Sample 2:1 Undergraduate Law Dissertation

Corporate Crime: Holding Companies Accountable

Abstract

This dissertation critically examines the theoretical, legal and practical foundations of corporate crime. In the endeavour to propose and develop arguments concerning how companies may be held responsible for criminal conduct, particularly manslaughter, UK legislation will be critically examined. The identification of problems and weaknesses in UK law will fuel proposals for reform, which primarily suggests that both individual and collective liability should be imposed. 

Introduction

The problem of corporate crime has fuelled rich debate for decades. This is primarily due to the fact that the notion of corporate criminal liability challenges all aspects of traditional criminal law and liability.[1] However, the problems posed by corporate criminal liability have not hindered the need for the law to hold companies liable when they commit crimes. The main issue is that criminal law is rooted in individualistic foundations, meaning that it does not fit in with the collective nature of corporate conduct.[2] This reveals the core of the issue – should (and, indeed, can) companies be convicted of crimes as collective entities, or must its individual members be targeted? The criminal law concepts of mens rea and actus reus are rooted in individual responsibility, while collective corporate entities challenge this approach towards criminal liability.[3] A further problem lies in the fact that the doctrine of separate corporate personality[4] separates the rights and liabilities of the company from its members.[5] How, then, can criminal responsibility be imposed upon individual members without distorting this cornerstone principle of company law?

The fact that it may be difficult to develop a system for imposing criminal liability upon companies does not mean that they should escape liability when they commit crimes. Companies pose a potentially major threat to life and health, as their actions have caused the death and injury of many individuals across the globe.[6] The notion that companies should be convicted for corporate manslaughter was first addressed in Northern Ship Mining Construction Co Ltd,[7] in which a worker had been killed because the company had given him incorrect instructions on how to demolish a bridge. The company was acquitted on the facts of the case, but the court clearly accepted that a company could be convicted of manslaughter. Since this important decision, the number of criminal offences that companies may be convicted of has increased in scope and volume.[8] Corporate manslaughter was not however codified until the Corporate Manslaughter and Corporate Homicide Act 200, prior to which companies had on rare occasions been convicted under the Health and Safety at Work Act 1974. Sanctions following a conviction under the 1974 Act are however fine-based, and do not reflect the nature of criminal conduct, or have any major impact on the financial viability of companies.[9]

There are both theoretical and practical problems that arise when considering the potential to convict companies of criminal offences.[10] A prominent debate pertains to whether individual or collective liability should (and can) be imposed, and also whether a company can be convicted and punished in the same manner as an individual.[11] Who, then, should be held responsible for corporate criminal conduct – individual company members, or the company as a whole?[12] A most prominent offence in this respect is corporate manslaughter, obviously because it involves the loss of life.[13] When an individual loses his/her life due to the conduct of a company, is it the individual members, or the company as a whole, that should be convicted and punished?

This dissertation will critically examine the imposition of liability for the offence of corporate manslaughter, in order to determine how companies may be most effectively held responsible for such conduct. The dissertation will commence with a brief overview of the development of corporate criminal liability in the UK. This will reveal the principles that underline the development of corporate liability, and the approach that has been, and is, adopted towards corporate crime. An overview and critical examination will then be undertaken of two core statutes (the Health and Safety at work Act 1974, and the Corporate Manslaughter and Corporate Homicide Act 2007) that provide for the conviction and punishment of corporate criminal conduct. Whether individual or collective liability is imposed under these statutes, and which may be deemed the most appropriate will be critically examined. Strengths and weaknesses in these two statutes will be addressed, and how they may be improved will be presented, with reference to Italian law. The purpose of this reference to Italian decree 231/2001 is that it provides for the imposition of liability upon both individual company members and the company as a collective entity, depending upon the circumstances of the case. It therefore reveals potent weaknesses in the Corporate Manslaughter and Corporate Homicide Act 2007, which does not allow individual members to be convicted. In exploring the theoretical underpinnings of individual and collective criminal responsibility, arguments will be presented for the reform of UK law to enable both company members, and the collective corporate entity, to be convicted and punished of corporate manslaughter.

Corporate Liability: A Historical Overview

Historically, convicting and punishing companies for criminal conduct does not fit comfortably with traditional criminal law foundations and principles.[14] Even in modern society, it appears baffling to some to consider that a company can be convicted as individual offenders can. This is primarily because companies cannot appear in court per se. In the 16^th and 17^th centuries, the law clearly stated that 'a corporation is not indictable, but the particular members of it are'.[15] This stance indicated a response to the practical and theoretical problems that typically arise from the attempt to impose liability on companies for criminal conduct. It could not be accepted or understood that companies could have criminal intention and be held morally blameworthy – two important components of criminal liability.[16] Practical obstacles were also considered to pose an undefeatable hindrance – particularly the need for a defendant to appear in court. Finally, it was considered that criminal conduct could not be attributed to companies, and they were therefore effectively immune to liability.[17]

It was commonly stated that companies had 'no soul to damn and no body to kick', because they were placed beyond the reach of the criminal law.[18] Crimes committed via the corporate structure were responded to by convicting and punishing individual company members rather than the company as a distinct legal entity.[19] The rule that companies could not appear in court was due to the legal prohibition of appearance at court by attorney. While this was abolished under section 33 of the Criminal Justice Act 1925, which enabled company representatives to appear in court, the imposition of liability upon companies was still hindered by the inability to find mens rea.[20]

The legal approach towards corporate crime shifted in the 19^th century, as it was recognised that companies should not be able to escape liability when they commit crimes.[21] Legal systems around the world began to identify and seek to solve the problem of corporate criminal responsibility. The UK courts imposed liability upon certain types of companies (such as quasi-public companies) for public nuisance offences.[22] Liability was later extended to include offences such as nonfeasance,[23] and a broader range of companies, such as commercial companies. The previous notion that companies could not be held liable for criminal conduct gradually faded, particularly due to shifts in public opinion as to the liability of companies,[24] and the increased presence of companies in society.[25] Corporate liability for criminal conduct therefore became widely accepted as the 19^th century drew to a close. Such acceptance gained pace following certain corporate disasters, which were given extensive media coverage, causing corporate crime to be further pressed into the public spotlight.[26] The King's Cross fire, for example was caused by safety failures and the incompetence of company members.[27] The Piper Alpha oil rig disaster, which caused 150 deaths, further emphasised the need to hold companies liable.[28] The disaster was caused by unsafe working conditions, human error and design faults in the rig.[29]

The 20^th century brought with it more aggressive attempts to regulate companies, and to hold them criminally liable for damage inflicted upon individuals, society and the environment. In the UK, the regulation of companies is dispersed throughout various legislative provisions. The next chapters will outline and critically examine these provisions.

Corporate Liability in the UK

The Health and Safety at Work Act 1974

The Health and Safety at Work Act 1974 (HSWA 1974) is founded upon the core aim of securing the 'health, safety and welfare of persons at work', and others affected by work-related activities.[30] The Act created a Health and Safety Executive, who enforces the HSWA 1974 and other legislation pertaining to health and safety at work. Health and safety offences may be convicted under section 37, provided they are committed by, or under the consent of, directors, managers, or other company members. Offences under the Act are punishable by either a fine or imprisonment. The HSWA 1974 is based on the need to protect both workers and the public from corporate activities.[31] It specifies certain duties that must be fulfilled by various categories of company members, such as managers, employers and employees. The Act's public supervision regime is implemented by the Health and Safety Executive and the health and Safety Commission, who are given extensive powers of enforcement.[32]

Under Part 1 of the HSWA 1974, general, preliminary duties, and to whom they are owed, are stipulated. For example, section 2 states that employers must seek to secure the 'health, safety and welfare at work' of all employees. This duty includes the provision of safe systems of work, to provide training to employees, and to ensure that working conditions are sufficiently safe.[33] The Act is therefore broad, as the duties of employers are extended to those that are not even in their employment, but who 'may be affected'.[34] Employees are, under section 7, required to 'take reasonable care', although this does not mean that they are under a distinct duty of care. This was emphasised in the judgement of Pittwood,[35] in which it was stated that an employee could only be convicted of gross negligence by omission if he had been required to undertake specific tasks. The duty of employees under section 7 HSWA 1974 therefore rarely results in liability, indicating that a more prominent burden is placed upon employers.[36]

The broad scope of the Act is further indicated in the fact that employers are also responsible for sub-contracted undertakings. In such cases, employers must take reasonable steps to ensure that non-employees are not exposed to risk.[37] The Act has been interpreted by the courts broadly and rigorously. For example, in the judgement of Board of Trustees of the Science Museum,[38] it was established that there is no need that the public be put in actual danger, and an employer need not even have created the risk. It is therefore usually sufficient that there was a possibility of danger, and that insufficient steps had been taken to prevent it. The courts have also interpreted the HSWA 1974 to impose high standards on senior employers. The court in British Steel[39] did not for instance accept that a senior employer could avoid liability by showing that he had taken reasonable steps, when such steps had not been taken at the operational level. It is therefore generally accepted that it is not a defence to state that a duty was breached by an employee if the employer could have reasonably ensured a sufficient degree of safety.[40] This rule also operates to ensure that employers are not subject to unreasonably high standards, because an employee that is in breach of a duty under the HSWA 1974, will not automatically give rise to the assumption that his employer also breached a duty.[41]HSWAH In assessing whether sufficient steps to prevent risk have been taken, the courts will weigh the risk of accident and the measures implemented to eradicate the risk. The employer in Austin Rover Group Ltd v HM Inspector of Factories[42] was not therefore held liable, as it was found that the risk was small when compared to the extensive measures that had been taken to prevent it.

