Corporate Manslaughter: A Comparative Analysis of Laws and Liabilities

This essay provides a comprehensive overview of corporate manslaughter, exploring its definition and legal frameworks in the UK, Australia, and the US. The essay begins by defining corporate manslaughter as a criminal offense committed by a company or organization, highlighting the different jurisdictions that recognize it and the various theories associated with it. The discussion then delves into the specific laws and regulations in Australia, differentiating between the federal Criminal Code Act and the varying state adoptions, with a particular focus on the inactive format in South Australia. The essay also examines the UK's approach, including the Corporate Manslaughter and Corporate Homicide Act 2007 and the Bribery Act 2010, while also addressing criticisms and legal principles. Finally, the essay investigates the US perspective on corporate criminal liability, including the roles of federal and state governments, the distinction between voluntary and involuntary manslaughter, and the application of gross negligence tests. The conclusion summarizes the different approaches and their effectiveness.

Corporation Law A

Contents
INTRODUCTION...........................................................................................................................1
Overview of Corporate Manslaughter.........................................................................................1
Corporate Manslaughter in Australia...........................................................................................2
Adoption of Corporate Manslaughter in South Australia............................................................3
Corporate criminal liability in the UK.........................................................................................4
Corporate criminal liability in the US.........................................................................................5
CONCLUSION................................................................................................................................6
REFERENCES................................................................................................................................8

INTRODUCTION
Corporate manslaughter is a crime that ultimately leads to killing of an individual in certain
circumstances which did not demanded any harmful activity. Hence, the activity is measured in
the periphery of unlawful killing. The essay makes a rigorous discussion regarding the laws,
rules and regulations that have been adopted by UK and Australia1. Moreover, regulations
followed by rest of Australia except South Australia will also be analysed in the essay. In the
end, in order to make the knowledge regarding the subject matter concrete, various pros and cons
of adoption of this concept will also be discussed in the essay.
Overview of Corporate Manslaughter
Corporate manslaughter is considered to be a criminal offence. It is an act of homicide that
is generally committed by any company or organization. There are various jurisdictions that
consider it as a crime, such as, Wales, English and Hong Kong. The jurisdiction has right to
punish the individual whose act has led to any individual’s death. Based upon the intensity of the
crime being committed, the punishment can be extended from compensation to criminally
prosecuting the individual. Basically, there are six theories that are related to corporate
manslaughter2. These are, Identification of doctrine, aggregation doctrine, reactive corporate
fault, vicarious liability, management failure model and corporate mens rea3. The level and
method of committing crime is quite different in various cases. Hence, it can be state that,
corporate manslaughter is a type of crime that has been committed by the individual in the form
of killing a person in certain circumstances that do not amount to murder. In this case, the
corporation is held liable for the activity if it was involved in the case.
Various countries whose adoption of the law have also criticized the act as well. They have
stated that the laws and compensation that has been adopted by this act is not effective enough
and hence compensation with the help of civil law would have been rather more effective in such
1 Griffin, S. and Moran, J., 2010. Accountability for deaths attributable to the gross negligent act or omission of a
police force: The impact of the corporate manslaughter and corporate homicide act 2007. The Journal of Criminal
Law, 74(4), pp.358-381.
2 Almond, P., 2013. Corporate manslaughter and regulatory reform. Palgrave Macmillan.
3 Rowbottom, J., 2013. To punish, inform, and criticize: The goals of naming and
shaming. Media and Public Shaming: Drawing the Boundaries of Disclosure, p.1.
1

