Corporate Manslaughter and Criminal Liability in the Desklib Case Scenario

This article discusses the elements of corporate manslaughter and criminal liability in the Desklib case scenario. It explores the violations of health and safety regulations, duty of care, and senior management activities. The article also examines the potential penalties and remedies for corporate manslaughter. Additionally, it analyzes the criminal liability of Michel for fraud, obstruction of justice, and bribery.

ANSWER TO QUESTION ONE
CORPORATE MANSLAUGHTER
Michel and his veterinary company business by the name Dogs Domestiques Limited (DD Ltd)
case scenario raises quite a number of issues related to Corporate Manslaughter. The issues arise
after the death of an employee while at work due to subjection to a dangerous working
environment. The case scenario raises a number of elements proving corporate manslaughter by
DD Ltd. The elements to be proved are in line with Corporate Manslaughter and Corporate
Homicide Act of 2007(CMCHA) and the Healthy Safety Executive (HSE)1 agency guidelines
and requires as to health and safety at work place. The elements and criminal liability of the
company under an offence of corporate manslaughter is discussed below in details;
The scenario raises several violated requirements of laws. The Pressure Systems Safety
Regulations Requires frequent inspections of pressure equipment such as autoclaves as specified
in the written scheme of examination of the equipment.2 Failure to do so is putting the employees
who operate such system at risk. Michel violated this requirement by cancelling the inspection
due to fear that the machine will be rendered unfit to operate and that he would continue making
loses. In the process he puts the nurse under risk and indeed the worst happens causing the death
of the nurse. His company should therefore be held liable for corporate manslaughter.
Michel ignores HSE guidance and warning on failed pressure equipment. The HSE directive is
very clear by explaining that such Faulty pressure equipment like Michel’s Conclave could cause
serious injuries, death or damage to nearby properties. The guidance goes ahead to state the
safety conditions of using such machines. An employer has a duty to provide safe working
conditions to his employees. Michel vehemently violated this duty and allowed his employee to
be exposed to danger and eventually death. He is therefore Liable for breach of this duty.
Section 1 of the Corporate Manslaughter and Corporate Homicides Act establishes an offence of
corporate manslaughter to hold organisations accountable for serious omissions and commissions
resulting to death. CMCHA abolished the offence of gross negligence manslaughter in relation to
companies and other organisations. The reason for the above abolition of common law offence of
1 Health Safety Executive is a government Agency ensuring that Health and safety conditions of employees are
observed at the work place by employers. https://www.hse.gov.uk
2 The pressure Systems Safety Regulations 2000 r 9 a subsidiary legislation see also www.legislation.gov.uk

negligence manslaughter on organisations was the requirement of proving a controlling mind
responsible for gross negligence. The above requirement was known as identification principle
which was illustrated in the case of R v P&O Ferries Ltd.3 one of the elements of corporate
manslaughter is that the defendant must fall within the organisations mentioned under CMCHA.4
The category of such organisations include corporations, state departments and bodies listed
under schedule 1, trade unions, partnerships police force, employers’ organization that is also an
employer.
The second element is duty of care5 owed to victims by the company and gross breach of that
duty by the organization.6 Duty of care arises from the relationship between the parties for
example employer-employee relationship and the common law principle of tort of negligence as
it was held in the case of Caparo Industries v Dickman.7 The prosecutors must also prove that
the reckless conduct arising from breach was the cause of death as it was illustrated in the case of
R v Hennigan.8 In another case of R v Hughes9 the court decided that the gross breach need not
be the main or the only cause but must have had a substantial contribution to death.
Other elements include the manner in senior management activities were conducted including,
selection and staff training, health and safety conditions, staff supervision and working
environment system operations. The only instance where the company may not be held liable is
where the risk was occasioned by a junior staff. Liability will only arise after analyzing the
failing of the organization as a whole and not a particular staff. Section 18 of CMCHA further
provides that an individual cannot be held liable for an offence of corporate manslaughter. The
aim of CMCHA is to hold the organization liable as a juristic person.
Going by the above discussed elements, DD Ltd is liable for the offence of manslaughter as a
legal artificial person pursuant to section 1 and 2 of the CMCHA since the management owed a
duty of care to the employees. There was gross violation of that duty when the management
failed to inspect the autoclave and allowed the nurse to operate it in its faulty state.
3 R v P&O Ferries (Dover) Ltd (1991) 93 Cr App. R. 72
4 Corporate Manslaughter and Corporate Homicide Act 2007 s 1(2)
5 Corporate Manslaughter and Corporate Homicide Act 2007 s 2(1)
6 Corporate Manslaughter and Corporate Homicide Act 2007 s 1(4)(b)
7 Caparo Industries v Dickman (1990) 2 AC 605
8 R v Hennigan (1971) 3 All ER 133
9 R v Hughes (2014) 1 Cr App R 6