A particularly important feature of the HSWA 1974 is section 37, which stipulates that directors and senior management, 'as well as the body corporate', will be held liable for offences committed under their 'consent, connivance' or 'neglect'.[43] The term 'neglect' includes the act of allowing the corporate legal entity to commit an offence. This section clearly indicates the attempt to avoid difficulties in imposing liability upon particular individuals. This means that, if death is caused by a health and safety failure that has, for example, resulted from inadequate equipment, will result in the imposition of liability upon the management and the company. Section 37 HSWA 1974 is therefore a powerful mechanism because it creates a direct relationship between the company and those who control and direct it, assigning them responsibility in such situations. This attaches importance to the fact that managing members exert the most control over the company, and therefore should be held liable for deaths that result from the acts or omissions of the company.[44] In the event of a breach of a general duty, unlimited fines are provided for under the Act. Each fine is calculated according to potential danger, risk and the extent to which the defendant violated his duties. To cause another's death, and evidence of negligence are identified as aggravating factors.

Although the HSWA 1974 may be applauded on the grounds that it is a powerful mechanism for convicting and punishing corporate crime, it is not without its weaknesses. A prominent problem is that the Act states that the duties of employers and employees must be fulfilled 'so far as is reasonably practicable'.[45] The problem with this is that it is based on a subjective assessment of what may be accepted as reasonable, which is not easy to determine with consistency or accuracy. What could be accepted as reasonable for one individual in a certain situation may not necessarily be reasonable for another, even under similar circumstances.[46] This injects a lack of clarity into the Act, because it does not establish a base standard of conduct that is safety-conscious. This has created a conflict between judicial and legislative integrity in terms of the standard of responsibility that is applied under the HSWA 1974.[47] This is exacerbated by the broad powers of authority granted to the Safety Executive Commission under the Act. Such a division of power has resulted in the inconsistent application of the Act, which has also hindered its ability to effectively impose liability upon individuals who have committed corporate crimes.[48] The HSWA 1974 is also unable to impose liability upon directors. While it does state that, when the company is liable, directors may be held liable, the implementation of this principle has suffered hindrances. In cases concerning manslaughter in particular, a directing mind or individual who is responsible for errors resulting in death must be identified.[49] The courts have generally been unable to prosecute in such cases, as it is typically difficult to identify a responsible directing mind in companies with many directors.

The abovementioned weaknesses have not escaped attention. The courts have most prominently declared their discontent with the application and impact of the HSWA 1974. For instance, in Davies v Health and Safety Executive,[50] Tuckey J states that the Act is ultimately 'regulatory rather than prescriptive' in that it focuses more on the need to protect life, irrespective of the relationship between company members and the deceased.[51] All that is required is that a connection exist between the work environment and the criminal act. This could be rooted in a number of conditions, and be tangible/physical or intangible/environmental. While the Act's vagueness enables it to be applied to both tangible and intangible conditions, it does not explicitly determine the nature of the connection between the criminal act, the company and its members.[52] On the other hand, the HSWA 1974 has, due to its broad approach towards work-related health and safety, facilitated compliance.[53] The Act is flexible, which has enabled compliance bodies to enforce its provisions, and to impose a wide variety of sanctions upon any member of a company. This has enabled it to have a prominent impact on corporate crime, and it may be applauded as a legislative mechanism that adopts a suitable approach towards corporate criminal liability.

The Corporate Manslaughter and Corporate Homicide Act 2007

The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) is the consequence of a long history of attempts to hold companies criminally liable for manslaughter. Prior to the implementation of the Act, companies could be convicted for crimes under the legal concept of vicarious liability, or under the identification doctrine as rooted in tort law.[54] These legal mechanisms enabled a personality to be attributed to a company for the purpose of holding it criminally liable.[55] Under the principle of vicarious liability, companies are held liable for the criminal conduct of their employees, in the same manner that individual employers are held liable for the crimes of their employees.[56] However, this is a relatively limited mechanism from the perspective of corporate criminal liability, because it only operates in relation to statutory crimes of strict liability. It cannot therefore be utilised to hold companies liable for criminal offences such as manslaughter.[57]

Before the CMCHA 2007 was implemented, the identification doctrine was utilised to enable companies to be convicted for criminal conduct. The identification doctrine is founded upon the notion that there are certain company members that can be identified as those that constitute the company itself.[58] The conduct of a company is therefore able to the treated as the conduct of such members.[59] In the judgement of Bolton (Engineering) Co Ltd v TJ Graham & Sons Ltd,[60] this approach was adopted, and it was held that companies can be defined as entities with a human body, with a human mind and human limbs.[61] It was stated that the mind of the company could be attributed to the company's managers and directors, because they yield considerable power over the company's decisions and actions.[62] This approach operates to exclude workers from the scope of liability, because they cannot be said to embody the mind and will of the company per se – they are merely its hands.[63] This principle therefore endeavoured to create a link between the thought process behind the actions of companies, and the members responsible for implementing them – the management. Corporate criminal liability therefore arises under the identification doctrine when company members constituting the mind and will of the company have committed the requisite elements of the criminal offence concerned.

Such mechanisms applied to justify the imposition of criminal liability upon companies however suffered a number of weaknesses,[64] which will be identified under the chapter on the identification/aggregation doctrine below. This ultimately resulted in the CMCHA 2007, which abolished the common law offence of gross negligence manslaughter and created the statutory offence of corporate manslaughter. Under section 1(1), managing members, in order to be convicted under the Act, must have grossly breached their duty of care that the company owed to the deceased, and caused the death in question. The scope of the CMCHA 2007 is broad, and applies to a variety of corporate structures and types.[65] Section 18 CMCHA 2007 most importantly confirms that individuals cannot be convicted under the Act, which thus avoids the problems that plagued the HSWA 1974 concerning the relationship between employees, employers, and the company.[66] A conviction under the Act can attract a variety of sanctions, such as a remedial order, a publicity order, and/or unlimited fines.

A company can be held liable under section 1(3) of the CMCHA 2007 if the manner in which its functions and activities are organised by the management constitutes a substantial element of a breach of section 1(1). The terms 'relevant duty of care' is used in this provision, meaning that companies can be convicted of corporate manslaughter if the manner in which its activities are managed causes death and constitutes a gross breach of the duty to take reasonable care.[67] The sole cause of death need not be rooted in a managerial failure, it is sufficient that the company's conduct fell substantially below that which should be reasonably expected.[68]

The CMCHA 2007 may be deemed effective in that it overcomes problems that undermine the aggregation principle (as will be outlined further below). It attaches core importance to the systems that are featured in companies, rendering it irrelevant whether they were implemented by a sole individual, or several individuals.[69] The Act targets the company's system itself. For instance, a senior manager is defined under section 1(4)(c) as he who plays a significant, principal role in the company's activities and decisions. It has been argued that liability under the CMCHA 2007, 'whether primary or secondary, is predicated on a form of ameliorated aggregation'.^[70] Furthermore, managerial failure eliminates problems related to identification, because the participation of a senior manager need only form a substantial rather than a complete proportion of the breach of duty. Therefore, the participation of non-senior workers and employees in company activities that result in a breach will not prevent liability from being imposed under the Act, or undermine the importance of the role of senior managers in imposing responsibility.^[71]

Despite its strengths, the CMCHA 2007 has been criticised. One problem appears to be that there is a lack of clarity as to its definition of the term 'employee', meaning that previous problems relating to this issue have not been eased.^[72] This problem is pertinent because it could encourage companies to outsource important decisions that run a high risk of death, in order to avoid potential liability under the CMCHA 2007. This would mean that important decisions would not be able to be attributed to any internal members of a company that has outsourced them.[73] This could be identified as an important loophole in the Act. It has for example been proposed that

'the legal debate as to whether a defendant is so senior as to embody the company will be replaced by a similar debate as to whether or not the defendants are senior managers…an issue that should be relevant to sentencing but not liability'.^[74]

This is an important problem, which reveals the biggest weakness of the CMCHA 2007. It essentially causes uncertainty to arise, which companies could take advantage of in order to escape liability.

