Corporate Manslaughter - Shipping Safety

Introduction

1 Overview

The Herald of free enterprise was followed by so many deaths resulting from shipping accidents like the Piper Alpha disasterand a few others. There was also the general feelings that enough was not been done in terms of safety. As a response to this, in 1996 the law commission’s report “Legislating the criminal code: Involuntary Manslaughter”, included proposals for a new offence of corporate killing that would act as a stand alone provision prosecuting companies to compliment offences primarily aimed at individuals. In effect, if we consider manslaughter as such, it is really geared towards individuals and is stretched into corporations by the concept of the directing mind and will. So what the law commission seem to propose is the creation of a new stand alone offence that is exclusive to companies while the traditional offence is reserved for individuals.

Supporting this law commission’s position, the Labour party when it came into power in 1997 pledged to introduce an offence along the lines of corporate criminal liability. To make good this pledge, “in 2005 the Corporate Manslaughter bill was” publicised. This was subsequently followed by an updated Corporate Manslaughter and Corporate Homicide Bill introduced in 2006.

This very important piece of legislation took very long to get to parliament and the frustration of waiting for it was expressed by Pamela Dix, executive director of Disaster Action, a charity formed following the 1987 Zebrugge ferry crash, who said ‘The potential implication of losing this bill is incalculable. We need a law that will act as a deterrent. It’s now more than 20 years since Zebrugge, we’ve waited a long time for this law. There has to be moral leadership shown on this issue’.

Corporate manslaughter has always been open to two or more interpretations; while some consider it to fall outside mainstream crime others without mincing words say it is murder. I will however for the purpose of this dissertation tow the line of Croall and consider it as crime.

This area of law is highly complex and fragmentized; as such the sequestration of the topic has been avoided, thus allowing for a sequential structuring of the chapters to make room for clarity. Attempt has also been made to avoid the use of some confusing terms like accident, corporate killing and corporate murder which are synonymous with corporate manslaughter. The term corporate manslaughter shall therefore be used in this work, to refer to workplace death resulting from gross negligence and nothing more.

1.1 Aims and Objectives

This work aims at an analysis of the 2007 corporate manslaughter and corporate homicide Act, to show whether or not the act will overcome the problems with the old law as regards prosecution of companies especially shipping companies under the offence of corporate manslaughter where there has been apparent individual or collective management failings at senior level that results to death. Its objective is to attempt answers at questions such as:

• • Why are workplace deaths presumed accidental?

• • Why couldn’t prosecutors succeed with the old legislation?

• • Has this problem with the old legislation been addressed in this new legislation?

• • What are the likely problems with this new legislation?

• • Are shipping companies immune to prosecution?

• • Why is the Act built on key aspects of the common law offence of gross negligence manslaughter?

1.2 Chapters & Structure

Chapter one provides an overview of this dissertation, stating the need for considering the issue of manslaughter and the new Act. It also considers the structure and methodology of the work. Chapter two focuses on some general issues relating to corporate criminal liability and historical events which necessitated the call for a new law on corporate manslaughter. Some issues to be addressed here includes: the definition of manslaughter, gross negligence and its application, the theory of identification, the herald of free enterprise, the process of aggregation and the two-fold response. Chapter three considers a case study of corporate manslaughter in the case of Simon Jones and the Solway Harvester case Attempt shall be made at X raying the death, and the investigations that followed as well as the trial which resulted from the investigations. Problems associated with prosecution shall also be addressed. Chapter four shall be dedicated to analysing the 2007 corporate manslaughter and corporate homicide Act. It shall consist of a brief background history of the Act, problems associated with building it on key aspects of the common law offence of gross negligence manslaughter, the process of adducing evidence independent of shipping companies to be prosecuted, problems of lifting the corporate veil, and that of identification in relation to small firms. Chapter five shall be a re-statement of the issues addressed in chapter four and a conclusion.

Every chapter treated shall be concluded with a summary which identifies the key issues and ingeminates them for emphasis sake. While the conclusion shall extract the key issues treated in every chapter and harmonise them with my personal opinion and recommendations for reform.

1.3 Methodology

The regulatory context of corporate manslaughter has under gone a major renovation. It is therefore imperative at this time to assess and address the implications these changes could impress upon the prosecution of Corporations.