cases. One of the researcher have discussed that four valuable characteristics of adoption of
criminal prosecution law as it has been stated in corporate manslaughter. These are:
 It helps in taking stronger prosecution against the criminal and hence protect from taking
any unreasonable action over unprotected doubt.
 It acts as a powerful agency which has the aim to have adequate amount of laws and
provisions that can implement adequate health and safety measures in the organization. \
 It helps in controlling the stigma that is related to criminal activities as well.
 It plays a symbolic role where it helps in sending appropriate message regarding criminal
activities to the society4.
The above-mentioned elements help in understanding that corporate manslaughter can
also act as an effective method that can help in maintaining, reducing and regulating criminal
activities that takes place in the organization.
Corporate Manslaughter in Australia
Australian have been an active country in order to make adequate laws regarding
prosecution of manslaughter so that criminal activities being conducted by the companies can be
reduced to minimum. In this scenario, division 12 of federal Criminal code act, 1995, helps in
briefing the laws that are surrounded corporate criminal responsibility. Section 12.1 of the
Criminal code act stated that the law is applied to the corporate in the similar form as it is applied
to the corporate. Crimes are not only related to only physical elements but also other faulty
factors as well, such as mens rea which is symbolized through guilty mind.
As per the amendment brought in the act in 2003 states that, an employer is responsible
for committing an offence if a worker of the employer dies in the course of employment or have
got severely injured. Moreover, death or injury caused die to negligence of the employer can also
bring him into scrutiny.
After analysing the above paragraph, it could have been clear in the minds that corporate
manslaughter is applicable in Australia. However, the case is not that straight. The acts help in
allowing take the criminals in the offence based upon the criminal acts that can be performed by
officers, agents and employees. The issue lies in the statement of section 12.1 of the Criminal
4 Tombs, S., 2013. Still killing with impunity: corporate criminal law reform in the
UK. Policy and Practice in Health and Safety. 11(2). pp.63-80.
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Act 1995 where, it states that the corporate can be found guilty based upon any offence that has
been conducted5. However, the term 'any offence' only include the list of offences that have been
included in the federal legislation. Manslaughter is considered to be the provision that can be
followed by the state and not the federal. Hence, in that scenario, a corporation can be treated
guilty only if relevant states have adequate provisions and have adequate similarity with that of
the rules and regulation being mentioned in federal legislative6. Moreover, the provision is not
yet active in the whole of Australia, since it is not applicable and has not been adopted by the
south of the country. The controversies running around the act regarding its adoption due to
unframed laws makes it difficult to be adopted in a well-defined manner. However, it is only
partially followed by the rest of the country as well. Hence, it can be stated that Australia have
been able to adopt the legislations of corporate manslaughter in quite an inactive format.
Adoption of Corporate Manslaughter in South Australia
It has affected the overall incorporation of the act. Adoption of same kind of law in
South Australia as that it has been followed by the other territories of Australia is quite a difficult
activity. Since, its adoption in other countries is quite partial and hence require better formation
of rules, regulations and legislations7. Grasping the act more firmly is required to be done by the
law makers. However, its partial adoption has helped in reducing the crime rates in the
corporations of Australia. Employers have become more vigilant regarding what has policies
have been adopted by them and keep an over the activities and performance of the workers.
5 Ndekugri, I., 2013. The consulting engineer and corporate manslaughter
risk. Proceedings of the Institution of Civil Engineers-Management, Procurement and
Law. 166(3). pp.128-136.
6 Muchlinski, P., 2012. Implementing the new UN corporate human rights framework:
Implications for corporate law, governance, and regulation. Business Ethics
Quarterly. 22(1). pp.145-177.
7 Corporate manslaughter laws in Australia. 2018. [Online]. Available through
<https://www.lynnandbrown.com.au/corporate-manslaughter-laws-in-australia/>.
3