It could be argued that companies should be held responsible for a wider range of crimes that mere organisational failures resulting in death. It has been recognised that 'most accident sequences, like the road to hell, are paved with good intentions – or with what seemed like a good idea at the time'.^[75] It could therefore be argued that the scope of the CMCHA 2007 is too narrow, and that it should be expanded to include other decisions and actions (other than organisational failures) that result in death. Moreover, the Act seems to fail to embody a full understanding of what legal academics originally meant by the term 'corporate mens rea'.[76] On the other hand, the Act still requires that the court locate a 'senior manager' who implemented a particular procedure.[77] It could be argued that death could also result from a failure in a company's systems, rather than purely human error.[78] In such cases, there is little logic in seeking to identify an individual who implemented the systems of the company. This is due to the fact that

'direct proof of mens rea should not pose any particular problems once it is understood that this can be located in the company's policies and organisational structure'.^[79]

While this approach could be defined as one that is identical to that which is implemented under the CMCHA 2007, it is, in practice, distinct, because it directs attention away from proof that a senior manager breached a duty towards a general duty to promote an overall safe system of work. This approach would enable corporate liability to be imposed when a failure or an omission to work as part of a safe system can be found.

Section 18 CMCHA 2007 stipulates that an individual company member cannot be convicted for abetting, aiding or counselling corporate manslaughter. This is problematic because it undermines the Act's overall force, purpose and impact. This section does not achieve much in terms of enforcing compliance with the Act, because it separates individual members from the corporate structure. Furthermore, it does not acknowledge that certain individuals may be responsible for a death. Clearly, companies consist of their members, and therefore to completely exclude liability for such individuals is to thwart the force and effectiveness of the CMCHA 2007.[80] Even the sacred corporate veil, which separates the liabilities of the company from those of its members, can be set aside by the courts.[81] The piercing or lifting of the corporate veil enables company members to be held liable for the company's actions in an array of situations.[82] This problem with the CMCHA 2007 has however been largely minimised by the Accessories and Abettors Act 1861 (AAA 1861), section 8 of which stated that liability can indeed be imposed upon the individual members of a company. The immunity of individuals from liability due to section 18 CMCHA 2007 has therefore been made an exception rather than a norm due to section 8 AAA 1861. The operation of these two sections in practice has ensured that the focus of the CMCHA 2007 targets corporate as opposed to individual criminal liability. Moreover, it is not likely to legitimise the extension of such immunity to managing members and directors, and thus does not have an extremely negative impact on the Act's ability to impose corporate criminal liability.[83]

A further criticism of the CMCHA 2007 is that its approach towards sentencing is not focused, does not seek to effectively enforce compliance, and does not recognise the gravity of the offences contained therein.[84] This was revealed in the judgement of Cotswold Geotechnical (Holdings Ltd).[85]The company was convicted of manslaughter, yet was fined a mere £385,000, which was actually lower than the minimum suggested fine in the sentencing guidelines.[86] This lenient sentence strongly suggests that the CMCHA 2007 does not adopt a sufficiently robust response towards corporate crime.[87] However, it is important to recognise that this single case example may not necessarily be indicative of the Act's application since it was first implemented. Several other cases have been tried under the Act. The first company to be acquitted under the Act was PS and JE Ward Ltd,[88] whose employee was killed after a trailer he was towing hit a power cable. It was held that the employee had been given sufficient training, which was furthermore relevant to the circumstances surrounding his death. It had been found that the employee had not undertaken the task according to instructions and therefore the company could not be held liable for his death. Interestingly, the company was convicted under the HSWA 1974 for the failure to 'ensure, so far as is reasonably practicable, the health, safety and welfare at work' of its employees.[89] The company was, under this Act fined almost £100,000. This indicates that the HSWA 1974 functions as an alternative mechanism for the imposition of corporate criminal liability when CMCHA 2007 requirements are not satisfied. Cavendish Masonry Ltd[90] was convicted in 2014 of corporate manslaughter under the CMCHA 2007 when an employee was crushed by a block of limestone. It was held that the company had grossly breached its duty of care in organising and managing the work site, and had not taken reasonable care when executing activities on site. Such cases strongly suggest that convictions are increasingly being made under the CMCHA 2007, and that it is effective in holding companies accountable.

While companies have been convicted under the CMCHA 2007, sanctions remain problematic. A particularly problematic decision is Mobile Sweepers (Reading) Ltd,[91] in which a company employee had been crushed to death. Although the company was convicted of corporate manslaughter, it was fined a mere £8,000. Where the Act has strength in convicting companies, it suffers weaknesses when it comes to sanctions. Fines are low in comparison to the gravity of the offence of corporate manslaughter, which undermines the seriousness of such offences and hinders the rigour of the CMCHA 2007. This problem further serves to emphasise the uncomfortable relationship between punishing and convicting corporate crime. While it is possible to try and convict corporate entities in the same manner as individuals, companies cannot be incarcerated. Imposing fines is problematic because this category of sanctions does not mirror the criminal characteristics of the offence of manslaughter. It implies that human life can be valued at a monetary amount – something that the traditional criminal law does not generally accept.

On the other hand, it could be argued that the CMCHA 2007 has yet to be applied to cases in which a large company has caused death. This strongly suggests that fines that have thus far been given under the CMCHA 2007 represent the size of the company. Moreover, fines are not the only available sanction. The courts have more recently displayed a willingness to impose alternative, harsher sanctions upon convicted companies. This may be observed in Peter Mawson and Peter Mawson Ltd[92] in which an employee fell through a skylight and died. The company was fined a mere £220,000, yet, for the first time, a publicity order was also imposed under section 10 CMCHA 2007. This meant that the company was required to publish information about its conviction in the local newspaper and on its website. This case indicates that the courts have gradually increased the severity of the sanctions that they impose, which lays testimony to its potentially aggressive response to corporate manslaughter.[93] Publicity orders can be highly damaging on a company's reputation, because it can result in boycotting and severely reduced profits.

The CMCHA 2007 essentially appears to have established a suitable balance between the need to hold companies accountable, and the need to overcome difficulties posed by corporate crime.[94] Indeed, it has been recognised that the conviction and punishment of companies for criminal offences is intrinsically problematic because a high threshold is involved in attaching liability to corporate activities. A company may only be held criminally liable if it can be shown that the individuals directing the mind and will of the company participated in the commission of the offence.[95] It is typically difficult to identify an individual who directs the company's mind and will, and this is particularly the case if a company is multinational, with complex, dispersed systems of decision-making. It could be argued that such problems are the source of the unsuitably low-gravity range of sanctions that have been given following a sanction under the CMCHA 2007.[96] The punishment of a collective corporate entity fails to embody the seriousness of the actions of individuals that constitute the company's mind and will. It is moreover relevant to point out that the CMCHA 2007 is rather unfair for small companies, because the directors of such companies are much more likely to have played a more central role in the decision-making process, and thus the offence.[97] This may explain why the majority of convictions under the Act have been for smaller companies. Larger companies may escape the scope of the Act, because it is much more difficult to identify the individuals that direct their mind and will. Their hierarchical structures and decision-making processes are considerably more complex, rendering it difficult to assign blame to specific individuals.[98] The CMCHA 2007 could, in this respect, be said to have failed to have adopted a consistent approach towards small and large companies, with the consequence that the latter have proven able to avoid its ambit. This could encourage larger companies to develop corporate structures designed to conceal their decision-making processes in order to render it all the more difficult to locate individuals that direct their mind and will.

Despite the aforementioned weaknesses, the CMCHA 2007 has gathered considerable ground in imposing criminal liability upon companies for conduct resulting in death. The threshold of the Act has most prominently been set lower than the standard that is generally expected of directors. It is also not necessary for the prosecution to prove that the conduct of individual company members resulted in particular failures. It is sufficient that the company's management collectively failed to take sufficient care, and that this constituted a substantial proportion of the failure resulting in death. It is no longer the case that companies can cause death without legal repercussions. 