Several researches and debates have considered this issue of corporate manslaughter under Common Law and previous legislation where Corporations have remained untouchable, as it has been extremely difficult for prosecutors to successfully prosecute companies for the offence of manslaughter. The main reason for this difficulty has been the requirement for prosecution to show a causal link between a grossly negligent act or omission by person or persons considered to be the controlling mind of the company and the actual fatality. The difficulty to show this level of proof has therefore resulted to very few convictions of companies for manslaughter. The 2007 Corporate Manslaughter and Corporate Homicide Act looks to change the existing common law of corporate manslaughter making it easier to successfully prosecute corporations for manslaughter. The act does not seem to have proposed any changes to the regulatory procedure of corporate manslaughter, which remains the duty of the combined efforts of the HSE, police and CPS; neither does it make the penalties any stricter. It however intends to remove obstacles that have abinitio protected corporations from prosecution. It is also believed that “The new law will make it easier for prosecutions to succeed, particularly against large organisations. This is primarily owing to the fact that under the new law the prosecution will not have to identify the controlling mind behind the organisation’s activities. Instead the prosecution will focus on the conduct of the senior management, both individually and collectively”

This work therefore, intends to show whether or not this new Act will overcome the problems with the old law, so that from the 6^th of April 2008 when it came into operation we shall see many more successful prosecution of companies especially shipping companies under the offence of “Corporate Manslaughter” where there has been apparent individual or collective management failings at senior level that results to death.

To achieve the aims and objectives set out in this dissertation, the grounding of the study shall be carried out through a literature based research. Information contained herein shall be gathered from cases (law reports), books, journals, and electronic sources (audio visual material).

There is also the employment of a case study technique which utilises the transcript of the case/ cases under review to expose the problems of corporate manslaughter as they were before the appearance of the 2007 corporate manslaughter and corporate homicide Act.

Case study research method “is an empirical inquiry that investigates a contemporary phenomenon within its real-life context; when the boundaries between phenomenon and context are not clearly evident; and in which multiple sources of evidence are used.” It is very useful to research as it helps us to better grasp complex issues and even broaden experience or strengthen that which is already known through former research. It involves the ‘examination of an instance in action’, “the study of a bounded system (the case) selected as an instance drawn from a class, or alternatively, the study of the case as a bounded system issues to be indicated, discovered or studied. The case is usually an entity of intrinsic interest and although similar to others, it has a distinctive internal unity of character. The milieu or context within which it is embedded is highly important to the overall study, as interactions between it and the focus of observation lead to richer description, and hence better understanding”.

The product of every “case study are different kinds of generalisation: from the instance to a class, from the instance to a multiplicity of classes, or about the case itself”.

2 The Concept of Manslaughter

“… of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions.” While in the eyes of the law, “Murder is unlawful homicide with malice aforethought. Manslaughter is an unlawful homicide without malice aforethought.”

Under the “common law, all unlawful homicides which are not murder are manslaughter. There are now numerous statutory forms of unlawful killing including, for example, causing death by dangerous driving.”The term covers several kinds of homicide. “This is an inevitable consequence of it being limited in scope only by murder at one extreme and accidental killings at the other.” In spite of several acts recognised in law as manslaughter, it is conventional and some worth imperative to categorise manslaughter in to two forms – voluntary and involuntary. This differentiation is such that with voluntary manslaughter a person could have the mens rea and actus reus for murder, but his act cannot be held to be murder, but a less severe form of criminal homicide. Common law accepts voluntary manslaughter to have occurred only if the killing was the direct result of provocation. However, the homicide Act made provocation a statutory defence along side two other categories of voluntary manslaughter, providing that “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”

Involuntary manslaughter on the other hand is made up of all sorts of homicide which although are not maliciously pre-planned acts, are still not lawful under common law. It is certainly not surprising, that the act needed to establish involuntary manslaughter comes in divers form. “And as the limits of malice aforethought are uncertain, it follows inevitably that there is a corresponding uncertainty at the boundary between murder and manslaughter.” For sure, the problem does not stop there as there exists “another vague borderline between manslaughter and accidental death.”

2.1 Stages of Evolution of the Gross Negligence Test in Manslaughter

The Journey started with the Bateman’s case where a doctor lost a patient during child birth and the Court of Appeal held for the very first time, that gross negligence was the test for manslaughter. Lord Hewart CJ posited in this case that:

“ in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A. owed a duty to B. to take care, that that duty was not discharged, and that the default caused the death of B”. Furthermore, to secure a manslaughter conviction, “…prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A.’s negligence amounted to a crime”. He goes on to add that “‘— in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.’”