Corporate criminal liability in the UK
At UK this is one of the well-established principle in which it is recognized to be a
distinct legal entity and a person is separate from those working in the corporation. In this
context, firm will not be liable if any offence is committed by individuals who purporting to act
in their name. On the other hand, determining any firm is guilty towards any type of offense, it
totally depends upon construction of offence and path for any given offence8. With time there are
two of the legislations that that helped in resolving the historical difficulties of getting companies
sued for the criminal acts that were performed by workers. They are as follows:
Corporate manslaughter (Corporate Manslaughter and Corporate Homicide Act 2007):
In accordance with this act, it creates offence by which activities organization causes a person’s
death. This way, it is the type of gross breach of relevant duty of care which is owned by
deceased by the firm.
Bribery Act 2010: It was introduced to enhance or update UK law on bribery that
concludes foreign bribery so as to address requirements of 1997 OECD anti-bribery Convention.
There are four different type of offences that are included in it and they are as follows:
 2 of the general offences who cover the offer promises or provide benefit, agreeing, to
receive or request an advantage.
 Officer of discrete of foreign public official9.
 Failure through new offence by commercial firm in order to prevent bribes being paid to
retain or to obtain business advantage.
Apart from this, there two of the legal principles through which a firm prosecute criminal
offences:
 Non-vicarious liability that are applied under identification principle in order to offences
which are included for mental element within their definition.
 Vicarious liability is applied principally towards offence in which no requirement to
prove mental element.
The type of crime that is raised is been criticised and this is more specific form the view point of
law and economics that argues that damages related with civil most effective means of
8 Griffin, S. and Moran, J., 2010. Accountability for deaths attributable to the gross negligent act or omission of a
police force: The impact of the corporate manslaughter and corporate homicide act 2007. The Journal of Criminal
Law, 74(4), pp.358-381.
9 Capaldi, N., Zu, L. and Gupta, A.D. eds., 2013. Encyclopedia of corporate social responsibility (Vol. 21). New
York: Springer.
4

recognition for the loss deterrence and suffered. With this respect, these arguments emphasise as
civil courts provides award compensation commensurate for the damages that has occurred10.
Through criminal liability, it causes society to bear higher sanctioning cost for increase in cost
and stigma penalties for deterring corporate misbehaviour that are developed by procedural
protection of criminal law.
There are four valuable characteristics for criminal prosecution and they are as follows:
 This is most powerful enforcement agencies like Health and Safety Executive in UK.
 Main role for the criminal law is that this just needs to send the message to society.
 Censure and stigma which follow from conviction
 There are strong procedural protections of corporations like proof beyond reasonable
doubt.
Another type of criticism that it holds is that one an individual can commit crimes. This
way, it can be stated that only individuals can feel threat of deterrence. For example, OLL Ltd
was convicted of corporate manslaughter on Lyme Bay Kayaking tragedy11. As a result he was
fined of £60,000 and director of the firm was convicted of 3 years imprisonment. Further, it can
be stated that a firm can be a veil for the activities of individuals which easily liquidated that do
not have any reputation to protect. When companies have to pay fines ultimately this punishes
customers, employees and stakeholder rather than culpable managers.
Corporate criminal liability in the US
All the responsibilities related with criminal justice and criminal laws in US are share
between federal and state government. Manslaughter is considered to be crime in US12. However,
the definitions can get vary among jurisdictions. In this context, general principles are followed
by US that manslaughter consists of death of a person that is caused in manner less culpable then
murder. Further, it also observes distinction between involuntary and voluntary manslaughter.
The offence of corporate manslaughter is done by firm. Liability can be caused from the
side of directors or senior management and the employees can not be held liable. As per the law,
10 Wells, C., 2011. Corporate criminal liability in England and Wales: Past, present, and future. In Corporate
Criminal Liability (pp. 91-112). Springer, Dordrecht.
11 Brennan, W., 2010. Safer lone working: assessing the risk to health professionals. British Journal of Nursing,
19(22), pp.1428-1430.
12 Ndekugri, I., 2013. The consulting engineer and corporate manslaughter risk. Proceedings of the Institution of
Civil Engineers-Management, Procurement and Law, 166(3), pp.128-136.
5

