Corporate Manslaughter Issues - Essay Example

Corporate Manslaughter Corporate manslaughter is a term in English Law. English Law describes the law which for the time being is used in England andWales. Corporate manslaughter refers to an act of homicide committed by a company. The Court of Appeal in one of the cases of the Herald of Free Enterprise disaster which took place in March 1987 confirmed that a company can in principle commit manslaughter. (Corporate Manslaughter, 2006) A company can be held responsible for committing such a crime if there is a work related death in the company. The felony is essentially linked to whether a director or senior manager, in other words a "controlling mind or will" of the company is guilty of manslaughter. If the director or senior manager is found guilty then the company is also found guilty. But if the director or senior manager is found to be innocent then even the company is found to be innocent. (Bergman, 2003) Under the English law the two general homicide offences are murder and manslaughter. Involuntary manslaughter is when someone kills without actually intending to cause death or serious hurt but was blameworthy in some way. There are multiple categories of manslaughter. There is also a concept of gross negligence manslaughter. According to the Crown Prosecution Service there are various factors to be taken into consideration before a company can be prosecuted for gross negligence manslaughter. The first factor to be considered is that there was a duty of care owed by the accused to the deceased. The second factor to be proved is that there was a breach of duty of care by the charged. The third factor to be proved is that the death of the deceased was caused by the breach of duty of care by the accused. The fourth important factor to be considered is that the breach of duty of care by the accused was big enough to be characterised as gross negligence and therefore an offense. Under the current law it is mandatory to identify a specific individual as a controlling mind who is personally guilty of manslaughter. It is extremely difficult under the present law to add up the negligence of a number of individuals to project the company as grossly careless. (Randles, 2005) The current law on corporate manslaughter requires that the director or the senior manager is prosecuted before the company. This is the biggest stumbling block in trying to prove corporate manslaughter. In spite of very serious failures by the directors and senior managers of large companies it has been very difficult to prosecute them. One of the reasons is that large companies frequently assign safety decisions to junior managers or to outside agencies. (Bergman, 2003) In the past some large companies have been charged for manslaughter but unfortunately all the cases have failed. The Herald of Free enterprise sank off the coast of Zeeburgge in March 1987 shortly after it had left the port with its bow doors open. The trail collapsed during its initial stages. The judge ruled that there was no sufficient evidence of negligence on the part of the directors or senior managers which possibly could have resulted in the disaster in which 193 passengers were killed. (Bergman, 2003) The Southall rail crash occurred in September 1997 on the Great Western Railway Line at Southall. Six people were killed and over a 150 people were injured. The crash occurred when 1032 Great Western Intercity from Swansea to London Paddington which was operating with a defective Automatic Warning System indicator went through a red signal and collided with a goods train (Southall Rail Crash, 2006). The company was exonerated of corporate manslaughter after Scott Baker J ruled that the liability of manslaughter can only be imposed on the company on the principle of identification. (Simester and Sullivan, 2002) The Crown Prosecution Service tried to impeach the company without prosecuting any individual director or manager. But due to the court ruling the case could not go ahead on this basis. The company was fined 1.5 million pounds after it pleaded guilty to health and safety offences (Bergman, 2003). The Alpha Piper was an oil production platform which was being operated by Occidental Petroleum Limited. It was responsible for approximately ten percent of the oil and gas production in the North Sea. An explosion resulted in the fire and destroyed the platform on 6th July 1988.Out of 229 people on board only 62 people survived on that fateful day. The Cullen enquiry was setup in 1988 to find out the reasons behind the tragedy. In 1990 the committee concluded that the explosion took place due to condensate leak which happened due to simultaneous maintenance work on a pump and the related safety valve. Almost all off shore workers in the North Sea suspected the earnestness of the industry regarding some of their responses to the Cullen Report. The recommendation of the Cullen report to have full organised worker representation has hardly been taken up by the oil companies. (Piper Alpha, 2006) Lord Cullen did not hold accountable any individual but after a civil action over insurance payments two workers who died in the disaster were held responsible. This has been widely contested by the relatives of the men and the television documentary investigations. (On this day, 1988) In England and Scotland it has been difficult to pin charges of corporate manslaughter (England and Wales) and corporate homicide (Scotland) on companies. In England and Wales only five companies, which are all small companies have been convicted of manslaughter. In Scotland there has been no company that has been charged with corporate homicide. The only way the companies can be prosecuted for fatal accidents is by fining them under health and safety rules. (Shepherd and Wedderburn, 2005) The sentences open to the courts are unlimited fines and jail sentences. But in reality most of the sentences are suspended and the fines are reasonably small. (Bergman, 2003) The current law allows companies to get away with out having to face a jury. The criminal justice system is unable to take legal action against the larger and disorganised companies. (Corporate Killing, 1997) The terrible disasters of Zeerbugge, Southall, Hatfield and Piper Alpha have brought immense pressure to invoke criminal law to book the companies at fault. (Sweet and Maxwell, 2003) Sarah Wilson, Managing Director of Manifest is unsure if the manslaughter bill will be successful in averting disasters simialr to Alpha Piper or Hatfield Rail Crash.