Individual and Collective Responsibility: A Critique of the Law

Thus far, basic criticisms of the law have been presented, which must be explored in more detail in order to form the basis for reform proposals. Prior to such elaboration, the theoretical foundations of corporate crime must be outlined, for they serve to legitimise the imposition of liability upon collective entities for criminal conduct. This pertains to, and will assist in developing an approach that strikes a suitable balance between collective and individual liability.

The identification doctrine was developed as a result of the courts' attempt to solve the problem of attributing the mens rea of criminal liability to the collective corporate structure.[99] Corporate entities are unable to 'think' per se, meaning that the courts would identify an individual directing the company's 'mind and will'.[100] The identification doctrine was applied by the courts to all offences that were not rooted in vicarious liability. The location of an individual who directs the mind and will of the company is based on the justification that it is such individuals who cause their companies to act in the fashion that results in the commission of the criminal offence. Although this seems to be an effective approach towards the imposition of corporate criminal liability, it has its weaknesses. The endeavour to identify a sole individual who controls the company's mind and will is arguably to approach the issue of corporate liability in an unrealistic and narrow manner.[101] This is due to the fact that it does not recognise that company decisions and actions are often dispersed, and developed and implemented by a number of individuals. This problem has become emphasised as an increasing number of companies are becoming larger, and even operating on a transnational level. For such companies, decisions are divided between several individuals, with different degrees of authority.[102] This renders it extremely difficult to identify a sole, responsible individual, because larger companies have unclear hierarchies. This means that it is not always possible to locate with certainty an individual that made, or substantially participated in, a particular decision.

Assuming it is indeed possible to identify an individual directing the mind and will of a company, the prosecution must then prove that the individual can be convicted for the additional components of gross negligence manslaughter.[103] Such components include death following a duty of care, which was breached by the defendant, and which posed a significant risk. These elements are notoriously difficult to prove, particularly in cases concerning larger companies, as it is almost impossible to hold individuals criminally liable if they have made, but not implemented a decision.[104] Clearly then, the elements of the identification doctrine do not bridge the gap between corporate crime and traditional principles of criminal law.[105]

An alternative may be located in tort law, which seeks to avoid and ease the problems posed by the identification doctrine. The tortious aggregation doctrine is based on the notion that the criminal elements of mens rea and actus reus can be attributed to companies as collective entities, enabling them to be held liable for criminal conduct. In identifying the aggregate fault of several individual faults that would otherwise lack the requisite mens rea, the aggregation doctrine attributes criminal responsibility to the company.[106] The solves problems that plague the need to identify a single responsible individual under the identification doctrine. The aggregation principle was initially applied under criminal law,[107] although it was eventually abolished.[108] This is due to problems that weaken the effectiveness of the aggregation doctrine. For example, it has been deemed inefficient because it does not have a deterrent impact. This is due to the fact that it does not provide an advance warning to companies about what they can do to minimise the risk that they will be held criminally liable. Moreover, it does not attach a sufficient degree of importance to, or address the conditions leading to, the offence. For instance, the commission of a corporate crime need not essentially result from the individual fault of company members, but may be due to an overall failure of a company's policies and systems.

The problems surrounding the aggregation principle resulted in the use of the identification doctrine under UK law for gross negligence manslaughter. In particular, the UK courts expressed a clear reluctance to develop an alternative approach to the identification doctrine.[109] This caused the courts to adopt a rather limited approach towards corporate criminal liability, and meant that companies could only be convicted of crimes in limited cases and in relation to serious offences.[110] This limited application of the identification doctrine has been heavily criticised, mainly by the courts. In Meridian Global Funds Management Asia Ltd v Securities Commission,[111] Lord Hoffman redirected focus towards whether or not 'the act (or knowledge, or state of mind) was for this purpose intended to count as the act of the company'.[112] It was necessary to show that the individual have been authorised by the company to make decisions that resulted in the crime. This meant that criminal responsibility could be imposed upon companies without the need for those running them to have made the final decisions leading to the commission of the crime.

While this approach may appear to be effective, it has been pointed out that this approach is problematic because 'it still requires an individual to be identified within the corporate structure whose acts and knowledge can be attributed to the company'.[113] It has moreover been recognised that,

'while corporations are only metaphysical entities, this does not prevent them being culpability-bearing agents who, through their rules, policies and operational procedures can exhibit the requisite degree of mens rea and be blamed therefore'.[114]

This statement establishes a distinction between the individual decisions and actions of company members, and the overall structure of company systems and policies that resulted in such decisions and actions. This approach avoids the problems that plague the identification doctrine, because it promotes an extreme application of the aggregation doctrine.[115] Therefore, it may be proposed that such an approach would eliminate current weaknesses in the law, and would moreover evade the need to implement a complete overhaul of corporate criminal law.[116] This supports the claim that an important distinction between decisions made by individuals, and decisions made as a result of company policies must be made. This would operate to set a vital boundary between individual liability, and collective liability – not only in cases concerning manslaughter, but in relation to all corporate crimes.

The law as it currently stands is problematic because it does not adopt a principled or consistent approach towards corporate crime. This is most prominent in the context of corporate manslaughter, despite the fact that a single statute concerning this offence exists. The law appears to embody a large variety of approaches towards corporate manslaughter, resulting in the imposition of liability on individual company members for unlawful acts or gross negligence, or on the company as a collective entity. The latter approach is based on a duty of care, though this principle does appear to be somewhat illogical when applied to corporate crime. The CMCHA 2007 also operates to segregate the actions of individual company members from the company itself, and provides no clear principles for when individuals and the company as a collective entity should be held responsible.

Could such problems be rooted in the duty of care component of corporate manslaughter? It has been suggested that proof of a duty of care is now obsolete, and that it thus has no relevant role in the CMCHA 2007. It could be proposed that the duty of care requirement is no longer necessary because individuals and companies could already be said to be subject to the duty to not kill another. Moreover, this could be said to feature as an intrinsic component of the duties that directors owe to the company, in that they are required to act in the company's best interests. Evidently, to make and implement decisions that run a high risk of causing death would not be in the best interests of a company.[117] This produces the need to inject simplicity into the law on corporate manslaughter, so that where a company's conduct falls substantially below what may be reasonably expected, and this results in the death of another, a duty of care does not need to be proven. The need to prove the existence of a duty of care simply operates to furnish directors with a potential loophole enabling them to escape liability, and directs focus away from the need to identify the company's role in the incident. Whether or not a duty of care could be said to exist in the context of corporate manslaughter is arguably not relevant, because it is ultimately the actions of the individual company member, and/or the company itself that resulted in death.[118] To focus on anything other than this simple point is to hinder the ability of the law to effectively and legitimately convict those responsible for corporate manslaughter.

It has been briefly stated that the core fault element for corporate manslaughter is a 'gross breach' of a duty.[119] This means that conduct must have fallen substantially 'below what could reasonably have been expected of the organisation in the circumstances'.[120] However, there is often a lack of clarity surrounding what can and should be expected of companies in specific situations, and some ambiguity surrounds the extent to which a company must fall from a reasonable expectations in order to be held to have committed a gross breach of a duty. Problems materialise when one seeks to identify the exact conditions that may be considered relevant in examining whether or not liability should be imposed. For instance, could it be deemed reasonable to include within this category the increased profitability that usually accompanies the imposition of lower standards of health and safety?[121] Section 8 CMCHA 2007 addresses this, in that it requires that the court assess the relationship between a company's gross breach of a duty, and its failure to comply with health and safety regulations.[122] The court can also consider and attach importance to company systems or policies that would be likely to have, or did, contribute to the breach.[123] However, this would cause the base standard to be placed much lower than, for instance, evidence that a company systematically failed to organise its affairs in a suitable fashion. Such an approach seeks to avoid the inclusion within its scope of failures if individual managing members, whereas the CMCHA 2007 enables the court to identify and assess the failures of individual members. Arguably, this is not consistent with the CMCHA 2007's ultimate principle: that it does not allow individuals to be convicted for corporate manslaughter.

Such problems appear to be caused by inaccurate terminology contained in the 2007 Act, as well as the unclear approach that it adopts towards corporate criminal liability. Although the Act seeks to avoid a situation in which companies may be held liable for death that has been caused by their members, this is not clearly evident in the Act's terminology. In this respect, it should have either completely committed to the imposition of individual or collective liability, and specified the conditions that could give rise to each. This approach was adopted in Italian Decree 231/2001, which will be outlined in greater detail in the following chapter.