government, directors should be held liable for corporate manslaughter that is causes criticism of
management. In addition to this, the director can also be prosecuted under existing health and
safety legislation in which personal conduct can be shown for an offence13. In conditions when
individuals need to be prosecuted, then it has to be done under the common law offence of gross
negligence manslaughter. This way, it can be stated that the law would have been more effective
if common law test for gross negligence manslaughter need to be incorporated in to the act. This
is same as the first branch of test and similarities can be drawn. In addition to this, gross
negligence test have the effort of increasing prosecution rates as per the rate on which
government need to be attained14. Unlimited fine was imposed to develop deterrent effect on
large firms who are financially punished to significant damaging extent. However, it is in
effective when fine is imposed to large companies as the total amount that they have to pay is
easily done by them. This way, there is not much of the impact that is faced by large companies.
On the other hand, when talking about small companies in which the rate of grow is low. When
they are fined with penalties, then it has high negative impact15. This way, the law is effective
only for those firm who fail to pay as they are the one who get highly effective through it.
CONCLUSION
In accordance with the findings, it can be stated that with time there are different type of
laws that are applied or adopted developed by the government. This is done so that health society
can be developed in which people are protected. The law, followed at some part of Australia are
not effective. There are certain areas that are getting benefited with it but strict laws need to be
made to make it acceptable at South Australia.
13 Gobert, J. and Pascal, A.M. eds., 2011. European developments in corporate criminal liability. Taylor & Francis.
14 Brennan, W., 2010. Safer lone working: assessing the risk to health professionals. British Journal of Nursing,
19(22), pp.1428-1430.
15 Tombs, S., 2013. Still killing with impunity: corporate criminal law reform in the UK. Policy and Practice in
Health and Safety, 11(2), pp.63-80.
6

REFERENCES
Books and journals
Almond, P., 2013. Corporate manslaughter and regulatory reform. Palgrave Macmillan.
Brennan, W., 2010. Safer lone working: assessing the risk to health professionals. British
Journal of Nursing, 19(22), pp.1428-1430.
Capaldi, N., Zu, L. and Gupta, A.D. eds., 2013. Encyclopedia of corporate social responsibility
(Vol. 21). New York: Springer.
Gobert, J. and Pascal, A.M. eds., 2011. European developments in corporate criminal liability.
Taylor & Francis.
Griffin, S. and Moran, J., 2010. Accountability for deaths attributable to the gross negligent act
or omission of a police force: The impact of the corporate manslaughter and corporate
homicide act 2007. The Journal of Criminal Law, 74(4), pp.358-381.
Muchlinski, P., 2012. Implementing the new UN corporate human rights framework:
Implications for corporate law, governance, and regulation. Business Ethics
Quarterly. 22(1). pp.145-177.
Ndekugri, I., 2013. The consulting engineer and corporate manslaughter risk. Proceedings of the
Institution of Civil Engineers-Management, Procurement and Law, 166(3), pp.128-136.
Ndekugri, I., 2013. The consulting engineer and corporate manslaughter risk. Proceedings of the
Institution of Civil Engineers-Management, Procurement and Law. 166(3). pp.128-136.
Rowbottom, J., 2013. To punish, inform, and criticize: The goals of naming and shaming. Media
and Public Shaming: Drawing the Boundaries of Disclosure, p.1.
Tombs, S., 2013. Still killing with impunity: corporate criminal law reform in the UK. Policy
and Practice in Health and Safety, 11(2), pp.63-80.
Tombs, S., 2013. Still killing with impunity: corporate criminal law reform in the UK. Policy
and Practice in Health and Safety. 11(2). pp.63-80.
Wells, C., 2011. Corporate criminal liability in England and Wales: Past, present, and future. In
Corporate Criminal Liability (pp. 91-112). Springer, Dordrecht.
Online
Corporate manslaughter laws in Australia. 2018. [Online]. Available through
<https://www.lynnandbrown.com.au/corporate-manslaughter-laws-in-australia/>.
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