Clarkson states that the HSE are under-manned and under-resourced, will only press charges in cases that it believes represent a flagrant breach of the 1974 Act19. When a prosecution is brought, it tends to be in the magistrates’ court (60%), as this is quicker and cheaper for the HSE. Under the current legislation the maximum fine is 5,00020. 1 for all offences and to 20,000 for breaches of ss 2-6 of the 1974 Act20. 2. D. Bergman claims that the HSE has a very poor record in prosecuting.
The marginalisation of corporate crime is supported by the procedure adopted at inquests, under which bereaved families do not have right to legal aid and when they are represented, often financed by a trade union, and the solicitors are usually more interested in civil compensation22. Company managers and directors with responsibility for safety are seldom called as witnesses23. The second reason for the lack of criminalisation of corporate violence relates to the difficulty of obtaining a conviction under the present law.
J Gobert and E. Mugnai allege that the English judges have always struggled to find an acceptable formula for holding companies accountable for their criminal wrongdoing24. In the famous case of Nattrass25 the House of Lords crafted what is known as the “identification” doctrine, under which a company is criminally liable only for offences committed by its directors, officers, senior managers and similar others who can be described as being the embodiment of the company, i. e. company’s directing mind and will.
The question is who is to determine company’s directing mind and will? The reasoning rests on a crude distinction between persons can be described as the “brains” of a company, and workers, who are said to be its “hands”27. This distinction was criticised by Stern, he called it, ‘another plastic and useless description’ – the company was liable only for the forbidden acts or omissions of its ‘brain’, and not for those of its ‘hands’28.
However, in Meridian29 Lord Hoffmann took a different approach and stated, “… there is no such thing as the company … no Ding an Sich”. He refused to limit the identification doctrine to those representing the “directing mind and will” of the company and stated that in each case the court had to “fashion a special rule of attribution for the particular substantive rule”30. The major criticism about identification doctrine is the difficulty of defining the exact parameters of the notion of directing mind.
Under this doctrine the very limited numbers of individuals are identified with the company substantially reduces the potential applicability of the criminal law, particularly in the context of large corporate entities in which the decision-making centres are fragmented and the persons closely identified with the corporation are seldom those performing the incriminating acts31. Clarkson stated that the doctrine might be appropriate for small owner companies where it is not too difficult to pinpoint a senior individual with whom the company can be identified32.
The doctrine appears to benefit the larger entities and to the detriment of smaller companies. In this regard, the identification theory may be excessively restrictive and incapable of grasping the essence of what constitutes corporate wrongdoing. The doctrine seems to be unclear and uncertain. It is not limited to directors33 or to employees of the company: in one case the mens rea of the company’s servant may be attributed to the company, but this ruling does not automatically apply to other crimes such as manslaughter34. It appears that as the law is not clear in this area, the judges are not clear too35.
In order to overcome the problems associated with the identification doctrine, it was thought that an aggregation doctrine would be more appropriate. James Gobert illustrates, “When a crime occurs in the course of business, it is likely to be the result of a breakdown in more than one sphere of the company’s operation…. To capture the full extent of the company’s wrongdoing would require an aggregating of this failure”36. Under this doctrine it allows the acts and mental states of more than one individual within a company to be combined to satisfy the elements of a crime.
However, criticising the doctrine Clarkson37 states that, “As with the identification doctrine, it simply perpetuates the personification of company’s myth. Instead of finding one person with whom the company can be identified, one finds several people. ” He stated that with large complex corporate structures the doctrine is ineffective in terms of deterrence in that it fails to give advance notice to companies of what they are expected to do to immunise themselves from the risk of criminal liability. In R v HM Coroner38, the notion that several innocent acts could combine to form an illegal one was rejected by the court.
