EHJ November 2003, pages 328-331
Should corporate bodies be "brought to justice" when tragedies take place? Despite public pressure for an offence of corporate manslaughter, Julie Barratt argues that a different approach may be required

In recent years there have been a number of tragedies involving considerable loss of life, damage to property and disruption for which no corporate body has ultimately been held to be responsible. Cases in point are the sinking of the Herald of Free Enterprise of Zeebrugge, the Thames riverboat disaster (the Marchioness), the Hillsborough football ground incident and the rail crashes at Ladbroke Grove, Southall and Potters Bar. Not one of these incidents has resulted in a successful criminal prosecution of the corporate body responsible - although in the case of the Hillsborough disaster, a civil case against South Yorkshire Police was settled on undisclosed terms, and cases against individually named police officers were won and then overturned on appeal.

The public reaction to the failure to bring criminal proceedings has been hostile. It seems inconceivable that events such as those identified can happen and that no one is held to be responsible. The public view is that there has clearly been some error or fault or the incidents would not have happened - how could the party at error not be culpable? In the case of the Herald of Free Enterprise criminal proceedings against the company were instigated but the action was dismissed as having no foundation in law - the public reaction was one of incredulity. The question asked was how could it be that such an event could happen - the circumstances being as clear cut as they were - the bow door remaining open when the ship sailed, the car deck flooding and the ship sinking - and the company owning the ship not being at fault? The media has decreed that since there is no recourse in criminal law the law is at fault, and the law is therefore an ass.

Is the criticism fair? To answer the point we must first consider the law as it currently stands. The first consideration is what are the relevant offences in criminal law? In cases in which the death of another human being has been caused the offences are that of murder and of manslaughter. The definitions of and the difference between the two offences are instructive.

The definition of murder is causing the unlawful death of another with malice aforethought - ie the perpetrator intended to cause death by his actions or intended to cause bodily harm by his action but that death was the result - for example in the case of a beating which is intended to cause injury but causes the death of the victim. Manslaughter is the causing of unlawful death where death is caused accidentally by an unlawful act, where it results from culpable negligence or where it is committed in the heat of passion. Examples are death caused by injuries sustained in a fall where the perpetrator gave the victim a gentle shove in play, but the injury was sustained in the fall - causing injury was never in the contemplation of either party, but the shove is an unlawful assault, and hence the charge must be that of manslaughter. Culpable negligence is where a reasonable person would not have considered carrying out the act, and death results. A potent example occurred at an international football match in Cardiff, where two individuals let off a distress flare in the stand, which did not rise in the air but flew directly across the pitch and killed the victim who was sitting in the opposite stand.

Manslaughter in the heat of passion is when the defendant is provoked and kills the victim in self-defence - for example a battered wife who kills her violent husband in seeking to defend herself.

There is a considerable difference in the sentencing regime attached to the two offences. While murder carries a mandatory life sentence, the sentence in the case of manslaughter is at the discretion of the judge. While the judge may still impose a life sentence in some cases the sentence can be a conditional discharge, for example some of the "battered wife" cases. The common thread between the offence of murder and that of manslaughter is that the wording of the offences is such that both appear to require to be carried out by an individual - a person.

Before considering whether a corporate body could commit murder it is necessary to be clear as to what is meant by corporate body. The definition of a corporate body is found in the case of DPP-v- Kent & Sussex Contractors [1944] 1KB146. It is a body of persons having in law an existence, rights and duties distinct from the persons who form it. It can be indicted or fined, but cannot have the necessary guilty mind or wrongful intention to commit a criminal act. It can also be criminally liable for acts of omission and for the acts of its employees committed in the course of their employment.

The first thing that is immediately obvious from the definition of corporate body is that a corporate body cannot be charged with murder, as it does not have mind to commit an unlawful act - it cannot form the necessary mens rea. (It is also worth considering how a mandatory life sentence would be imposed on a corporate body, but that is a side consideration).

Could a corporate body commit manslaughter? Apparently not, because the definition of a corporate body specifically precludes it from being able to have the necessary guilty mind to commit an unlawful act, the commission of which is essential for the offence of manslaughter to be made out.

Corporate manslaughter would require a new offence to be added to the statute books, further, the revisiting of the definition of corporate body to ensure that a corporate body could form the necessary mens rea to commit an unlawful act. What would this offence look like? A suggested definition is, "Corporate Manslaughter - unlawful homicide where death is caused by a corporate body either by accident or by an unlawful act of that body".

It is worth noting that although the creation of the potential offence was well trailed prior to the Queen's Speech in November 2002, no such offence was promised. Hence, the offence of corporate manslaughter appears to have the same status as that of date rape - every one knows what it should be but it does not appear in the statute book.

Is the offence actually needed? The absence of a promise to lay the offence before the House of Commons suggests that the Treasury Counsel has advised against it, but the pros and cons merit consideration.

Three main reasons have been offered for the creation of the offence. The first is that there is public demand to see it being brought forward. This is rarely a good reason for the creation of a new offence, and the old maxim of "hard cases make bad law" applies: it should be remembered that there was public demand for the Dangerous Dogs Act, which can hardly be described as a triumph of the legislators art, and has been widely discredited as inflexible, unnecessarily harsh and failing to achieve what it set out to achieve - the control of dogs perceived as being dangerous. An Act, or part of one, that is discredited almost as soon as it becomes operative will not instil public confidence in the law and will not assist those who have to work with it.