A further problem with the CMCHA 2007 is that it requires that the company's managing members have been the cause, rather than a cause of death. The former requirement operates to restrict the scope of corporate manslaughter, because it suggests that, if a particular individual's act or omission forms the immediate cause of death, then liability cannot be imposed upon the company. This stance does not acknowledge that, while an individual may have committed the final act causing death, this act could constitute a part of management failures that contributed to, and was hence a cause of death. This operates to distort the relationship between corporate crime and directors' duties. The CMCHA 2007, in light of this observation, does not account for the fact that death in such cases may be the cause of errors at a senior level, as well as the act(s) of subordinate company members. The traditional tests of causation do not sit comfortably with corporate crime, because failures are typically too far, both in time and space, from the occurrence of harm. Despite such an issue, the CMCHA 2007 roots causation within previous judicial decisions, which have been heavily criticised on the grounds that they are inconsistent and confusing.[124]

A further problem with the 2007 Act is that it adopts a narrow approach towards corporate crime. This is because it focuses purely on manslaughter, and therefore ignores other forms of corporate criminal conduct. It instead should have adopted more of a wholesale approach towards corporate crime, and applied to all forms of corporate criminal conduct. Corporate grievous bodily harm could for instance have been included in the Act – this occurs much more frequently than corporate manslaughter.[125] The fact that corporate manslaughter does not occur very frequently means that the CMCHA 2007 is too far removed from the reality of corporate functioning. This essentially means that it could be more financially feasible for companies to take health and safety risks, because it would be likely to be more cost effective on a long-term basis. An example of this is when Ford Motor Company decided that it would not recall its Ford Pintos after it was revealed that their petrol tanks had a high risk of exploding.[126] A cost-benefit analysis revealed that it would be more profitable to risk paying compensation and damages for injuries and deaths, than to recall the faulty cars.[127] This indicates that the CMCHA 2007's narrow approach is limited in deterring corporate crime.

While it is evident that companies can be convicted of the offences that individuals can be convicted of, the core problem resides in the need to modify elements of criminal offences so that they apply to collective entities.[128] Although the Act seeks to impose criminal liability on companies, it could have addressed the need to hold individual company members liable, in accordance with, for instance, the extent to which their actions contributed to the death. To focus on the liability of the company is to fail to address the fact that individual company members may have contributed to the commission of a corporate crime. Therefore, the CMCHA 2007 fails to create a link between corporate crime and individual company members. Moreover, this feature of the Act is in direct conflict with the HSWA 1974, which states the opposite to the rule that a company can be convicted of corporate manslaughter, but not individual company members.[129] Under section 37 HSWA 1974, criminal liability can be imposed upon both the company and its members when a criminal offence that has been committed by a company through the 'consent, connivance' or 'neglect' of a managing member. A loophole has materialised between these two legal rules, which allows individuals who knowingly participate in corporate manslaughter to avoid liability. This is because individual members can shield themselves from liability purely on the grounds that they were simply acting under company policy. This is however unrealistic, because it does not recognise the fact that, company policy is almost always drafted and/or reviewed by the management. Directors are indeed under a duty to remain constantly aware and familiar with the company's policies and activities. To impose such a duty, and to then decline to impose individual liability on such members for corporate manslaughter, distorts the overall foundations of corporate criminal law.

A Reformed System of Corporate Liability

One of the main debates that arises in the context of corporate crime is essentially whether individual or collective liability may be considered more effective and appropriate. This also relates to the extent to which the corporate entity may be defined as a person. Under the CMCHA 2007, the corporate culture is mentioned, which can be considered by the jury in determining whether or not a gross breach of a duty has taken place.[130] This seeks to justify the shift away from individual responsibility towards collective responsibility, in that it searches for evidence of 'attitudes, policies, systems or accepted practices…that were likely to have encouraged' or enabled the gross breach to occur.[131] This section of the CMCHA 2007 only operates once it has been found that an individual or a company has violated a health and safety provision. It is revealing to compare the approaches adopted by the CMCHA 2007 and the HSWA 1974. While the former states that a jury is able to consider a company's culture, the latter requires that this must be considered.

Much debate surrounds whether individual company members should be held liable for complying with and/or participating in company policies resulting in manslaughter. Although it could be argued that individual liability would promote maximum compliance with the law, there is theoretical ambiguity surrounding the extent to which individuals should be held liable for the company's actions.[132] This issue is particularly problematic because it is a long-standing principle of company law that a company is distinct to its members.[133] Should the same approach be adopted in the context of corporate criminal law, or should the corporate veil be entirely demolished in order to hold individual company members liable? One could argue that the divide between individual and collective liability is an unavoidable consequence of the confusing relationship between traditional concepts of criminal law and corporate crime. On the one hand, the company is ultimately constituted of its members, and therefore the exclude criminal liability for them is to undermine the traditional notion of criminal liability, which is individualistic.[134] It moreover fails to promote compliance, because company members protected by the corporate veil are not deterred from engaging in negligent conduct, particularly if such conduct maximises profits. On the other hand, it is increasingly argued that 'companies should be liable for the same offences as individuals and subject to the same normal principles of criminal liability'.[135] Therefore, it is no longer possible to accept that companies are fictional entities that are comprised of their members. Companies are in fact real, powerful actors, whose actions can have a huge impact upon society. Alternatively, it has been proposed that the conviction and punishment of companies causes innocent shareholders to suffer the consequences of criminal sanctions.[136] However, such a statement fails to recognise certain important points. For example, it fails to acknowledge that it is company shareholders that benefit from dangerous yet profitable company policies that are geared towards maximising shareholder profits. Additionally, the core value of the concept of separate corporate personality is that it exists as a distinct legal entity to its shareholders. This means that shareholders are not personally liable for criminal sanctions that are imposed upon companies – they will only lose equity in their shares. Shareholders can profit considerably from corporate criminal activities, and it is therefore acceptable to states that they should suffer losses arising from the sanctioning of the company.

An alternative argument is that the imposition of liability upon powerful company members for complying with a company's commission of a criminal offence can bring a variety of advantages. Firstly, it would assign blame where it should belong in the majority of cases. It would also prevent individual members of the company from seeking protection beneath the corporate veil, particularly as managing members are required to remain aware of the company's policies and activities. Thus, to state that the corporate entity rather than its members should be held criminally liable fails to recognise that the company is essentially a puppet, the strings of which are held by its members.[137] The fact that the company is not able to guide its actions or form its own intentions means that it lies at the mercy of those who control it. To hold company members immune from liability is to assign responsibility to an abstract entity, with no legitimate basis or practical purpose.[138] In order for corporate criminal law to have a practical impact, it is imperative that individual liability be imposed. This would achieve much in enforcing compliance with the law, and reinforcing the importance and impact of directors' duties.

A dual approach towards criminal liability appears to have been made under the CMCHA 2007, because it targets the systematic failures of company members, and imputes the offence to the company itself. This recognises that deaths may often be caused by companies as a result of the cumulative effect of inappropriate company policies, and the acts and omissions of more than one company members.[139] In referring to senior managing members, the 2007 Act seems to embody the aggregation doctrine, at the very least indirectly. Furthermore, it establishes a link between the management and individual company members who play an important role in the implementation of company decisions.[140] It is however not clear whether an employee's wrongful acts may be identified as a wrongful act that amounts to a substantial amount of the breach for the purpose of section 1(4) CMCHA 2007. Alternatively, it may be pointed out that the CMCHA 2007 eliminates the need to identify a specific company member who has committed manslaughter. At the very least, this could be defined as a significant improvement upon the identification doctrine. This indicates that the imposition of a hybrid type of individual/collective liability is arguably the most desirable approach towards corporate crime. It establishes a compromise between the need to identify individual actors who form a part of the broader corporate structure. The CMCHA 2007 on the other hand seems to retain some aspects of the identification doctrine. This is because it attaches greater importance to individual rather than systemic fault. This creates uncertainty in relation to who may be said to have played a significant role in the implementation of the corporate policy that caused death. It is still not clear the degree to which an individual must participate in decision-making before his role may be identified as significant.[140] There is also a lack of clarity surrounding the proportion of a company's activities that a company member must be involved for the 'substantial part' requirement to be satisfied. This is a particularly problematic issue when death results from failings that have occurred on a number of different levels.

The CMCHA 2007's impact seems to be only marginally positive. It has most prominently concretised the principle that a company is capable of committing serious criminal offences. This demonstrates that its impact is more symbolic than practical. However, symbolism is not to be underestimated. The CMCHA 2007 has, at the very least, eroded the pre-existing notion that death caused at work is usually the result of an accident. The 2007 Act has strengthened the notion that such deaths can be attributed to companies, who are under a duty to prevent the conditions that result in work-related deaths.[141] The CMCHA 2007 could therefore be said to have created a clear distinction between corporate behaviour that is acceptable and that which is unacceptable. In drawing this distinction, it focuses on the decisions and actions of individual company members, groups of company members, and the company itself as a collective entity.

