Criminal 2 - Homicide - Corporate Killings

Corporate Identity - academic commentary quote

“The common law has always had difficulty accommodating the view that a non-human entity can commit an offence” - Conor Hanly, An Introduction to Irish Criminal Law

Key Corporate Identity case

Saloman v Saloman & Co. 1897

What happened in Saloman v Saloman 1897

• Saloman = boot maker

• Incorporated his business into a co. (Saloman & Co)

• Held most of the shares & remaining ones held by family members

• He also became a secured creditor

• Issue: Was Co. just a sham/agent of Saloman, making him personally liable for its debts?

• Held: Co = separate legal person (SLP), distinct from Saloman

  • Saloman = not personally liable for company’s debts

  • *est. Doctrine of separate legal personality

What is the Doctrine of Separate legal personality?

=once properly incorporated, company had its own legal identity separate from its shareholders & directors (*even if one person owns almost all shares)

=>This intro. idea of corporate veil & foundation of modern company law

What is a corporate veil?

‘Veil’ protects owners & directors from personal liability for company debts & actions

What did the 2001 Company Law Enforcement Act establish?

Office of Director of Corporate Enforcement

What powers does the Office of Director of Corporate Enforcement hold?

Specific power to enforce penal elements of the Companies Act -but only for specific instances - not a general basis of criminal liability e.g. manslaughter

Development of Corporate Liability

Aroused interest following several disasters, which lead to a significant loss of life, particularly in the UK, from 80s onwards

What disasters sparked interest in corporate liability?

• King's Cross fire 1987 - worst fire in history of London underground, killing over 30 ppl

• Piper Alpha Oil rig explosion 1988 - one of the costliest man-made disasters ever (around £5B today) - over 150 ppl died

• Sinking of the Herald of Free Enterprise 1987- boat sank minutes after leaving due to extreme negligence (almost 200 of 450 passengers died)

What procedural requirements regarding corporate liability have developed in recent years?

-Used to be requirement that accused attend in-person =>changed under Companies Act

Workplace fatalities/injuries stats (CSO)

Fatal injuries: betw. 2019 & 2023: average of around 47 ppl per annum

Non-Fatal Injuries: Increased from 2019 to 2023 to around 10,000 ppl

Homicide Rates: Increased from 2019 to 2023

Problems w/ corporate criminal Liability

Barlow Thurlow: “Corporations have neither bodies to be punished, nor souls to be condemned; they therefore do as they like”

-Continuing emphasis on moral accountability

-need for mens rea?

-how does one punish a company?

Common Law approach to corporate crime:

Identification/Controlling Mind Theory

What is the Identification/Controlling Mind Theory

* has been described as the MAIN rule for determining corporate liability for both civil & criminal wrong - carried out by agents & servants of co.

• Controlling mind bc: under this theory, the minds, collectively & individually, of the person/persons  who controls & directs corporation = 'the mind' of the corporation itself

Where did the Controlling Mind/ Identification Doctrine originate?

Lennard’s Carrying Co. Ltd v Asiatic Petroleum Co. Ltd (1915)

What happened in Lennard’s Carrying Co. Ltd v Asiatic Petroleum Co. Ltd (1915)?

• HofL asked whether a corporate ship owner could be made liable for loss of his cargo due to negligent navigation of one of its ships

• Viscount Haldane argued:

  • Actual fault did not have to do w/ liability of a servant or agent only - also w/ liability of the co. who would be made liable by someone who's action was the v. same action of the corp Itself.

=>directing mind & will theory was thus applied

**Key Case & Test for corporate killing*** HL Bolton (Engineering) Co. Ltd v TJ Graham & sons (1957)

• Case on tenancy renewal

• **This case greatly expanded the 'mind of co.' to incl. High and low-level managers

“A company may in many ways be likened to a human body…Some of the people in the company are mere servants and agents who…cannot be said to represent the mind or will [of the company]. Others are directors and managers who represent the directing mind and will of the company, and control what they do.”

Tesco Supermarkets v Nattrass (1971) -limited Test

• Lord Reid acknowledged the 'personality by which a fiction the law attributes to a corporation'

=>upheld Denning L.J's comments from HL Bolton (*above) ->BUT specifically REJECTED any attempt at incl. lower-level manager w/in the concept of controlling the mind

• Reid limited test to:

  • Board of directors

  • Managing director

  • Other superior officers who 'carry out the functions of management and speak and act for the company.'

Academic Commentary on controlling mind theory

“Thus, if the controlling mind is culpable, then the company is similarly culpable. By this process of identification, the common law requirement of mens rea can be maintained even against a company that in reality has no mind of its own.”

Controlling Mind in Ireland

Gordon v Irish Racehorse Trainers Association (2022) IECA

Where does Corporate killing fall under in Homicide?

form of involuntary manslaughter →under gross negligence

1st reported case of corporate manslaughter

R v Cory Bros (1927)

What happened in R v Cory Bros (1927)?

• 1st reported case of manslaughter against a corp. (Cory Bros & Co. ltd)

• A miner was electrocuted by an electrified fence erected by D's Company

• HOWEVER->case failed + concluded an indictment (criminal charge) could not come against a corporation for manslaughter as company could have the prerequisite 'guilty mind' or 'mens rea'

• “[A]n indictment will not lie against a corporation either for a felony or a misdemeanour involving personal violence.”