The deceased’s family should therefore sue DD Ltd as a corporate entity for corporate
manslaughter in accordance with sections 1 and 2 and obtain remedies which are in form of fines
upon conviction of the company. The Sentencing Advisory Council came up with definitive
sentencing guidelines which were published and came to effect on 1st February 2016. According
to the guidelines, the level of fine charged depend on the size and turnover of the organization.
The sentencing council set a range of between 180,000 British sterling pounds to 20 million
pounds. The court can also make other appropriate orders of compensation and restitution to the
victims.10 The above discussed penalties were evidenced in a recent case of R v Pyranha
Mouldings Ltd11 whereby the Company was charged with Corporate Manslaughter after the death
of a supervisor who was trapped in an oven with no escape points and alarm systems and
eventually died. The company was fined 200,000 pounds and costs of 90, 000 pounds from its
turnover. The amount was spread over a period of 12 months since the judge noted from the
evidence presented in court that the company was struggling financially.
ANSWER TO QUESTION TWO
CRIMINAL LIABILITY OF MICHAEL
The case scenario between Michael and the insurance Company raises critical issues and
offences sanctioned by criminal penalties. Michel’s failure to disclose the condition of the
autoclave, attempt to frustrate the police and HSE investigations and hotel luxury experience
offer to Yasmin raises elements of fraud, obstruction of justice through evidence destruction,
bribery among other crimes as discussed below;
Fraud
Fraud is a criminal offence defined under Fraud Act 2006 as misrepresentation of facts or truth
with an intention to deceive one party in a contract hence making the deceived party incur losses
or suffer consequences. The offence of fraud is divided into false representation of facts, failing
to disclose information and abuse of trust or fiduciary position.12 The International Association
of Insurance Supervisors (IAIS) defines insurance fraud as an omission or commission intended
to confer illegal benefits to the insured. IAIS guidance paper further proceeds by stating that
10 Sentencing Advisory Council Definitive Guidelines on Corporate Manslaughter 2016
11 R v Pyranha Mouldings Ltd (2014) EWCA Crim. 533;[2014] 2 Cr, App. R. (S) 43
12 Fraud Act 2006 s 2-4

