Corporate Homicide

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This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 471-480.

Introduction

[1] Since the rise of large corporations in the 20th century, debate has arisen about prosecuting whole companies, rather than individuals within the company, for homicide.

  • A part of the problem is that the harms caused by the corporations' misdeeds are not considered the same as harms caused by private people. They are viewed as accidents which are remedied through the law of torts.[2]
    • For example, if a defective product caused someone's death, it is not going to be viewed murder or even manslaughter. It will be an issue of product liability.
  • The criminality of corporations has thus failed to be recognised as a conventional criminal harm, that requires a conventional punitive response.
  • The strong push for making a profit has arguably resulted in a culture of indifference toward workplace safety.[3]

A common example in this area is the 'Ford Pinto' case:

  • Ford manufactured a car and whilst testing, they realised that it was prone to exploding in hit in a certain way. They released it without remedying the issue.
  • Three teenagers died because their Pinto exploded upon minor contact. Ford, as a company, was charged with recklessly killing another human being, but were ultimately acquitted.

The Herald of Free Enterprise Disaster

[4] In this case, a ferry (the Herald of Free Enterprise) exised the dock with its bow doors open (which allowed it to fill up with water) and that resulted in the death of 193 people.

  • The official inquiry found that there were many different instances where the employees of the company were negligent.
  • However, the coroner's inquest concluded that these instances cannot be aggregated together, and that there is not enough evidence for manslaughter by the company.
  • The judicial review proceedings agreed with the coroner that there is not enough evidence to support that those who 'directed the mind and will of the company' had been guilty of manslaughter.
  • A trial started with the charge of unlawful killing, but it ended with the charges being dropped due to a lack of evidence.

Applicable Law

There are two pathways for prosecuting corporate homicide in NSW:

  1. The general criminal law offences (ie, manslaughter).
  2. Occupational health & safety offences (Occupational Health and Safety Act 2008, s 32A).

General Criminal Law

For a finding of corporate homicide, it must be found that the people who represent the ‘directing mind and will’ of the company, and control what it does, has been guilty of conduct amounting to homicide.

  • This is known as the ‘identification doctrine’, formulated by Denning LJ in Tesco Supermarkets Ltd v Nattrass,[5] and reaffirmed in Australia in AC Hatrick Chemicals Ltd.[6]
  • It involves a personification of the corporation – the managers as the 'heads', the employees as the 'arms and legs'.
  • It rejects the 'aggregation principle', which involves looking at the total acts and policies of a company to see whether they fell short of the standard of care.

The identification doctrine is often criticised:

  • It does not properly describe how companies work. It is not always the directors who make decisions, but often middle management etc. Knowledge may not always come from the top.
  • Mens rea is based on the fault of an individual. The corporate distribution of power and responsibility means that necessary fault will rarely reside with a single individual.[7]
  • Manslaughter by criminal negligence rests on an objective standard. Yet, looking for the ‘directing mind and will’ implies examining the fault of the company’s managers – a subjective standard.
    • Why doesn’t the criminal law establish an objective standard for corporations, like it does for individuals, and compare its conduct with that of the 'reasonable corporation' in the position of the particular corporation in question? It seems contradictory.

Generally, charges don’t proceed beyond manslaughter – it is obviously very difficult to find the requisite reckless indifference to human life to charge a company with murder.

A good example of prosecution of corporations under the criminal law is Denbo Pty Ltd & Nadenbousch:[8]

  • An employee truck driver crashed his truck when he tried to drive down a steep incline. His truck had faulty breaks, and he had not be warned about it.
  • The company was charged with manslaughter by criminal negligence for its failure to set up an adequate maintenance system for its vehicles and for its failure to train its employees properly, and pleaded guilty.

OH&S

[9] s 31 of the Work Health and Safety Act 2011 (NSW) deals with deaths in the workplace:

  • Actus reus: the accused (individual or corporation) must have:
    1. Caused the death of another person at any place of work; and
    2. Owed a duty under the occupational health and safety legislation to provide a safe and healthy place of work.
  • Mens rea: the accused was 'reckless as to the danger of death or serious injury' to the person owed the duty (subjective standard).
    • Subjective foresight as to the possibility of harm is required.
    • This is a narrower test than the objective test of manslaughter by criminal negligence.
  • Defences: if there was a reasonable excuse for the conduct.
  • Sentence: $1.65 million for a corporation, and 5 yrs imprisonment or $165,000 for an individual.
    • No right to trial by jury. Rather, the case is brought to the Industrial Relations Commission sitting as a Court.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 471-2.
  2. Swigert and Farrel, 'Corporate Homicide: Definitional Processes in the Creation of Deviance' (1980-81) 15 Law and Society Review 161 in Textbook, pp. 471-2.
  3. S Pemberton, 'A Theory of Moral Indifference: Understanding the Production of Harm by Capitalist Society' in P Hillyard et al, Beyond Criminology: Taking Harm Seriously (2004) Ch 5; in Textbook, p. 474
  4. Textbook, pp. 472-4.
  5. [1972] AC 153.
  6. (1995) 152 A Crim R 384.
  7. Slapper, 'Corporate Liability and Manslaughter: Should we be Going Dutch?' [1991] Crim LR 156 at 158-9 in Textbook, p. 473.
  8. unreported, VSC, 14 June 1994.
  9. Textbook, pp. 477-80.
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