This gross negligence test for manslaughter was later affirmed by the House of Lords in the 1937 case of Andrewswhere the court convicted a defendant for manslaughter following death which resulted from the defendants dangerous and reckless driving of a car.

Then came the case of Lawrencewhere a motor bike driver was convicted because he caused death through reckless driving. In this case, the law Lords held that the mens rea of the offence presents itself as the driver drove in such a way that he never gave thought to the risk or even when he recognised that the risk exists he carried on with utter disregard. Here, the jury was to determine whether the risk was obvious as well as serious. The standard to be used to determine the seriousness of the risk is that of an ordinary careful motorist.

The 1983 case of Seymour quickly followed Lawrence. In this case, a lorry driver attempted to push his girlfriend’s car out of the way with his lorry, and ended up crushing her in the car. Convicting him for manslaughter by reckless driving, the House of Lords held that Caldwell recklessness as to some harm was the required mens rea for reckless manslaughter.

Furthermore, in 1985 the collision in Hong Kong harbour between two hydrofoils saw the Privy Council applying the new form of reckless manslaughter. The Council held in the case of Kong Chuck Kwan that the position of the court in Lawrence which was upheld in Seymour applies in this case. The Council goes on to posit that the test in the earlier cases was comprehensive enough and useful for every involuntary manslaughter case which falls outside the domain of constructive manslaughter.

The 1993 case of Prenticehowever, attempts to move away from this position in Lawrence and Seymour by showing that “a breach of duty amounts to ‘gross negligence’ when there is: … (a) Indifference to an obvious risk of injury to health; (b) actual foresight of the risk coupled with the determination nevertheless to run it;(c) appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in the attempted avoidance as the jury consider justifies conviction, and inattention or failure to advert to a serious risk which goes ‘beyond inadvertence’ in respect of an obvious and important matter which the defendant’s duty demanded he should address.”

Lawrence and Seymour were finally jettisoned by the House of Lords in the case of Adomako where an anaesthetist failed to notice that the tube in a ventilator supplying oxygen to his patient has been disconnected. The law Lords upheld an earlier judgement stating that the anaesthetist was properly convicted of involuntary manslaughter resulting from breach of duty.

This principle in Adomako was followed in the 1999 case of Lidarwhere the victim was half leaning on the defendants car and arguing with him when he drove off and caused the victim to be crushed by the rear wheel of the car. The Court of Appeal convicting the defendant of manslaughter stated that to be liable for manslaughter, the defendant must have not only foreseen a risk of serious injury or death occurring, but must have also assessed the risk as highly probable to occur.

2.2 Why Extend Manslaughter to Corporations?

Over time the criminal law has coped with addressing the wrong acts of individuals who are perceived to be independent and self-directed, having the capacity to think for themselves, and the free will to choose to do right or wrong. Consequently, the choices they make can attract condemnation where they are wrong choices and may also attract praises if they are good. Contrived systems like corporations are not accommodated by this concept of responsibility.

Life in the world we live in is impacted upon in several ways by companies. The cloths we wear, the food we eat, our drinks are all processed by companies, so in a way we are dependent upon them. However, in cause of getting the food, clothes and drinks to us, they one way or the other pollute our environment which in turn endangers our life. It is also possible that before their products get to us some of the people involved in the production of the products would have sustained injuries, which may result to their death or even incapacitate them. It is equally very possible for people to come to harm after eating the food, or wearing the clothes or even drinking the drinks produced by a company as seen in the case of R v F. & M. Dobson, where the company producing ‘Cock-ups’, a nut toffee sweet supplied a ‘Cock-ups’ which a lady put into the mouth only to realise it was not a sweet, but a Stanley knife blade coated with chocolate. The question then is can these companies be made criminally liable like the individuals who when they make the wrong choices are held accountable?

A “company is for legal purposes an independent person having an existence separate from that of the human beings who own, manage and serve it”. Consequently, on strict liability it can be held criminally liable where it commits a criminal offence. However it is very unlikely that a company could commit offences which require human action like bigamy and sexual offences.