(Davies, 2005) The Sago Mine disaster took place on the 2nd of January 2006 in Tallmansville,West Virginia, USA.Out of the thirteen miners trapped for two days only one miner managed to survive.It is the worst mining disasater in the US since 2001.( Sago Mine Disaster, 2006) The disaster tripled the national average in the US. ( Milchen , 2006) In the last one year the Sago mine received 205 citations from the government agency that regulates mines for safety violations. Citations passed on by the Mine Safety and Health Administration ( MSHA) were for breaking ventilation rules. The ventilation rules are specifically formulated for preventing explosion similar to the one that took place on 2nd January 2006 in the mine. (Milchen, 2006) Thus only when there are changes in the cost benefit analysis employed by the corporate executives on workplace security will we be able to successfully prevent any future disasters similar to Sago.( Milchen , 2006) Rather than abide by the law the managers and the owners of the mine continued to pay the fines which were issued by MSHA. They did so because it was economically viable to do so.The maximum fine imposed for repeated and serious offences was a meagre $878. While the total fines for the 205 violations amounted to $ 25,000. Thus it is apparent that the management chose to overlook safety rules in order to save economic costs. ( Milchen , 2006) In most corporations the decision of whether or not the safety issues will be resolved depends on the economic viability rather than on the safety of the workers. ( Milchen, 2006) The US government responded quickly to the alram bells rung by the media and wealthy concerns over the economic loss caused by fraud and accounting loss at Enron. It is hoped that the outcry over the Sago disaster will provide the necessary push to save the lives of other Americans and will prevent such occurances to becoming commonplace.( Milchen, 2006) Supporters of corporate manslaughter law believe that it is imperative to have a legislation in place.Some of the reasons cited by them in the favour of the law are that even after several accidents in the workplace large companies have not been convicted.Prosecutions have failed because the law is inadequate. (Randles, 2005) Further legislation will be able to address the public perception that the current law is mild on the corporates charged with manslaughter. The law will improve the safety standards of the companies. It will thus benefit the workers and the public by providing them better protection. Apart from the practical issues there are several moral issues that this law will be able to address.One of them is that people are entitled to seek compensation on behalf of the relatives who have lost their lives at the workplace.This can only be done if the companies are made accountable under the law of corporate manslaughter as well as under the health and safety legislation. ( Randles, 2005) But there are numerous critics who believe that a law on corporate manslaughter is not required.They are of the opinion that Britian has one of the best safety records in the world but the poorest rehabilitation rates.They feel that it would be better to spend time and resources on improving the rehabilitation of those hurt and having superior no fault compensation The law according to the critics will be inefficient unless it aims at the activities of the individuals.Until and unless the business leaders of the organisations can be convicted the proposed law will be unable to nail the guilty.( Randles , 2005) The authorities of the bill have done very little regarding the implementation of fines or sanctions to the regulatory framework already present.It is becoming increasingly difficult to insure risky business activities like demolition due to over regulation and this in turn has pushed up the costs of such activities.( Randles , 2005) There is currently hardly any agreement between industry, the unions and the interested pressure groups regarding the structure of the law and whether or not the proposed legisation should be introduced at all.( Randles, 2005) In May 2003 the government of United Kingdom renewed its long term promise to legislate on corporate manslaughter. The government was of the opinion that the law needed more teeth so that it could actually bite on large corporations charged with manslaughter. (Government to introduce corporate killing law, n.d.) The UK government in an attempt to reform the current law on corporate manslaughter published the draft of the corporate manslaughter bill in March 2005.The bill was included in the Queen's speech soon after the general elections. It is hoped that the offence will become a law by the year 2006. (Berry, 2006) The Home Affairs and Work and Pensions Committees after reviewing released their final report in December 2005.( Corporate Manslaughter: The Government's Draft Bill for Reform. n.d.) The new draft bill is a mere shadow of the previous bill that was proposed earlier.But there is a ray of hope that for the first time there is actually a chance to prosecute large companies on the grounds of corporate manslaughter.