It is helpful to consider how criminal responsibility is imposed upon companies under other jurisdictions, as this would provide important guidance on how the law in the UK could be reformed.[142] The most important law in this respect is Italian Legislative Decree 231/2001, prior to which there was no existing mechanism for the imposition of responsibility upon companies for the criminal conduct of their company employees in Italy. Employees would typically be held individually responsible for criminal conduct, which meant that companies themselves could not be convicted of crimes. Under Legislative Decree 231/2001, companies can be held liable for crimes that have been committed by their managing members and their subordinates. Such liability arises from the fact that such members have acted on behalf of the company, provided the criminal act in question was committed for the benefit of the company.[143] The Decree sets out a comprehensive list of criminal acts that a company may be convicted of.[144] Although the Decree is not directed specifically towards corporate manslaughter, this crime can be found amongst others on the list. The CMCHA 2007, in stark contrast, focuses solely on corporate manslaughter.

The Decree's operation in practice reveals much about its strengths. It was for instance triggered following the Costa Concordia incident, in which many people were killed and injured after a cruise ship sank.[145] The captain was blamed because he had deviated from the ships initial navigational route, and this was exacerbated by his abandoning of the ship while it was sinking. The captain had derogated rom the planned route in order to enable guests to view a 'near shore salute', which caused the ship to strike a reef and sink.[146] The captain was given a 16-year prison sentence. Decree 231/2001 imposes two distinct types of corporate criminal liability.[147] Firstly, vicarious liability is imposed when a head of a company has committed an offence. This replicates the identification doctrine as it has been applied in the UK. Secondly, negligence is found when a company has failed to consider the risk of an offence occurring, and has not implemented mechanisms designed to avoid it. This type of corporate liability is based on the principle of organisational fault.[148] Both types of liability may be rebutted if the company is able to prove that it exercised due diligence. The test for due diligence depends on the type of liability that has arisen. Under Article 5 of the Decree, offences committed by the managing members,[149] and those committed by subordinate members[150] is distinct. It does not therefore exclude the ability for an individual to be held liable, regardless of their position in the company. This embodies a principle that is clearly lacking in the CMCHA 2007, and which serves to highlight the strength of the Decree in comparison to the 2007 Act. The Decree, unlike the CMCHA 2007, is not thwarted by the need to identify an individual who manages the company's mind and will. This moreover supports the claim that the 2007 Act should enable a company, and its individual members as distinct categories, to be convicted. This would eliminate the need for a company convicted of manslaughter to make a distinct claim against a company member under alternative statute.

Article 5 of the Decree allows a company to be held liable in a broad variety of situations, even when a majority shareholder who has influence over the company's policies commits an offence. The decree in this respect is much broader than the CMCHA 2007, enabling it to apply in a wider array of situations than the 2007 Act. The Act is too narrow because it targets members that comprise the company's mind and will, and focuses solely on manslaughter. The broadness of the Decree is protected against unfair convictions, particularly when individual members commit actions that are based on company policy.[151] Article 5(1)(b) enables liability to be imposed when a subordinate staff member commits an offence that corresponds to company policy, or that is the result of the company's structural negligence. The Decree therefore recognises all circumstances pertaining to corporate crime, and distinguishes between criminal acts committed by the management, subordinate members, and those arising from structural negligence and company policy. It can therefore be considered more effective at deterring corporate crime in comparison to the CMCHA 2007. In forming the basis for reform of UK law, the Decree indicates that a single statute could provide for the imposition of both individual and collective liability in the realm of corporate crime, depending upon the particular facts of each case.[152]

Conclusions

A number of conclusions may be drawn following the above analysis. It is firstly evident that the law on corporate manslaughter in the UK is unduly narrow, in that it protects individual company members from liability. This distorts the concept of corporate liability, because it fails to recognise that a company's actions are essentially implemented by its members. To hold companies, but not their members, accountable for corporate crimes achieves little in terms of deterring such conduct. This is because company members will not be deterred from using the corporate structure to commit crimes if they know that they cannot be held personally responsible. The fact that corporate crime is dispersed throughout various legislative statutes has also caused the law to become 'impenetrable and ambiguous'.[153]

The CMCHA 2007 has gathered ground in holding companies accountable for corporate manslaughter. It however adopts a confusing approach, because it focuses on individual company members, yet only provides for the criminal liability of companies as a whole. It could be argued that this disjointed approach towards corporate manslaughter is merely the consequence of the uneasy relationship between the individualistic roots of criminal liability, and the collective corporate structure.[154] While the concept of corporate crime does pose problems for the criminal law, the manner in which the Italian Decree imposes liability indicates that this should not hinder an informed approach. The Italian Decree provides a basis for reform of the CMCHA 2007, in that it allows for both individual and collective responsibility to be imposed, where necessary and justifiable. The CMCHA 2007 should therefore allow for individual company members to be held liable, if their actions indicate a derogation from company policy. Such an amendment would prevent company members from shielding their actions beneath the corporate veil, and inject legitimacy and logic into the law on corporate manslaughter.

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Cavendish Masonry Ltd (2014) Oxford Crown Court, unreported.

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Northern Strip Mining Construction Co Ltd (The Times, 2,4,5 February, 1965).

Peter Mawson and Peter Mawson Ltd (2015) Preston Crown Court, February 3, unreported.

Pittwood (1902) 19 TLR 37.

PS and JE Ward Ltd (2014) Norwich Crown Court, unreported.

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Tesco Supermarkets Ltd v Nattrass [1972] AC 153 HL.

Legislation

Corporate Manslaughter and Corporate Homicide Act 2007

Decree 231/2001 (Italian)

Health and Safety at Work Act 1974

Management of Health and Safety Regulations 1999

Footnotes

[1] B Fisse, 'Reconstructing corporate criminal law: Deterrence, retribution, fault, and sanctions' [1982] 56 SCLR 1141, 1143.

[2] C Wells, Corporations and Criminal Responsibility (2^nd edn, OUP 2001) 88-89; LH Leigh, The Criminal Liability of Corporations in English Law (Littlehampton Book Services 1969) ch. 2.

[3] A Ashworth, Principles of Criminal Law (6^th edn, OUP 2009) 146.

[4]Salomon v Salomon & Co Ltd [1896] UKHL 1.

[5]Lee v Lee's Air Farming (1961) AC 12; Macaura v Northern Assurance (1925) AC 619.

[6] S Tombs & P Almond, 'Corporate manslaughter and regulatory reform' [2014] 61 CLSC 5, 590.

[7]Northern Strip Mining Construction Co Ltd (The Times, 2,4,5 February, 1965).

[8] S Tombs & D Whyte, 'Introduction to the Special Issue on 'Crimes of the Powerful'' [2015] 54 HJCJ 1, 4.

[9] WG Carson, The Other Price of Britain's Oil: Safety and Control in the North Sea (Robertson 1981) 269-289; MD Ermann & RJ Lundman. Corporate deviance (Holt, Rinehart, and Winston 1982) 148.

[10] B Lewis & S Woodward, 'Corporate criminal liability' [2014] 51 ACLR 923, 930.

[11] TH Morris, 'Too Big to Jail: The Lack of Suitable Culpability Elements in the Criminal Liability of Principals' [2014] 9 BJCFCL 335, 338.

[12] J Arlen, 'Corporate criminal liability: Theory and evidence' in Research Handbook on the Economics of Criminal Law (A Harel & K Hylton eds, Edward Elgar 2012) 13-14.

[13] P Szawarski, 'Classic Cases Revisited: Medical Manslaughter, Corporate Liability and the Death of Sean Phillips' [2014] 15 JICS 2, 119.

[14] M Clinard & P Yeager, Corporate crime (Vol. 1, Transaction Publishers 2011) 110.

[15]Anonymous Case (No. 935) 88 ER 1518, KB 1701, Lord Holt, [118].

[16] VS Khanna, 'Corporate Criminal Liability: What Purpose does it Serve?' [1996] 109 HLR 7, 1479.

[17] B Fisse & J Braithwaite, 'The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability' [1986] 11 SLR 468, 471.

[18] London School of Economics and Political Science, The criminal liability of corporations in English law (Weidenfeld & Nicolson 1969) 4.

[19] JP Locker & B Godfrey, 'Ontological boundaries and temporal watersheds in the development of white-collar crime' [2006] 46 BJC 6, 988.

[20]City of London (1882) St Tr 1039, [1138].

[21] H Hansmann & R Kraakman, 'The End of History for Corporate Law' [2000] 89 GLJ 439, 442.