“While companies have long been held liable for a wide array of offences, such as pollution offences and offences involving financial irregularities, the whole issue of corporate criminal liability has become extremely high-profile and controversial in cases where the activities of companies have led to the death or injury of workers or members of the public”. Some of these corporate activities which resulted to deaths includes: the Zeebrugge disaster of 1987 which saw the capsizing of the ferry, Herald of Free Enterprise, and the loss of 192 lives; there was also the Kings Cross fire disaster which took 31 lives; and the Alpha Piper disaster of 1988 which resulted into 167 deaths. Lives were also lost in some catastrophic train crashes like the Southall, Paddington and Hatfield crashes which claimed several lives. While these train mishaps were “accompanied by mounting accusations of incompetence and complacency and poor safety management by the rail companies”involved inquiries into earlier disasters “identified “unsafe practices”, grave shortcomings” and “significant flaws” in the management’s approach to safety as causes”.

2.3 Corporate Manslaughter in Ship and the Application of the Gross Negligence Test

Corporate manslaughter takes place where there is an unsafe ship or an unsafe operation in a ship and ultimately one way or another it leads to death.

Formerly before there could be a manslaughter charge, there has to be recklessness – recklessness as to whether someone was killed or not. However, in 1994 the case of Adomako changed all of this.

In cases of manslaughter by criminal negligence involving a breach of duty, it is sufficient direction to the jury to adopt the gross negligence test without reference to the test of recklessness as defined in the Lawrence case or as adapted to the circumstance of the case. So from this point of view, it has gone from recklessness to gross negligence as being the test. This basic position was amplified by Lord Mackay who said:

“… [I]n my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the [deceased], was such that it should be judged criminal.”

To determine negligence and gross negligence, the following factors outlined by the Law Lord have to be considered:

• • the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred;

• • The jury will consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.

The answer therefore is, “In cases of manslaughter by criminal negligence involving breach of duty, it is sufficient direction to the jury to adopt the gross negligence test set out by the court of Appeal…it is not necessary to refer to the definition of recklessness in Reg .v. Lawrence… although it is perfectly open to the trial judge to use the word ‘reckless’ in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.”

Primarily, Lord Mackay was positing this in relation to individuals – an individual who owes a duty of care or in a position of gross negligence. But the fact remains that most shipping situations involve ships that are owned by corporations and not individuals. So it becomes quit imperative for us to proceed to consider what the situation really is in relation to corporations.

Until recently it has not been possible to convict the corporation itself for criminal negligence, unless it is found that the individuals who can be identified as the ‘directing mind and will’ of the corporation, are themselves guilty of gross negligence. So corporations under pre-existing law cannot be prosecuted per se, what has to be done is to identify key individuals who can be said to be the directing mind and will of the corporation and see if they had been guilty of gross negligence. This directing mind and will as seen in the Tesco case will be some sort of senior individual like chairman of the board, managing director or some other senior individual who could be said to embody the company in his actions and decisions. Such a person if guilty of the offence of gross negligence could be made culpable with the company under a principle known as identification.

2.4 THE IDENTIFICATION PRINCIPLE

Over time it has been observed that the criminal law of England has always found it difficult to make companies criminally liable for blameworthy crimes. The reason for this seemingly incapacitation on the part of the law is the dedication to the personalised notions of responsibility associated with this sort of crime. “However, as company law developed the fiction of corporate personality – the idea that a company was a legal ‘person’ that could sue and be sued in its own name – the criminal law did not take long to lift this fiction and superimpose it on its individualist conception of criminal liability.” Courts began to lift the veil of incorporation so as to determine whether an individual has “committed the actus reus of a crime with the appropriate mens rea.” To achieve this, the mind of a senior individual in the company is identified with the mind of the company. This was the case in the Herald of free Enterprise, which was a judicial review of the coroners decision where Lord Bingham stated that “…on appropriate facts the mens rea required for manslaughter can be established against the corporation, I see no reason in principle why such a charge should not be established.” So one can establish mens rea against a corporation by looking at the directing mind and will of that corporation. He goes on to add that: “Whether the defendant is a corporation or a personal defendant, the ingredients of manslaughter must be established by proving the necessary mens rea and actus reus of manslaughter against it or him by evidence properly relied on against it or him”. What the law lord seems to be saying here is that yes you have got to have the evidence against the individual and if that individual is the directing mind and will of the company then that is seen as evidence against the company, but what you cannot do by implication is that you can’t enter a process called aggregation.

2.5 THE PROCESS OF AGGREGATION

This is simply where one uses the mens rea of several people to convict someone else. Let us assume there are 17 people working for a shipping company and these 17 people commit a criminal offence, you then conclude that the shipping company must be guilty of the particular offence. Those 17 people can only be of consequence if they are the directing mind and will of the company, but if they are merely 17 employees, then it is the 17 employees that should be prosecuted and not necessarily the company. Hence you cannot aggregate the wrongful activities of individuals and then pass it on to the company unless those individuals are the company in the sense of its directing mind and will.