insurance fraud can be achieved through different ways such as misappropriation of the insured
assets, deliberate concealing or misrepresentation of facts relating to insured current financial
status or any other important information hence violating the principle of utmost good faith.13
The elements required to prove fraud are; the fraudster must have acted dishonestly with intent to
have a personal gain or cause loss to the other party. Michel particularly committed the offence
of fraud by failing to disclose information to the insurance company yet he was under a legal
duty to tell the company about the condition of the autoclave although it had not been inspected
by the engineer as required by the company.14 He also committed fraud by false representation
when he tried make fake invoice to show that the amount of inspection fee had been paid to the
engineer and inserted the same in his accounts.15
The case of Regina v Raja and Jonaade Hussain16 illustrates the offence of insurance fraud
crime, manslaughter and attempted bribery of the jury. In this case, the accused persons were
being tried for manslaughter and fraud resulting from a staged motor accident to defraud an
insurance company whereby innocent third parties sustained fatal injuries while person died. The
accused had arranged for fire alarm to be ringed and in the process of evacuation, his aides
bribed the jurors 500 pounds but the jurors informed the judge who dismissed the jury and
proceeded with case evidence alone. Several individuals were arrested charged and sentences
with a conspiracy to pervert the course of justice. Each of the accused people was given a
different kind of sentence ranging from 15years to 1 month depending on each individual’s
circumstances of involvement in the conspiracy.
Michel therefore acted dishonestly and had an intention to gain benefits which were obtaining
compensation for legal fee incurred in investigations illegally while causing loss to the insurance
company. The above scenario presents a prima facie case of fraud with all elements present.
Upon conviction, Michel is liable to a jail term not exceeding ten years or a fine or both
Perverting the course of justice
13 International Association of Insurance Supervisors (IAIS) Guidance paper on preventing, detecting and remedying
fraud in insurance 2006 https://www.iaisweb.org
14 Fraud Act 2006 s 3
15 Fraud Act 2006 s 2(1-3)
16 Regina v Raja and Jonaade Hussain and others (unreported case 2016), UK Bribery Digest edition of 12 March
2018 https://www.ey.com

Obstruction of justice by tampering with evidence is a common law offence in England and
Wales. It constitutes the following three elements; fabrication or disposal of evidence, witness
and juror intimidation or threatening and finally intimidation and threatening the judge. The
offence could be a committed action to defeat the ends of justice or an attempt to do so. The
attempt to pervert the course of justice is treated the same as the committed offence and it is not
an inchoate crime but rather an indictable offence charged in the crown courts. The word
‘attempt’ should appear in the charge since the offence is tried pursuant to common law and not
Criminal Attempts Act of 1981 as it was held in the case of R v Williams17
If not so serious it is considered a common law misdemeanor constituting of telling lies to police
officers or other officers of the court. The case of R v Vreones18 highlighted the ingredients that
must be proved by the prosecutor in order for his or her to have a water-tight case. in the above
case, the defendant had tampered with a sample of wheat to be used in an arbitration and he was
accused of perverting the course of justice the ingredients include; acting or embarking on a
course of conduct; such course of conduct must be having a tendency or is intended to defeat the
end of justice or pervert the course of justice.
Justice must be on it course at the time when the obstructing act is committed. The course of
justice is said to be proceeding immediately when an event that will require investigations occurs
or the investigations that will result to trial are continuing or trial proceedings have already
commenced and continuing. In the case of R v Cotter19, it was held that where the prosecution
case is that of a false allegation made to police or other investigative agencies, the prosecution is
only required to prove that the person making the false allegation had an intention that the police
will take the false allegations seriously.
Giving false information to the police with intent to frustrate the inquiry and investigation
constitutes the offence of perverting the course of justice. Michel’s Act of feeding the amount for
a fake invoice into the accounting system of the company was meant to confuse the investigating
police officers and Health and Safety Executive officers so that they conclude that the autoclave
had indeed been examined by the engineer before the ill-fated act of death. His actions amounts
to fabrication of evidence giving false information to police officers with intent to defeat or
17 Regna v Williams (1923) 1 KB 340
18 Regina v Vreones (1891) 1 QB 360, 60 LJMC 62
19 Regina v Cotter and others (2002) EWCA Crim 1033