The second reason offered up for the creation of the offence is in order to obtain "justice" for victims of the sort of tragedies to which the offence would attach. This is a very emotive reason. It arises because there is a general misconception as to what is meant by justice. Justice is the due process of law - lawful arrest, a fair and proper trial by jury of peers and sentence according to the principles of sentencing. It is not vengeance, which more often than not is the context in which the word justice is misused. The relatives of a victim will cite their disappointment at a sentence imposed claiming that the deceased has not had "justice", when what they mean is that in their view the sentence is not sufficiently harsh to make amends for their loss. While that may be true, it is not right that offences should be added to the statute book on the basis of a fundamental misunderstanding of law.

The third reason offered up is that large corporate bodies will have insurance cover, and although incapable of being imprisoned, will be in a position to pay compensation to the injured and to the relatives of the deceased. This is true, but compensation can be paid to those parties as the result of actions brought in civil law, which is the proper forum for such claims. The advantage of a criminal conviction is that it reduces the burden on the claimants in the civil case, who can rely on the fact of conviction in the criminal court, being at a higher standard of proof, when the matter moves to the civil arena. But administrative convenience of claimants in another arena is hardly a good ground for creating a new offence.

What are the reasons against the suggested offence? The first difficulty is in determining what a corporate body "thinks".

A corporate body is not an individual whose actions can be considered as his own, it is a group of individuals acting on behalf of others - employees, shareholders etc. It has no one mind, as an individual does, its thoughts are recorded as minutes of meetings and its intentions are recorded as resolutions. It cannot act unlawfully, since an unlawful decision would be ultra vires and vulnerable to challenge. Attribution of guilty mind would have to be purely speculative - based on a "never mind what it says in the minutes, they must really have intended" type of thinking. Given that such thinking must be speculation, how can it be proved beyond reasonable doubt?

The second problem would be in determining the appropriate prosecutor. The Health and Safety Executive and local authorities would be involved if the event involved the work or the work place. Neither in reality have the experience nor the resources to carry out the investigation that would precede any proceedings. The police may have the experience of investigative practice, but most forces do not have the resources or the practical experience under the Health and Safety at Work Act 1974 (HaSaWa) to carry out the investigation.

Specialist investigators such as the Mines and Quarries Inspectorate and the Maritime Inspectorate have the technical skill and experience to undertake the investigation but not the forensic skill to bring the proceedings. Would a new body be needed, and if so what skills would it need, where would it recruit from and what would its remit be?

It would also be necessary to consider the effect that changing the definition of corporate body would have on established duties and responsibilities of corporate bodies. The present body of precedent would be lost and the duties and criminal liabilities of corporate bodies would have to be redefined. There would be a period of considerable uncertainty, not just in the law, but also in the financial sphere. Would corporate bodies still be able to obtain insurance? If not, could they still operate? What would be the effect on the City, investment, jobs and the willingness of individuals to take on top corporate jobs?

A practical consideration is what sentence would be appropriate if a corporate body were to be convicted of corporate manslaughter? If a financial penalty is not considered to be appropriate what other option is there for the sentencing judge? Should the managing director or chief executive be jailed? There was a recent suggestion that council chief executives should be jailed if a council were to breach health and safety legislation. That has receded, but the position needs to be considered. Would the whole board be jailed? What about the position of shareholders? Does the imposition of a mere financial penalty allow a corporate body to "buy its way out" of a situation in which an individual would have been imprisoned? How would this satisfy public demand for vengeance?

Given that the offence of corporate manslaughter does not exist, and despite initial enthusiasm there appears to be little prospect of its coming into being, what then should the response be to tragedies such as the ones listed at the start of this paper? The first response would be to use the legislation currently in place to better effect. The powers under HaSaWa are considerable; so is the range of offences. A corporate body can be prosecuted for its omissions, therefore use of the "failure to" offences under the Act should be considered.

It is worth considering whether sailing with bow doors open, as in the case of the Herald of Free Enterprise, could be challenged as failing to secure a safe system of work. In such cases should the maximum sentence under the Act be prescribed, or should the matter be for the discretion of the sentencing judge?

Should enforcement of HaSaWa be rationalised under one dedicated body, having the forensic investigative skills of the various bodies currently enforcing the Act, but better resourced? How many local authorities could realistically dedicate the time and resources necessary to carrying out a massive investigation, and how many have legal departments capable of commencing such an action? A dedicated body could employ dedicated specialist lawyers who have access to the Crown Prosecution Service. Should the breadth of the Act be widened to include all forms of work and all work places?

There are clearly more questions than answers. How often do we hear on the news that the XYZ agency and the police are investigating an incident, which quietly fades away with an announcement that proceedings are not being initiated on the advice of the CPS or the director of public prosecutions? A public inquiry, with parties giving evidence on the basis than no criminal liability will attach to their response, is a poor substitute for justice in its true sense. Perhaps the time has come to look again at the Health and Safety at Work Act and to make it bigger, bolder and better and its enforcement less fragmented and better resourced.

Julie Barratt is a chartered environmental health practitioner, a barrister at law and director of CIEH Wales