The problem of English law in this area seems to be generated by a failure to develop criteria for the judging of collective process. An alternative device courts have recently started employing to circumvent the rigours of the identification doctrine has been that of vicarious liability. Under the expansive view of vicarious liability, the company is potentially liable for the crime of any of its employees or agents, if the crime is committed within the scope of employment39. This doctrine is relatively well established in English law in relation to strict liability offences.
1 and also applies to hybrid offences which are prima facie strict liability offences but allow a due diligence40. 2. However, it is clear that vicarious liability will not apply to all offences of strict liability41. Whether it does apply or not is a matter of statutory interpretation, taking into account the language, content and policy of the law, and whether vicarious liability will assist enforcement. The advantage under vicarious liability is that it solves all the problems associated with the other doctrine such as finding a person sufficiently important in the corporation who has committed the crime.
As long as someone is acting in the course of their employment has committed a crime the company can be held liable. However, the doctrine of vicarious liability is often criticised on the ground that it is contrary to the fundamental percept of a justice system based on the punishment of individual to hold someone liable for the acts or omissions of his agent or employees. It is argued that the theory seriously distorts the doctrine of mens rea, since a person’s fault is automatically attributed to another person who has not himself committed any fault.
The company may have done everything within its power to prevent the wrongdoing but if one decides to carry on prohibited activity, it does not seem justifiable to hold the company blameworthy for those actions or inactions42. A possible compromise solution, as suggested by Clarkson43, is that proposed by the Council of Europe whereby a company would prima facie be vicariously liable for all offences committed by its employees, but would be afforded a due diligence defence if it could establish that the management was not implicated in the offence and had taken all the necessary steps to prevent the commission of the crime.
The main objection to this approach is that it would convert all offences of mens rea committed by companies into hybrid offences with due diligence defence attached. However, Sullivan proposes one solution to this problem and suggests to limit the due diligence defence to “non-regulatory offences that carry a stigma”44. In relation to manslaughter, the Law Commission published its report No. 237 in 199645.
The Law Commission re-examined the law of corporate manslaughter and rejected both vicarious liability and identification – as appropriate tests of corporate criminal liability and proposed a new offence of “Corporate Killing”46. This offence would be committed when there was a management failure by the corporation which caused a person’s death and that failure constitutes conduct “falling far bellow what can reasonably be expected of the corporation in the circumstances”47. The offence is designed without reference to foresight or classical mens rea concepts in order to capture the distinctive nature of corporate wrongdoing.
The proposed offence of corporate killing breaks the anthropomorphic link between corporate fault and human fault and thus constitutes a major advance in the conceptualisation of corporate crime48. However, the major weakness of the Law Commission’s proposal, as pointed out by Clarkson is that it would only apply where a death has resulted but, it would have no effect on any other offences49, such as corporate injury and serious injury. It would be undesirable if a company were convicted of a crime if the victim happened to die but of no offence if he happened to live.
As stated by Clarkson, the creation of a separate offence could mean that corporate killings would be perceived as different from ‘manslaughter’ or the new substitute offences50. It has to be noted that the Report51 does not deal with the fundamental problem, that of preventing employees and others from being killed or injured However there is no universally accepted method to hold the corporations liable for their corporate misconduct. Some have suggested proportionate fining system.
Whereas Chris Bell52 (health and safety adviser) suggested that fine alone may not send a sufficiently powerful message to the corporate world and the courts need to be able to send directors to prison. Supporting this views Bergman53 suggested that prosecution for death at the workplace should be tried only on indictment. Though some have suggested that adverse publicity is likely to be more deterrent than fines, which is often paltry. Conclusion: With all things considered, the development of the law in this area will be impeded by the gross lack of consensus on the correct approach to adopt.
Each of the above attempts to transport the company into the position of an individual in the court only serves to show that the problems in deciding which path to take are extremely complex. No answers can as yet be provided but the general consensus does seem to suggest that the older methods of the identification doctrine and the perceptions of the company itself are increasingly nave and outdated, which demonstrates the urgency for radical reform in the current system of law.