Criminal Liability Essay

Criminal liability and the justifications for, and objectives of, punishment are based on the notion of individual blameworthiness" In light of the above statement, consider whether imposing criminal liability on corporations for manslaughter is ever justified.

Introduction

English law has yet to come to terms with the conceptually difficult task of attributing liability for manslaughter to a corporate entity. The essential problem is that a corporation is granted an independent status by a pragmatic legal fiction which affords an identity to entity which has no physical existence. Salomon v. Salomon & Co. [1897] is authority on this point. This is done in order to allow the corporation to assume responsibility and rights in its economic activities and this device has proved extremely useful in encouraging commercial risk taking and entrepreneurial activity.

However, problems arise when it is necessary to consider the question of the criminal liability of the corporation, because one of the fundamental precepts of criminal law is that of personal criminal responsibility. The way in which criminal law attributes liability is by ascertaining a mens rea (a guilty mind) and an actus reus (a guilty act) on the part of the accused. It is difficult to accuse a company of possessing a guilty mind, because it has no personal mind or conscience, and it is guilty of accusing a company of a guilty act, because it is a legal construct without any means of acting on its own behalf. Companies can only act vicariously through the actions of their human employees and representatives, and such individuals possess their own personal criminal responsibility which can be dealt with by the ordinary application of criminal law.

The issue was brought dramatically to the fore in March 1987 when the Herald of Free Enterprise ferry capsized off Zeebrugge with the loss of 188 lives. Amid a public outcry and intense media pressure for effective sanctions P&O was accused of gross negligence and prosecuted for manslaughter over the incident but the case subsequently collapsed. Momentum gathered behind the cause for reform as the same fate befell attempts to sustain corporate prosecutions in the aftermath of the King's Cross fire (1987) , the Piper Alpha oil rig disaster in Scotland (where the equivalent offence is culpable homicide) (1988), the Clapham Rail crash (1988) and the Marchioness pleasure boat tragedy (1989). Over the years since 1989 there have been other tragedies too numerous to mention, but in not a single case was a large company successfully prosecuted for manslaughter.

Directing Mind Theory

Given that the company has no conscience or mind of its own, it has been suggested that the law should look to a senior representative of the company and attribute his or her state of mind to the company itself. This is a tenuous approach, because it undermines the fundamental rule of personal criminal responsibility, but it has received considerable academic support and comment. The traditional starting point in an analysis of the evolution of directing mind theory is the dictum of Viscount Haldane in the civil case, Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915]. He stated:

"A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation."

As stated, many commentators have championed the view that the directing mind concept provides a more coherent and just basis for corporate liability than agency or vicarious liability mechanisms.

The theory was applied in a civil context in Rudd v Elder Dempster & Co Ltd [1933] and Wheeler v New Merton Board Mills Ltd [1933] which dealt with the liability of companies for negligence in factory operations which resulted in injury to employees. These cases concerned the question as to whether personal knowledge or wilful actions could be imputed to a corporation under the terms of the Workmen's Compensation Act 1923. Following Lennard's Carrying Co it was held that a company could only be deemed liable to its workmen for the negligence of its governing nucleus - namely its directors, managing director, general manager or other persons having authority from the board to carry out company actions. That said, it should be noted that in the later case of Wilsons & Clyde Coal v English [1937] , the House of Lords omitted to apply or even consider the directing mind theory when deciding on corporate liability for an unsafe system of work in a mine under common law and relevant legislation. In this case liability was imposed purely on principles of vicarious liability, even though the duty imposed on the corporate mine owner was found to be personal and non-delegable.

In the case of H.L. Bolton (Engineering) Co Ltd v T.J.Graham & Sons Ltd, Lord Denning attempted to entrench directing mind theory at the heart of the law for the imposition of civil or criminal liability on companies. Lord Denning stated that companies:

"'may in many ways be likened to a human body. They have a brain and a nerve centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre.'

Therefore Lord Denning advocated that the means of determining the mind of the company was to identify its actual human controllers. He argued that a company's directors and managers represent the directing mind and will of the company, and that they control what the company does. He concluded that the state of mind of senior corporate officers is the state of mind of the company and that it should be treated by the law as such. Unfortunately, Denning's policy rendered it virtually impossible for corporations of anything other than a very small size to be successfully prosecuted because in most corporations of a significant size the personal responsibility for corporate affairs is divided between a number of directors and senior managers and as a