Question:
Gobert (2008) states that, whilst the Corporate Manslaughter and Corporate
Homicide Act 2007 has its deficiencies, these may be overshadowed by its
symbolic effects such as the fact that corporate bodies can commit crimes as
serious as manslaughter. He further believes that the Act will focus the minds
of directors and senior management where issues of health and safety are
concerned and that it introduces a range of sanctions that will similarly
concentrate the attention of a company’s executives.
Critically analyse this view of the Act now, seven years after Gobert was
writing.
Answers:
Until 2008, a company could be guilty of the common law offence of
manslaughter by gross negligence if the identification rule of the directing
mind and will applied. Originally, this was only applicable to individual but the
concept has widened out to company. Following the development of the law,
the court has refused to adopt the less restrictive Meridian 1995 approach but
has been more willing to apply the narrow approach in the case of Tesco
Supermarkets Ltd v Natrass. Accordingly, this case limits the application of
what is known as the identification principle. In other words, successful
prosecution of the company only followed when the criminal offence has been
committed by a managing director who is the directing mind and stay very high
up in the chain of the command.
Subsequently, Celia argued that it was very difficult to secure the
conviction of larger companies as there are many layers of management
compared to small companies. Obviously, this will create unfairness to the
, deceased as Field and Jones stated that the organisations will try to escape
liabilities by stating that a senior individual would have not representing the
organisation, and hence the individual alone will be charged under gross
negligence manslaughter and bear the consequences. Before 2008, Slapper
mentioned that there were only 6 convictions and successful prosecutions
involved usually very small companies such as in the case of R v Kite and R v
Jackson. In short, one thinks that the old law was not very effective and causes
problems.
After much dissatisfaction with the old law, and in response to a number
of high-profile disasters such as railway crash and the growing problems of
workplace deaths, the public pressure to bring a specific act to corporate
manslaughter to bring charges easily against the company. So, the Government
proposed a specific offence of corporate manslaughter which is the Corporate
Manslaughter and Corporate Homicide Act (CMCHA) 2007.
CMCHA 2007 abolished the common law gross negligence manslaughter
in so far as it applies to a company in UK. The law is not retrospective which
means that any offences occurred prior to the 2007 cannot be prosecuted
under the CMCHA 2007.
Likewise, s.18 (1) CMCHA 2007 states that the new Act does not apply to
individuals as this is a specific corporate offence. Gobert has argued that this
Act is disappointing in its failure to provide for the criminal liability of directors,
corporate executives and senior managers who significantly contribute to their
organisation's offence. However, they don’t escape from potential personal
liability by hiding into the corporate veil. Individuals will continue to be liable
Gobert (2008) states that, whilst the Corporate Manslaughter and Corporate
Homicide Act 2007 has its deficiencies, these may be overshadowed by its
symbolic effects such as the fact that corporate bodies can commit crimes as
serious as manslaughter. He further believes that the Act will focus the minds
of directors and senior management where issues of health and safety are
concerned and that it introduces a range of sanctions that will similarly
concentrate the attention of a company’s executives.
Critically analyse this view of the Act now, seven years after Gobert was
writing.
Answers:
Until 2008, a company could be guilty of the common law offence of
manslaughter by gross negligence if the identification rule of the directing
mind and will applied. Originally, this was only applicable to individual but the
concept has widened out to company. Following the development of the law,
the court has refused to adopt the less restrictive Meridian 1995 approach but
has been more willing to apply the narrow approach in the case of Tesco
Supermarkets Ltd v Natrass. Accordingly, this case limits the application of
what is known as the identification principle. In other words, successful
prosecution of the company only followed when the criminal offence has been
committed by a managing director who is the directing mind and stay very high
up in the chain of the command.
Subsequently, Celia argued that it was very difficult to secure the
conviction of larger companies as there are many layers of management
compared to small companies. Obviously, this will create unfairness to the
, deceased as Field and Jones stated that the organisations will try to escape
liabilities by stating that a senior individual would have not representing the
organisation, and hence the individual alone will be charged under gross
negligence manslaughter and bear the consequences. Before 2008, Slapper
mentioned that there were only 6 convictions and successful prosecutions
involved usually very small companies such as in the case of R v Kite and R v
Jackson. In short, one thinks that the old law was not very effective and causes
problems.
After much dissatisfaction with the old law, and in response to a number
of high-profile disasters such as railway crash and the growing problems of
workplace deaths, the public pressure to bring a specific act to corporate
manslaughter to bring charges easily against the company. So, the Government
proposed a specific offence of corporate manslaughter which is the Corporate
Manslaughter and Corporate Homicide Act (CMCHA) 2007.
CMCHA 2007 abolished the common law gross negligence manslaughter
in so far as it applies to a company in UK. The law is not retrospective which
means that any offences occurred prior to the 2007 cannot be prosecuted
under the CMCHA 2007.
Likewise, s.18 (1) CMCHA 2007 states that the new Act does not apply to
individuals as this is a specific corporate offence. Gobert has argued that this
Act is disappointing in its failure to provide for the criminal liability of directors,
corporate executives and senior managers who significantly contribute to their
organisation's offence. However, they don’t escape from potential personal
liability by hiding into the corporate veil. Individuals will continue to be liable