[22] KF Brickey, 'Corporate criminal accountability: A brief history and an observation' [1982] 60 WULQ 393, 398.

[23]Birmingham and Gloucester Railway (1842) 3 QB 223.

[24] DC Korten, 'When corporations rule the world' [1998] 98 EBR 1, 12.

[25] VS Khanna, 'Corporate Criminal Liability: What Purpose does it Serve?' [1996] 109 HLR 7, 1510.

[26] CMV Clarkson, 'Kicking Corporate Bodies and Damning their souls' [1996] 59 MLR 4, 562.

[27] D Fennell, Investigation into the King's Cross Underground Fire: CM 449 (Department of Transport 1988) 120, 184-185.

[28] G Slapper, 'Corporate Homicide and Legal Chaos' [1999] 149 NLJ 1031, 1034; N Cavanagh, 'Corporate Criminal Liability: An Assessment of the Models of Fault' [2011] 75 JCL 414, 417-418.

[29] L Cullen, Public Inquiry into the Piper Alpha Disaster: CM 1310 (Stationery Office 1990) 58-61.

[30] HSWA 1974, s. 1.

[31] A Holt & H Andrews, Principles of health and safety at work (Institution of Occupational Safety and Health 1999) 5.

[32] AR Hale, BHJ Heming, J Carthey & B Kirwan, 'Modelling of safety management systems' [1997] 26 SS 1, 126.

[33] HSWA 1974, s. 2(1)(a), (c) & (d).

[34] HSWA 1974, s. 3(1) &(2).

[35]Pittwood (1902) 19 TLR 37.

[36] N Lewis, 'Health and Safety at Work Act 1974' [1975] 12 MLR 442, 445.

[37]Associated Octel Co Ltd (1996) 1 WLR 1543.

[38]Board of Trustees of the Science Museum (1993) 1 WLR 1171.

[39]British Steel (1995) 1 WLR 1356.

[40] Management of Health and Safety Regulations 1999, Regulation 21.

[41]Nelson Group Services (Maintenance) Ltd (1999) 1 WLR 1527.

[42]Austin Rover Group Ltd v HM Inspector of Factories (1990) 1AC 619.

[43]Boal (1992) 3 All ER 177 outlines managing members that can be held liable under section 37 HSWA 1974.

[44] R Johnstone, M Quinlan & D Walters, 'Statutory occupational health and safety workplace arrangements for the modern labour market' [2005] 47 JIR 1, 110.

[45] HSWA 1974, s. 1.

[46] D Walters, 'One step forward, two steps back: Worker representation and health and safety in the United Kingdom' [2006] 36 IJHS 1, 98.

[47] P James & D Walters, 'Worker representation in health and safety: Options for regulatory reform' [2002] 33 IRJ 2, 150.

[48] M Beck & C Woolfson, 'The regulation of health and safety in Britain: From old Labour to new Labour' [2000] 31 IRJ 1, 43.

[49] P Almond & S Colover, 'Communication and Social Regulation: The Criminalization of Work-Related Death' [2012] 52 BJC 5, 999.

[50]Davies v Health and Safety Executive [2002] EWCA Crim 2949.

[51] Ibid., [122].

[52] A Dobson, 'Section 37 of the Health and Safety at Work Act 1974-re-invigorated' [2013] 55 IJLM 2, 146.

[53] V Howes, 'Duties and liabilities under the Health and Safety at Work Act 1974: A step forward?' [2009] 38 ILJ 3, 311.

[54] G Stessens, 'Corporate criminal liability: A comparative perspective' [1994] 43 ICLQ 3, 505.

[55] M Hsiao, 'Abandonment of the Doctrine of Attribution in Favour of Gross Negligence Test in the Corporate Manslaughter and Corporate Homicide Act 2007' [2009] 30 CL 4, 110-111.

[56] D Ormerod, Smith and Hogan's Criminal Law (13^th edn, OUP 2011) 258.

[57] M Hsiao, 'Abandonment of the Doctrine of Attribution in Favour of Gross Negligence Test in the Corporate Manslaughter and Corporate Homicide Act 2007' [2009] 30 CL 4, 110-112.

[58] P Almond, 'Understanding the seriousness of corporate crime: Some lessons for the new 'corporate manslaughter' offence' [2009] 9 CCJ 2, 155.

[59] J Gobert, 'The Evolving Legal Test of Corporate Criminal Liability' in Corporate and White Collar Crime (J Minkes & L Minkes eds, Sage 2008) 67-68.

[60]Bolton (Engineering) Co Ltd v TJ Graham & Sons Ltd [1956] 3 All ER 624.

[61] Ibid., [89].

[62] H Croall, Understanding White Collar Crime (Open University Press 2001) 130.

[63] A Reiss & A Biderman, Data Sources on White Collar Lawbreaking (National Institute of Justice 1980) 77.

[64] CMV Clarkson, 'Kicking Corporate Bodies and Damning their souls' [1996] 59 MLR 4, 569; AP Simester, JR Spencer, GR Sullivan & GJ Virgo, Simester & Sullivan's Criminal Law: Theory and Doctrine (4^th edn, Hart 2010) 280.

[65] CMCHA 2007: s. 1(2) includes a corporation, a partnership, a trade union or employer's association.

[66] Individuals will however be liable under the common law of gross negligence manslaughter, and under existing health and safety legislation.

[67] J Gobert, 'The Corporate Manslaughter and Corporate Homicide Act 2007–Thirteen Years in the making but was it worth the wait?' [2008] 71 MLR 3, 421-422.

[68] R Craig, 'Corporate Manslaughter - Thou Shall do no Murder: A Discussion Paper on the Corporate Manslaughter and Corporate Homicide Act 2007' [2009] 30 CL 1, 18.

[69] RC Slye, 'Corporations, Veils, and International Criminal Liability' [2007] 33 BJIL 955, 959.

[70] A Dobson, 'Shifting Sands: Multiple Counts in Prosecutions for Corporate Manslaughter' [2012] 3 CLR 201, 208.

[71] D Ormerod, Smith and Hogan's Criminal Law (13^th edn, OUP 2011), 571.

[72] C Wells, Corporations and Criminal Responsibility (2^nd edn, OUP 2001), 552.

[73] L Jones & S Field, 'Crime–Corporate Manslaughter' [2011] 1 BLR 79, 83.

[74] G Bebb, 'Plus Ce Change?' [2006] 68 ELJ 22, 24.

[75] J Reason, 'Understanding Adverse Events: Human Factors' [1995] 4 QHC 80, 87; G Forlin & L Smail, Corporate Liability: Work Related Deaths and Criminal Prosecutions (Bloomsbury 2010) 85.

[76] S Jones & L Field, 'Corporate criminal liability for manslaughter: The evolving approach of the prosecuting authorities and courts in England and Wales' [2011] 4 BLR 80, 88.

[77] CMCHA 2007, s. 1(3).

[78] K Gibson, 'Toward an Intermediate Position on Corporate Moral Personhood' [2011] 101 JBE 1, 75-76.

[79] CMV Clarkson, 'Kicking Corporate Bodies and Damning their souls' [1996] 59 MLR 4, 572.

[80] C Wells, 'Corporate Criminal Liability in England and Wales: Past, Present, and Future' [2011] 9 IGCPLJ 91, 105.

[81] A Hicks & SH Goo, Cases & Materials on Company Law (7^th edn, OUP 2011) 99-102.

[82]Merchandise Transport v British Transport Commission (No.1) [1962] 2 QB 173; Creasey v Breachwood Motors Ltd [1993] BCLC 480; Jones v Lipman [1962] 1 WLR 832; Adams v Cape Industries [1990] 2 WLR 657.

[83] P Almond, 'Regulation Crisis: Evaluating the Potential Legitimizing Effects of 'Corporate Manslaughter Cases' [2007] 12 LP 29, 285.

[84] P Almond, 'Understanding the seriousness of corporate crime: Some lessons for the new 'corporate manslaughter' offence' [2009] 9 CCJ 2, 149.

[85]Cotswold Geotechnical (Holdings) Ltd [2011] ALL ER (D) 100 (May).

[86] Sentencing Guidelines Council, Corporate Manslaughter and Health and Safety Offences Causing Death (SGC 2010) [24].

[87] J Gobert, 'The Evolving Legal Test of Corporate Criminal Liability' in Corporate and White Collar Crime (J Minkes & L Minkes eds, Sage 2008) 421.

[88]PS and JE Ward Ltd (2014) Norwich Crown Court, unreported.

[89] HSWA 1974, s. 2(1).