rather obstruct justice by preventing the investigative agencies from finding the truth. His
offence is an indictable-only kind of offence charged at the crown courts. Upon conviction,
Michel is liable to a maximum sentence of life imprisonment for perverting the course of justice.
The sentence may vary depending on the seriousness of the crime as outlined in the General
Charging Practice Guidance and Charging Standard for Public Justice Offences Legal
Guidance.20
Private commercial bribery
According to Bribery Act, this kind of offence arises when an individual offers or promises to
offer a financial benefit or any other advantage to another person in respect of the bribe payer
intending the advantage to cause the bribed person to conduct an improper performance of
certain functions. The advantage advanced could also be a payment for an already done improper
performance.21
In the United Kingdom case of Desmond Tough,22 Mr. Tough a valuation officer met with
property buyers and got engaged in a scum to knock down property prices including houses
exchange of a sum of money so the properties could be valued at a cheaper price than the
required one. He received more than 2000 pounds in the process but those took money from
raised complaints with the legal teams of the city council and housing associations. Mr. Tough
was summoned questioned and arraigned in court. He admitted to 8 counts of bribery and was
sentenced to 18months of imprisonment
From the above definition and elements of private commercial bribery, it is very clear that
Michel committed a Private commercial bribery crime by making the offer of staying at his
parent’s luxurious hotel in France to Yasmin who is the loss adjuster in the insurance company.
In return for the offer Yasmin was to keep quiet on the information he got from the engineer who
was supposed to examine the autoclave as required by the Insurance Company. Michel’s offer to
Yasmin constitutes a bribe to make Yasmin conduct an improper performance of her function
and breach her duty of due diligence to the insurance company.
20 General Charging Practice Guidance and Charging Standard for Public Justice Offences Legal Guidance; a
guideline formulated by crown prosecution service as a subsidiary legislation https:// www.cps.gov.uk legal
guidance
21 Bribery Act 2010 s1
22 R v Desmond Tough (unreported 2017) UK Bribery Digest edition of 12 March 2018 https://www.ey.com

The briber offer although made by Michel while outside the United Kingdom and residence in
France at the time of making the offer he is still liable. The liability still accrues because the
Bribery Act of 2010 applies extra-territorially to deal with acts of bribery committed outside the
United Kingdom.23 Michel is therefore liable for private commercial bribe pursuant to section 1
of the Bribery Act of 2010. Before Michel is prosecuted, section 10 of the Bribery Act requires
seeking of consent from two important state offices. These are the Director of Public
Prosecutions Office (DPP) and the Director of the Serious Fraud Office (DSFO). A personal
consent is totally different from other consents which are delegated by the DPP to Crown
Prosecutors. This type of consent is approved personally by the bearers of the above stated
offices. This requirement shows the serious nature of bribery crimes in United Kingdom. The
penalty for Michel’s Crime is imprisonment for a period not exceeding ten years or an unlimited
fine or both. The fines are calculated in accordance to Sentencing Council Definitive Guidelines
for Fraud, Bribery and Money Laundering.
Michel will therefore have to be prosecuted for all the three crimes since they are not alternatives
to each other. He will be sentenced or fined according to each crime and the get the total amount
of fine that he will pay or the total years of incarceration. He committed an offence of insurance
fraud when he made a false representation to the insurance company. He has also committed the
offence of perverting the course of justice by giving to give the police officers wrong impression
about the examination of the autoclave. Finally he committed the offence of commercial bribery
by making an offer to Yasmin in return of a favour from Yasmin. Though the commercial
bribery offence was committed while in France, the Bribery Act covers a wider scope including
extra-territorial application to curb acts of corruption committed internationally.
References
Roper, Victoria (2018) The Corporate Manslaughter and the Corporate Homicide Act 2007; A
ten-year review: The Journal of Criminal Law, 82 (1), pp.48- 75 published by SAGE
23 Bribery Act 2010 s 12(2)

The Law Commission, Criminal Law, Offences Relating to Interference with the Course of
Justice, Law Com. No.96, Report Laid before Parliament by the Lord High Chancellor Pursuant
to Section 3(2) of the Law Commission Act 1965, Her Majesty Stationery Office London
UK Bribery Digest, Forensic and Integrity services Edition of 12 March 2018