Corporate manslaughter is a crime in several jurisdictions, including England and Wales and Hong Kong.[1] It enables a corporation to be punished and censured for culpable conduct that leads to a person's death. This extends beyond any compensation that might be awarded in civil litigation or any criminal prosecution of an individual (including an employee or contractor). The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect in the UK on 6 April 2008.
Theory
Clarkson identifies six theories of corporate manslaughter:
- Identification doctrine;
- Aggregation doctrine;
- Reactive corporate fault;
- Vicarious liability;
- Management failure model; and
- Corporate mens rea.
Identification doctrine
This approach holds that the offence of corporate manslaughter is made out when an individual commits all the elements of the offence of manslaughter and that person is sufficiently senior to be seen as the controlling mind of the corporation. Prior to the Corporate Manslaughter and Corporate Homicide Act 2007, this was how the law applied in England and Wales.
Aggregation doctrine
This approach, known in the U.S. as the collective knowledge doctrine, aggregates all the acts and mental elements of various company employees and finds the offence if all the elements of manslaughter are made out, though not necessarily within a single controlling mind.
Support and criticism of the concept
Clarkson identifies four valuable characteristics of criminal prosecution:
However, the existence of such a crime has been criticised, especially from the point of view of law and economics, which argues that civil damages are a more appropriate means of compensation, recognition of the loss suffered and deterrence.[5] Such arguments emphasise that, because the civil courts award compensation commensurate with the damage done, they apply the appropriate level of deterrence.[6]
Again, such arguments contend that "over-deterrence" may divert resources from other socially beneficial activities.[7]
A further strand of criticism holds that only individuals can commit crimes.[8] Further, it is individuals who feel the threat of deterrence. In England in 1994, OLL Ltd. were convicted of corporate manslaughter over the Lyme Bay kayaking tragedy and
By jurisdiction
United Kingdom
- Corporate manslaughter (England and Wales)
Australia
Several states and territories recognise the crime of Industrial manslaughter. The Australian Capital Territory has provisions for industrial manslaughter introduced in 2004.[10] In 2017, industrial manslaughter became an offence in Queensland in their workplace health and safety legislation, the Work Health and Safety Act 2011. Despite the offence existing in four jurisdictions as of 2020, there have been no successful prosecutions.
In New South Wales on 16 September 2024, the crime of Industrial Manslaughter came into effect following the passage of the Work Health and Safety Amendment (Industrial Manslaughter) Act 2024 earlier that year.[11] Provisions for industrial manslaughter were demanded by the trade union movement after the adolescent building industry worker
See also
- Corporate crime
- Judicial dissolution
- Capital punishment
Bibliography
References
- Jackson, Michael (2003), Criminal law in Hong Kong, p.400, Hong Kong University Press.^
- Fisse (1983), Fisse & Braithwaite (1988, 1994)^
- Ragozino (1995)^
- Rose (1995)^