HM Coronoer for East Kent, ex p. Spooner (1989)

“For a company to be criminally liable for manslaughter . . . it is required that the mens rea and the actus reus of manslaughter should be established . . . against those who were to be identified as the embodiment of the company itself.”

Test for corporate negligence manslaughter case

AG’s Reference No. 2 of 1999 (2000)

What happened in AG’s Reference No. 2 of 1999 (2000)?

• AG referred 2 Q to CA following an incident where a high speed passenger train collided w/ a freight train killing & injuring

• Train's safety systems had been switched off

• Owner of train - a co. =>was charged w/ gross negligence manslaughter

• Trial judge ruled that a corp. could only be convicted of gross negligence manslaughter if an individual who could be identified as its 'controlling mind' was also guilty of gross negligence manslaughter.

• “[T]he identification principle remains the only basis in common law for corporate liability for gross negligence manslaughter.”

Main issues w/ Controlling Mind Theory

• Most prosecutions for corporate manslaughter failed bc prosecution unable to find someone who is sufficiently high enough in the chain to be considered a 'controlling mind' BUT ALSO->low enough to have personal responsibility for procedures & processes that brought ab offence.

  • It assumes outdated idea of close connectivity betw. Senior management & shop-floor level workers

    • =>>this works in small co. tho: R v Kite and OLL (1994)

What was the 1st ever case of corporate manslaughter in English history?

R v Kite and OLL (1994) /aka Lyme Bay Canoeing disaster:

What happened in R v Kite and OLL (1994) /aka Lyme Bay Canoeing disaster?

• Managing director (Pete Kite) sent group of students into harsh sea

• Unforeseen errors - canoes capsized

• Several drowned - others injured

• Pete Kite successfully prosecuted & guilty of manslaughter (along w/ company)

->easily identified controlling mind since co. only 1 man

What is an example of a case where the size of company made it difficult to prove controlling Mind Theory?

R v. P & O Ferries (Dover) Ltd. (1991) / Sinking of the Herald of Free Enterprise 1987

What happened in R v. P & O Ferries (Dover) Ltd. (1991) / Sinking of the Herald of Free Enterprise 1987 ?

•  boat sank minutes after leaving due to extreme negligence (almost 200 of 450 passengers died)

• Prosecution named several employees + company itself

• 2 of employees had sufficient seniority to satisfy mind control test

• Trial judge agreed that indictment could be laid against co. + disagreed w/ co. that homicide could only be committed by a human

  • However -trial judge found no evidence of sufficient responsibility in terms of controlling minds that would allow for criminal liability

  • =>Attempts made to rectify this e.g. by prosecution to base liability on principle of aggregation

(allow the court to add together all the individual culpable acts of employees of co. to be prosecuted & if aggregate of those acts reached standard of fault required (i.e. negligence or recklessness) ->co. could be found liable

Turner J. ruled that principle of aggregation went against common law & house of lords rulings

• Similar argument in AG's reference No.2 of 1999 failed for same reason

Corporate Manslaughter & Corporate Homicide Act 2007 (UK)

• Application to incorporated companies, partnerships, trades unions, employers’ organisations if employers, Crown Depts.

  • Must owe victim a duty of care

  • Company’s activities must breach that duty – substantial element of breach must relate to senior management, but not limited to the level of management – more concerned with management of the company as a whole

  • Causation

  • Breach = gross negligence – s.8 contains list of matters to be considered, including culture of the company that tolerates breaches of health and safety

• Punished by unlimited fines; remedial orders

LRC Proposals - Corporate Killing (2005)

• Adopt a statutory version of corporate gross negligence manslaughter – based on gross negligence of the undertaking as a whole

  • Adopt the Dunleavy test for gross negligence

• Allow for the prosecution of “high managerial agents”

  • Common law manslaughter, or

  • New offence = grossly negligent management causing death

  • Penalties

  • Corporate manslaughter = unlimited fine; remedial orders

  • Individual manslaughter = common law

  • Grossly negligent management causing death = 12 years

What is the Govt’s views on the LRC’s proposals?

• Gov decided in 2010 that in principle the LRC proposals should be accepted – est’d a working group to consider a regulatory impact analysis, which was completed in 2014 but not published

• Series of PMB in 2001, 2007, 2011, 2013, 2016 (x2) in Seanad and Dáil – none has gone anywhere

LRC Proposals Regulatory Powers & Corporate Offences (LRC 119-2018) Vo. 2 - chp 8

• Remove the common law identification doctrine

• For subjective offences, law must reflect how modern corporate bodies actually work – adopt a tracking approach

  • Liability of the company will track that of a secondary offender (ie, senior manager(s))

  • If company has delegated authority to such a manager to organize activities, and s/he does so for a criminal end for the company’s benefit, the manager’s fault may be attributed to the company

  • Rebuttable presumption of attribution when the actus reus has been established and that it could only have been committed by an agent of the company

• If the offence requires objective mens rea, use the 2005 proposals