Elements of Gross Negligence Manslaughter - Case Study Example

Corporate Manslaughter Question One – Elements of Gross Negligence Manslaughter Gross negligence manslaughter is one form of manslaughter. However, it differs significantly from unlawful act manslaughter. An instance of gross negligence manslaughter takes place, when the defendant, who owes a duty of care to the victim, behaves in a highly negligent manner that leads to the death of the victim (Loveless, 2014, p. 299). Gross negligence manslaughter can result from an omission or an act that need not be unlawful. Duty of Care The offence of gross negligence manslaughter came to fore, due to the case of Adomako. In that case, the defendant was an anæsthetist who attended in his professional capacity, in an ocular surgery. The patient lost his life, due to the detachment of a tube that was supplying him with oxygen, during the surgery. The defendant failed to notice and react to the alarm sounded by the blood pressure monitoring device (Monaghan, 2014, p. 143). The defendant was convicted of gross negligence manslaughter, which he appealed. Their Lordships dismissed the appeal and significantly affirmed that gross negligence was a category of involuntary manslaughter. During their ruling, the Law Lords stipulated the necessary elements for a conviction of gross negligence manslaughter. These were; first, the defendant owed a duty of care to the patient. Second, the defendant had breached that duty of care. Third, that breach had resulted in the death of the patient. Fourth, the breach, in question, was grossly negligent and as a result a crime (Monaghan, 2014, p. 143). Nevertheless, the importance of the ruling in Donoghue v Stevenson lies in the fact that prior to this decision, liability in negligence was limited by the finding of a duty of care, chiefly in instances wherein there was a pre-existing association between the parties. In that case, the first general rule for determining duty of care was provided. Essentially, that judgment required the exercise of reasonable care to avoid acts and omissions that could reasonably be expected to cause injury to a neighbour (Bermingham & Brennan, 2014, p. 43). The presence of a duty of care is to be determined by the court. Gross negligence manslaughter is a crime that can be committed by omission. At this juncture, it is important to realise that a duty to act is a rarity in the criminal law. For instance, in Gemma Evans, the Court of Appeal ruled that determining the existence of a duty was a matter of law. The lower court judge had erred in asking the jury to decide upon this matter (Loveless, 2014, p. 301). Breach of Duty The courts have subscribed to the view that gross negligence manslaughter has to be confined to narrow and strict boundaries. For instance, in Adomako the court declared the presence of gross negligence manslaughter, as the defendant’s conduct had resulted in the obvious and serious risk of death. As such, it was to be determined whether the conduct of the defendant had been so bad that it constituted a criminal act or omission (Loveless, 2014, p. 304). Causation The nature of the negligence involved in gross negligence manslaughter was described by Wolf LJ, in R v HM Coroner for Inner London, ex p Douglas-Williams. His Lordship declared that the negligence should have contributed to the death, in a manner that was more than minimal, negligible or trivial (R v HM Coroner for Inner London, ex p Douglas-Williams , 1999 ). Grossness of the Breach With regard to the degree of grossness of the breach, the jury has to arrive at a decision. It is the task of the jury to determine whether the defendant’s conduct was sufficiently inferior to be deemed as a gross breach. The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) describes gross breach as conduct that falls far below the behaviour that can be reasonably expected under the circumstances (Corporate Manslaughter and Corporate Homicide Act (c. 19), 2007). As such, the presence of the above mentioned elements will be ascertained by the courts, while determining the occurrence of the crime of gross negligence manslaughter. Question Two – Imposing Liability for Gross Negligence Manslaughter on Corporations The common law had been notorious in providing large corporations, guilty of manslaughter, several options for evading their responsibility. Thus, in R v P&O European Ferries (Dover) Ltd, the presiding judge directed the jury that the evidence was insufficient to convict the majority of defendants and the company of manslaughter. Common law demanded that one of the personal defendants, who could be identified with the company, had to be personally guilty of manslaughter. In the absence of such a finding, the company could not be convicted of manslaughter (Barrett, 2000, p. 229). This inequitable ruling was upheld by the Court of Appeal, which held that a corporate entity could not be convicted of manslaughter, until and unless an identifiable individual could be convicted for the same crime (Walsh, 2014). Subsequently, the enactment of the Corporate Manslaughter and Corporate Homicide Act 2007 created the new offence of corporate manslaughter. Section 8 of this Act required the jury to decide whether there had been a gross breach of the relevant duty of care owed by an organisation to a person. This was a radical departure from the erstwhile common law position of holding a corporation guilty of manslaughter, only when some person who could be identified with that corporation had been guilty of that crime (Corporate Manslaughter and Corporate Homicide Act (c. 19), 2007). In order to combat the notion that a company could not be rendered culpable of wrongdoings that had taken place in its internal operations, the identification principle was formulated. The identification principle concluded that a company could be made criminally liable, only when it could be ascribed the culpability of a human being. From the rational perspective, it could be contended that culpability would, in general, be limited to the specific employees who carried out the policies and practices of the organisation. However, this point of view was too wide for ascribing liability (Tariq, 2014, p. 17). Thereafter, the identification principle clarified