( Monbiot, 2005) Some of the additional factors to be considered by the jury in cases of corporate manslaughter have been mentioned in the draft bill. One of the factors to be considered is whether or not the senior manager or director through his actions was trying to enhance the profits of the company by deliberately trying to reduce costs by being thrifty. Numerous critics of the bill fear that these extra factors will make it difficult to prosecute the companies.(Randles,2005) The government is keen to make the proposed manslaughter bill into a law as early as possible. With the bill becoming a law the government will fulfill its long standing promise to the people. It will also fulfill a part of the Warwick agreement between the government and the trade unions.( Personnel Today, 2006) As per the government because of the complexity of the law involved the progress has been slow in bringing the bill forward. One of the other reasons for its delay is that there has been very acute lobbying by the victims groups, the trade unions, the various business organisations and last but not the least by the CBI. It is widely believed that the bill will undergo several rectifications after the examination by the select commissions on home affairs and work and pensions. ( Personnel Today, 2006) Most of the employers have extended their support for the bill. The CBI had lobbied very hard to exempt the individual directors and the senior managers from being convicted.The CBI is very happy that its recommendations have been incorporated in the bill.The select committee has suggested some significant changes so that it would be easy to prosecute the erring organisations.One of the suggestions is to modify the bill so as to make conviction easier and the other is to broaden the range of punishments. ( Personnel Today, 2006) The bill in all probability is expected to be improved on the basis of the suggestions from the Hampton Review to reduce bureaucratic procedure for businesses and the Health and Safety Executive (HSE) review on ordinance and enforcement The improvement of the bill has been suggested so that it becomes more effective. It is expected that the modification will be done in two stages. After the first amendment it is hoped that further corrections will be done regarding sentencing, penalties and sanctions against individuals. Apart from amending the senior manager test even the reduction of Crown immunity has been proposed. With the reduction of the Crown immunity it is hoped that both the public and the private sectors will have a level playing field. With the help of these amendments the noose around the organisations convicted of corporate manslaughter will tighten. ( Personnel Today, 2006) Thus the amended bill will help to ensure that the companies toe the line regarding health and safety regulations and do not risk the lives of their workforce by cutting corners. Bibliography 1. Corporate Manslaughter 2006, Wikipedia, viewed 1st April 2006, < http://en.wikipedia.org/wiki/Corporate_manslaughter >. 2. Bergman,David ( Centre for Corporate Accountability)2003, Corporate Manslaughter,media release,9th July,BBC News UK,viewed 1st April 2006, < http://news.bbc.co.uk/1/hi/uk/3053239.stm >. 3. Randles,Tim 2005, Corporate Manslaughter: the issues, media release, 16th May, BBC New UK version, viewed 1st April 2006,< http://news.bbc.co.uk/1/hi/business/4537053.stm >. 4. Southall Rail Crash 2006, Wikipedia, viewed 2nd April 2006, < http://en.wikipedia.org/wiki/Southall_rail_crash >. 5. Simester, Sullivan 2002,The basis of liability for corporate manslaughter, 14th October,Hart Publishing,Oxford,viewed 2nd April 2006,< http://www.hartpub.co.uk/updates/crimlaw/crimlaw_basis.htm >. 6. Piper Alpha 2006, Wikipedia,viewed 2nd April 2006,< http://en.wikipedia.org/wiki/Piper_Alpha >. 7. On this day 1988,BBC On this day,media release,6th July, BBC News,viewed 3rd April 2006,< http://news.bbc.co.uk/onthisday/hi/dates/stories/july/6/newsid_3017000/3017294.stm >. 8. Shepherd,Wedderburn 2005,Time for the Kill Bill, 2nd February,Hireos Gamos,Worldwide Legal Directories,viewed 2nd April 2006,< http://www.hg.org/articles/article_520.html >. 9. Corporate Killing 1997,Freedom to Care, viewed 2nd April 2006< http://www.freedomtocare.org/page76.htm >. 10. Sweet,Maxwell 2003, First Guide to Corporate Criminal Liability,3rd November, viewed 2nd April 2006,< http://www.sweetandmaxwell.co.uk/pressroom/2003/03Nov03.html >. 11. Davies,Chris 2005,Taking Responsibility,media release,9th June,Manifest Managing Director talks to Chris Davies about governance issues and the manslaughter bill,viewed on 4th April 2006< http://www.manifest.co.uk/news/2005/20050609Profpens.htm >. 12. Sago Mine Disaster 2006,Wikipedia,viewed 1st April 2006,< http://en.wikipedia.org/wiki/2006_Sago_Mine_disaster >. 13. Milchen,Jeff 2006, The lessons of Sago,media release, 6th Jan, viewed 5th April 2006< http://www.tompaine.com/articles/2006/01/06/the_lesson_of_sago.php >. 14. Government to introduce corporate killing law n.d., European industrial relations on-line, viewed 2nd April, < http://www.eiro.eurofound.eu.int/print/2003/06/feature/uk0306108f.html >. 15. Berry,C 2006, Corporate manslaughter,media release,January, Edwin Coe solicitors, Lincoln's Inn, London, viewed 2nd April 2006< http://www.ncbi.nlm.nih.gov/entrez/query.fcgicmd=Retrieve&db=pubmed&dopt=Abstract&list_uids=16454457&query_hl=2&itool=pubmed_docsum >. 16. Corporate Manslaughter: The Government's Draft Bill for Reform n.d., viewed 4th April 2006,< http://www.homeoffice.gov.uk/documents/2005-corporate-manslaughter/ >. 17. Monbiot,George 2005, The business of killing,media release,29th March,published in the Guardian,viewed 1st April,< http://www.monbiot.com/archives/2005/03/29/the-business-of-killing/ >. 18. Corporate Manslaughter to get teeth 2006, Personnel Today,viewed 9th April 2006,< http://www.personneltoday.com/Articles/2006/03/28/34637/Corporate+manslaughter+Bill+to+get+teeth.htm#ArticleBody >. Read More