In essence, a case against a personal defendant cannot be fortified by evidence against another defendant. And in the same way, the case against a corporation can only be made by evidence properly addressed to showing guilt on the part of the corporation as such. That is the process of aggregation. So the only way you can do this through the identification theory is to say the people who were grossly negligent are the senior officers and they are the company to all intent and purpose therefore the company is guilty.

This was the position of the law at the end of the Herald of Free Enterprise, and to that there were two responses.

2.6 THE TWO-FOLD RESPONSE TO THE HERALD OF FREE ENTERPRISE

There was an immediate legislative response put in place by the government to address the problems faced by prosecution in their attempt to show the guilt of corporations as regard gross negligence manslaughter. This immediate legislative response created a new statutory offence of unsafe operation under the merchant shipping Act of 1988

This response under s 31 of the MSA 1988 made the owner, demise chatterer or the ship manager of a ship upon whom responsibility for her safe operation lies at a particular time criminally liable for unsafe operation punishable upon summary conviction with fine up to fifty thousand pounds (£50,000) or on indictment with two years imprisonment. To this extent we got a new offence of unsafe operation which although is no more, got translated into the 1995 MSA, and also applies to non-UK ships which are within UK territorial waters. The Act requires these ships to take reasonable steps to ensure that the ship is operated in a safe manner, but it is not applicable to non-UK ships if they only came within the UK territorial waters due to weather or unavoidable circumstances.

Certainly this response was not adequate and did not seem to have solved the problem, it was a very quick response which simply says there is now this new offence, but does not apply to all ships.

The second and longer response is the 2007 manslaughter and homicide Act which came into force in 2008

3 CASE STUDY

According to the record of the Marine accident investigation branch of the Department for transport, while there were a total of twenty eight on going or current marine accident investigations between 2^nd of January 2008 to the 21^st of June 2008, there were a total of two hundred and twenty two completed preliminary examinations on marine accidents between 29^th June 2002 and 24^th June 2008. Interestingly, between 1989 and 2001 there were a total of five thousand nine hundred and sixty marine accidents and incidents out of which only one hundred and sixty seven were investigated

Most of these accidents could very well have attracted a corporate manslaughter prosecution, but did not and the few that did were not successful as prosecution could not secure a manslaughter conviction as was the case in Solway Harvester The reason why most of the shipping companies involved in these accidents were not prosecuted could very well be attribute to the investigating process involved.

On the other hand, the reason for the failure of prosecution to secure a manslaughter conviction for those cases that went on trial shall be examined in the cases of Solway Harvester and Simon Jones.

3.1 THE SOLWAY HARVESTER

This is the case of seven crew members including two brothers & their cousin who set to sail on the Solway Harvester on the 11^th of January 2000 and met their deaths as “The Solway Harvester went down in gale-force winds in the Irish Sea, 11 miles off the coast of the Isle of Man.”Deaths which “devastated the remote villages that make up the Machars, in Dumfries and Galloway.”

During investigation, accident investigators found out “11 serious safety breaches on the boat”Following these findings, Mr Richard Gidney, the Director of the company “faced seven counts of manslaughter at the high court in Douglas, Isle of Man.

The trial “was halted at the close of the prosecution evidence … after the trial judge, the acting deemster Andrew Moran QC, ruled there was no case to answer.” The Judge stated that “The evidence put before the jury is insufficient to establish that there was any lack of care, particularly regarding what was the common and accepted practise of the vessels at the time”.

Prosecutors had however posited that the Solway Harvester was allowed to set sail with avalanche of faults, faulty flood alarm and absence of deck cover. The jury was informed that despite the boats flooding history, the bilge pump designed to dispel flood water was not operable besides watertight doors of the boat were for some unknown reason tied open.

The trial judge however, disagreed with prosecution and “criticised several areas of the prosecution evidence,” stating that “after a flood on a sister ship, the Tobrach-N, Mr Gidney had demonstrated “Proactive and safety-conscious conduct” and could not be held responsible for the safety breaches, on board the Solway Harvester.” Mr Moran goes on to say that “There was no evidence by which a jury could conclude that the dependant’s conduct departed in any way from what was to be expected, “and certainly it could not be determined as criminal.””

3.2 THE SIMON JONES CASE

This case of Simon Jones came out of a direful accident on the 24^th