that the human entity, in question, was to be the directing mind and will or the alter ego of the company. By implication, the CMCHA does not oblige the prosecutor to identify a culpable individual for the offence of manslaughter, in order to prosecute the company for manslaughter. As such, secondary liability was circumvented, principally due to the provisions of Section 16(1) of this Act. This Section provides that an individual cannot be guilty of aiding, abetting, counselling, or procuring the offence (Tariq, 2014, p. 18). Moreover, in Bolton (Engineering) v TJ Graham and Sons Ltd, it was opined that the alter ego of a company was subject to change. In addition, it was specified that the alter ego of a company had to be a person who enjoyed a sufficiently senior position in the company, or whose status was adequate for being regarded as an alter ego (Tariq, 2014, p. 18). Furthermore, some scholars have supported the dichotomy prevailing betwixt the directing mind and will, and the employee. The contention is that in the larger corporations the directing mind provides corporate policy. When it comes to the implementation of corporate powers emanating from the directing mind, the middle management and the workforce is likely to confuse, misinterpret, or distort the same (Tariq, 2014, p. 19). Consequently, an employee could engage in wrongdoing that could be correlated to the instructions of that individual’s superior; however, it may transpire that there had been no binding or direct authorisation from the directing mind. Question Three - The Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 The Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 had been enacted with a view to rescind the inequitable doctrine of identification principle. The CMCHA adopts a corporate approach to liability and discards the individualistic notion of liability that had been promoted by the identification doctrine. The purpose of this Act had been to target corporations and hold them solely responsible for the offence of manslaughter. As a consequence, the actus reus would have been solely attributable to the corporation (Tariq, 2014, p. 18). At present, corporate entities, whether it be in the public sector or the private sector, have been rendered accountable. Therefore, these corporate entities owe the relevant duty of care. From one perspective, the objective of the CMCHA has been the widening of its ambit to organisations. In this context, some scholars have contended that the aim of the CMCHA had been to penalise organisations that disregarded safety in their relentless pursuit of profits. When it came to the apprehending of corporate killers, it had to be admitted that several entities had been excluded from the purview of the CMCHA. Thus, unincorporated associations, crown bodies, and sole corporations had been omitted (Tariq, 2014, p. 19). Section 1 of the CMCHA contains the offence of corporate manslaughter. A cursory glance tends to portray this Act as being muddled and ambiguous in several of its sections and subsidiary sections. This depicts the intricacy of the subject matter, and the difficulty involved in creating the offence of manslaughter. Thus, an organisation would be deemed liable on conviction on indictment to be monetarily penalised, whenever its activities are conducted by its senior management in a manner that results in the death of the victim. In addition, the conduct of the activities has to be tantamount to a gross breach of a related duty of care owed to the deceased by the organisation (Tariq, 2014, p. 19). As such, the organisation and management of the corporation’s activities should have constituted a major factor of the gross breach of duty owed to the deceased by that corporation. Moreover, gross breach can be described as conduct that is inferior to the conduct that can be reasonably anticipated of the organisation, under the circumstances (Tariq, 2014, p. 19). In addition, a perusal of the CMCHA could lead one to conclude that not all types of death, due to corporate negligence, would be classified under the gross breach category, which would invoke the provisions of this Act. At this juncture, several queries arise, such as the nature of senior management, and whether gross breach and causation are so narrow that it becomes difficult to achieve corporate prosecutions (Tariq, 2014, p. 19). The importance accorded to the function of senior management, has been viewed by some scholars, as permitting the focus to be transferred from systematic fault to individual fault. Moreover, this term, role of senior management has not been defined accurately, which compels prosecutors to undertake the erroneous task of determining whether the senior management had enacted an important role, with respect to the management of their corporation’s activities. The employment of the term, role of senior management implies the application of an aggregation principle. As a consequence, several individuals could be involved. This would render the task of fulfilling the elements of the test simpler (Tariq, 2014, p. 19). Thus, the duty of care involved, would remain in force, even when the conduct involved was unlawful or if the danger of harm were to be conceded. References Adomako (1995) 1 AC 171. Barrett, B., 2000. Occupational Health & Safety Law Cases & Materials. 2 ed. London, UK: Cavendish Publishing. Bermingham, V. & Brennan, C., 2014. Tort Law Directions. 3 ed. Oxford, UK: Oxford University Press. Bolton (Engineering) v TJ Graham and Sons Ltd (1956) 3 All ER 624. Corporate Manslaughter and Corporate Homicide Act (c. 19), 2007. London, UK: Her Majestys Stationery Office. Donoghue v Stevenson (1932) AC 562. Gemma Evans (2009) EWCA Crim 650. Loveless, J., 2014. Complete Criminal Law: Text, Cases, and Materials. 3 ed. Oxford, UK: Oxford University Press. Monaghan, N., 2014. Criminal Law Directions. 2 ed. Oxford, UK: Oxford University Press. R v HM Coroner for Inner London, ex p Douglas-Williams (1999 ) 1 All ER 344. R v P&O European Ferries (Dover) Ltd (1991) 93 Cr App Rep 72. Tariq, M. S., 2014. A 2013 look at the corporate killer. Company Lawyer, 35(1), pp. 17-20. Walsh, M. A., 2014. Corporate Liability or a Lack of Accountability?. [online] Available at: [Accessed 13 December 2014]. Read More