[90]Cavendish Masonry Ltd (2014) Oxford Crown Court, unreported.

[91]Mobile Sweepers (Reading) Ltd [2014] Winchester Crown Court, 26/2/2014, unreported.

[92]Peter Mawson and Peter Mawson Ltd (2015) Preston Crown Court, February 3, unreported.

[93] B Haigh, An analysis of the Corporate Manslaughter and Corporate Homicide Act (2007): A Badly Flawed Reform? (PhD diss., Durham University 2012) 43.

[94] S Field & L Jones, 'Five years on: The impact of the Corporate Manslaughter and Corporate Homicide Act 2007—plus ça change?' [2013] 24 ICCLR 6, 240.

[95] L Price, 'Finding fault in organisations–reconceptualising the role of senior managers in corporate manslaughter' [2014] 12 LS 32, 36.

[96] S Tombs, 'Still killing with impunity: Corporate criminal law reform in the UK' [2013] 11 PPHS 2, 75.

[97] P Almond, Corporate manslaughter and regulatory reform (Palgrave Macmillan 2013) 82.

[98] M Punch, 'The organizational component in corporate crime' in European Developments in Corporate Criminal Liability (J Gobert ed, Routledge 2011) 103.

[99] D Hanna, 'Corporate Criminal Liability' [1988] 31 CLQ 452, 466.

[100]Tesco Supermarkets Ltd v Nattrass [1972] AC 153 HL.

[101 T Archibald, K Jull & K Roach, 'The changed face of corporate criminal liability' [2004] 48 CLQ 367, 369.

[102] J Gobert, 'The Evolving Legal Test of Corporate Criminal Liability' in Corporate and White Collar Crime (J Minkes & L Minkes eds, Sage 2008) 77-78.

[103] PH Bucy, 'Corporate Ethos: A Standard for Imposing Corporate Criminal Liability' (1990) 75 MLR 1095, 1099.

[104] E Colvin, 'Corporate Personality and Criminal Liability' [1995] 6 CLF 1, 6-7.

[105] C Wells, 'Corporate Criminal Liability in England and Wales: Past, Present, and Future' [2011] 9 IGCPLJ 91, 99.

[106] E Lederman, 'Models for Imposing Corporate Criminal Liability: From Adaptation and Imitation toward Aggregation and the Search for Self-Identity' [2000] 4 BCLR 641, 644.

[107]Birmingham and Gloucester Railway (1842) 3 QB 223.

[108]A-G's Ref (No.2 of 1999) [2000] QB 796.

[109] J Braithwaite & B Fisse, 'On the plausibility of corporate crime theory' in Advances in criminological theory (F Adler ed, Transaction Publishers 1990) 18-20.

[110] GR Sullivan, 'The Attribution of Culpability to Limited Companies' [1996] CLJ 515, 542.

[111]Meridian Global Funds Management Asia Ltd v Securities Commission (1995) 2 AC 500.

[112] Ibid., [205].

[113] CMV Clarkson, 'Kicking Corporate Bodies and Damning their souls' [1996] 59 MLR 4, 564.

[114] Ibid., 566.

[115] E Lederman, 'Models for Imposing Corporate Criminal Liability: From Adaptation and Imitation toward Aggregation and the Search for Self-Identity' [2000] 4 BCLR 641, 653-655.

[116] B Fisse & J Braithwaite, 'The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability' [1986] 11 SLR 468, 471.

[117] NP Beveridge, 'The Corporate Director's Duty of Care: Riddles Wisely Expounded' [1990] 24 SLR 923, 925.

[118] P Almond, 'Understanding the seriousness of corporate crime: Some lessons for the new 'corporate manslaughter' offence' [2009] 9 CCJ 2, 160.

[119] CMCHA 2007, s. 1(1)(b).

[120] CMCHA 2007, s. 1(4)(b).

[121]F Howe & Sons (Engineering) Ltd [1999] 2 All ER 249.

[122] PR Glazebrook 'A Better Way of Convicting Businesses of Avoidable Deaths and Injuries' [2002] 61 CLJ 405, 410.

[123] CMCHA 2007, s. 8(3)(a).

[124] HLA Hart & T Honore, Causation in the Law (2^nd edn, OUP 1985) 67-70.

[125] J Gobert, 'The Corporate Manslaughter and Corporate Homicide Act 2007–Thirteen Years in the making but was it worth the wait?' [2008] 71 MLR 3, 422.

[126] SL Hills, Corporate violence: Injury and death for profit (Rowman & Littlefield 1987) 24.

[127] M Punch, Dirty Business: Exploring corporate misconduct: Analysis and cases (Sage 1996) 23-24.

[128] J Gobert, 'Corporate criminality: Four models of fault' [1994] 14 LS 393, 398; C Wells, 'Corporate Manslaughter: Why does Reform Matter?' (2006) 123 SALJ 648, 650.

[129] F Wright, 'Criminal Liability of Directors and Senior Managers for Deaths at Work' [2007] CLR 949, 951.

[130] P Almond, Corporate manslaughter and regulatory reform (Palgrave Macmillan 2013) 222.

[131] CMCHA 2007, s. 8(3)(a).

[132] J Arlen & R Kraakman, 'Controlling Corporate Misconduct: An Analysis of Corporate Liability Regimes' [1997] 72 NYULR 687, 689.

[133] R Grantham, 'The Corporate Veil: An Ingenious Device' [2013] 32 UQLJ 311, 315.

[134] C Wells, 'Corporate Criminal Liability in England and Wales: Past, Present, and Future' [2011] 9 IGCPLJ 91, 105.

[135] CMV Clarkson, 'Kicking Corporate Bodies and Damning their souls' [1996] 59 MLR 4, 570.

[136] AW Alschuler, 'Two Ways to Think About the Punishment of Corporations' [2009] 46 ACLR 1359, 1366.

[137] JD Greenberg & EC Brotman, 'Strict Vicarious Criminal Liability for Corporations and Corporate Executives: Stretching the Boundaries of Criminalization' [2014] 51 ACLR 79, 82.

[138] J Arlen, 'Corporate criminal liability: Theory and evidence' in Research Handbook on the Economics of Criminal Law (A Harel & K Hylton eds, Edward Elgar 2012) 18-19.

[139] M Punch, 'The organizational component in corporate crime' in European Developments in Corporate Criminal Liability (J Gobert ed, Routledge 2011) 78.

[140] S Tombs & D Whyte, The Corporate Criminal: Why Corporations Must be Abolished (Routledge 2015) 89.

[141] S Eldar, 'Exploring International Criminal Law's Reluctance to Resort to Modalities of Group Responsibility: Five Challenges to International Prosecutions and their Impact on Broader Forms of Responsibility' [2013] 11 JICJ 2, 346.

[142] J Gobert, 'The Politics of Corporate Manslaughter—The British Experience' [2005] 8 FJLR 1, 12.

[143] L Jones & S Field, 'Crime–Corporate Manslaughter' [2011] 1 BLR 79, 83-84.

[144] A Castaldo & G Nizi, 'Entity Liability and Deterrence: Recent Reforms in Italy' [2007] 1 ELER 1, 4-5.

[145] These include bribery, terrorism, financial crimes and market abuse.

[146] TA Dickerson, 'The Cruise Passenger's Rights and Remedies 2014: The COSTA CONCORDIA Disaster: One Year Later, Many More Incidents Both on Board Megaships and during Risky Show Excursions' [2013] 38 TMLJ 515, 519.

[147] B Weiser, 'Costa Concordia Jail Sentences' [2013] JAMA 310, 276.

[148] J Gobert & E Mugnai, 'Coping with Corporate Criminality: Some Lessons from Italy' [2002] 1 CLR 619, 621.

[149] J Gobert, 'Corporate criminality: Four models of fault' [1994] 14 LS 393, 399.

[150] Decree 231/2001, Article 5, paragraph 1(a)

[151] Decree 231/2001, Article 5, paragraph 1(b).

[152] S Maffei & IM Betsos, 'Crime and Criminal Policy in Italy Tradition and Modernity in a Troubled Country' [2007] 4 EJC 4, 477.

[153] A Castaldo & G Nizi, 'Entity Liability and Deterrence: Recent Reforms in Italy' [2007] 1 ELER 1, 6.

[154] L Snider, '"This Time we Really Mean It": Cracking Down on Stock Market Fraud' in International Handbook of White-Collar and Corporate Crime (HN Pontell & G Geis eds, Springer 2008) 40-41.

[155] C Wells, 'Corporate Criminal Liability in England and Wales: Past, Present, and Future' [2011] 9 IGCPLJ 91, 15.