertaking”), but only that there is no practical or logical obstacle in the way of holding the organisation, however defined, liable when no one has done it.
12. The famous, and cavalier, assertion of Lord Denman C.J. in R.v. Great North of England Rly Co. (1846) 9 Q.B. 315, 325–326, that a corporation could as readily be convicted of a crime of
13. [1996] Crim. L.R. 545. 12 Home Office, Reforming the Law on Involuntary Manslaughter: The Government's Proposals (May 2000).
14. Doherty (1887) 16 Cox 306 (Stephen J.)
15. Bateman (1925) 19 C.A.R. 8 (Lord Hewitt C.J.)
16. Andrews v. DPP [1937] A.C. 576 (Lord Atkin)
17. Dunleavy [1948] I.R. 95 (Davitt J.)
18. Adomako [1994] 3 All E.R. 79 (Lord Mackay L.C.).
19. See Consultation Paper, No. 135, para. [5.77]
20. quoted in Law Com. 237, para. [7.19].
21. Law Com. No. 237, para. [8.6]. 16 Cl. 4(1) (6). 17 Note 13 above.
22. Law Com. No. 237, para. [8.6] (my italics).
23. As Professor Sullivan has observed: “While there may be much to be said for wide-ranging safety audits following such deaths, an adversarial trial is not necessarily the best forum.” (“The Attribution of Culpability to Limited Companies” [1996] C.L.J. 515, 541).
24. Wells, [1996] Crim. L.R. 545.
25. Even if, as Professor Gobert surmises, “The term ‘management’ is used to refer to the management of the enterprise's affairs, and not to the acts or failings of persons who can be classified as managers”, (2002) 118 L.Q.R. 72, 79, jurors will still need to know how to decide which failings are which.
26. Gateway Foodmarkets Ltd. [1997] 3 All E.R. 75, 84.
27. Law Com. No. 237, paras. 8.10, 8.24–8.34.
28. Notably Professor Wells, [1997] N.L.J. 1467–1468.
29. The strategies to avoid liability open to the latter have been considered by Professor Gobert, “Corporate Killing at Home and Abroad” (2002) 118 L.Q.R. 72.
30. Morby (1882) 8 Q.B.D 571
31. Curtis (1885) 15 Cox 746
32. Smith [1979] Crim. L.R. 251
33. (in tort) McWilliams v. Arrol [1962] 1 W.L.R. 295.
34. Andrews v. DPP [1937] A.C. 576.
35. Road Traffic Act 1956, s. 1.
36. Spurge [1961] 2 Q.B. 205
37. Lawrence [1982] A.C. 510.
38. Road Traffic Act 1988, s. 2A.
39. Road Traffic Act 1988, s. 3A.
40. Theft Act 1968, s. 12A.
41. Cf. C.M.V. Clarkson, “Kicking Corporate Bodies and Damning their Souls”, (1996) 59 M.L.R. 557, 572
42. B. Sullivan, “Corporate Killing–some Government Proposals” [2001] Crim. L.R. 31, 34–36.
43. Cf. Wells, C., “Corporate Manslaughter: A Cultural and Legal Form” (1995) 6 Criminal L. Forum 45, 51–52.
44. Cf. Bergman, D. “Corporate Misconduct”, [1999] N.L.J. 1849.
45. Law Com. No. 237 (1996), para. [7.27].
46. See, e.g., British Steel plc [1995] I.C.R. 586, 594 (Steyn L.J.).
47. British Airways Board v. Taylor [1977] Crim. L.R. 372 (HL).
48. cf. Wells, [1996] Crim. L.R. 545, 549–550.
49. Criminal Law: The General Part (2nd. ed.) (London 1963), p. 865.
50. V.S. Khanna, “Corporate Criminal Liability: What Purpose Does it Serve?” (1996) 109 Harv. L.R. 1477 provides a more recent (and thoroughgoing and persuasive) critique.
51. Boal (1992) 95 C.A.R. 272.
52. Cf. Interpretation Act 1978, s. 5, Schedule 1.
53. See, e.g., D. Bergman, The Perfect Crime?–How Companies Can Get Away with Manslaughter in the Workplace (Sheffield 1994), passim, but especially pp. 97–101
54. G. Slapper, Blood in the Bank: Social and Legal Aspects of Death at Work (Aldershot 1999), especially pp. 35–36, 72, 118–120, 131–132.
55. Offences against the Person Act 1861, s. 20.
56. R. Clifton, “Boardroom GBH” [2000] N.L.J. 104.
57. As Professor Sullivan has rightly insisted (“Expressing Corporate Guilt” (1995) 15 O.J.L.S. 273, 283, 285–286
58. though he nonetheless somehow managed to give (lukewarm) support to the “corporate killing” proposal (15 O.J.L.S., 291).
59. For the contrary view see, e.g., E. Colvin, “Corporate Personality and Criminal Liability” (1995) 6 Criminal L. Forum 1
60. C. Wells, Corporations and Criminal Responsibility (2nd ed.) (Oxford 2000).