Question 2

 


Introduction


Corporate manslaughter law is evident before and as of the present times coming from such law reformation as presented in the year 2007, most recent accounts are shown. Defining and knowing corporate manslaughter as well as such aspects and processes of certain law pertaining to it. To assume considerations why such corporate manslaughter law reform will be necessary also, the need to recognize and understand the law reforms in terms of the outline, to be presented in the discussion section of this paper. In addition, to be able to place an effective conclusion of the necessary law reform focusing corporate manslaughter with reflections on corporate homicide act of the year 2007. Wells (2001, p. 1), have indicated that “criminal law has evolved around the central theme of individual liability and takes an individualistic approach to any crime elements”.  Thus, a company could not be convicted for any criminal offence, as there could be no vicarious criminal responsibility engaging one person as not to be deemed guilty of corporate manslaughter offence as committed although, statutory exceptions to the vicarious responsibility principle led also to statutory exceptions to the principle against the criminal responsibility of corporations wherein corporation had failed to carry out statutory duty creating common law reform (Yarosky 1964; Leigh 1969; Fisse 1967; Welsh 1946). Henceforth, it is now clear from studies of corporate criminality that unacceptable behavior may outcome from the failures of company as an organization (Field and Jorg 1991). However, the desire in reform efforts of the assumption does require that the company have defense of due diligence even though fault can be identified with the company, the controlling of employee acts for the benefit of the company. As quoted, “the common law because of the emergence of corporations in modern times does not make appropriate provision for the criminal liability of corporations further, change required in the law to accommodate development is of dimensions that legislative action, rather than reliance on evolution of law reform as required” (Gibbs 1990, p. 305). In considering the desirable scope of reforms to corporate criminal liability, it is necessary, given the immense variety and wealth of views on the subject, to take a step back and examine why it is that it might be argued that imposing criminal liability on a company, as distinct from the individuals which comprise it, is a defensible measure of criminal and social policy for instance, exposing policy questions and the issues in an interesting way, question of possible liability of company for unlawful manslaughter, the mandatory penalty was either death or life imprisonment and neither penalty applied to a company (Goode, 1975 p. 5 in, Murray Wright Ltd [1970] NZLR 476).  Today, there have been accepted that company can be found guilty of homicide if an appropriate penalty is available (Clark 1979; Corns 1991; Coment 1984; Edelman 1987; Spurgeon and Fagan 1981; Stone 1985; Wells 1988), there remains whether the company should be liable for conviction for unlawful homicide, although it is now legally possible to prosecute corporate employers for manslaughter, as not being taken.


 


 


Discussion


 


There failed corporate manslaughter prosecutions are examples of a litany of failures to prosecute successfully using manslaughter law following industrial deaths, have indicated to some that corporate actors are immune to or above criminal law. Thus, presence of issues as there has been inadequacy of present law stems from the identification doctrine and its practical application following industrial deaths. These failed convictions and the failure to prosecute is widely discussed in academic literature and form the basis of many calls for corporate manslaughter law reform. Without the duty of care on behalf of the directing mind of a corporation the prosecution of any individual for gross negligent manslaughter and for this reason also the company for corporate manslaughter collapses (Appleby, 2003). For one, the legislation aims to ensure that, “companies and other organizations are held properly to account for gross failings by their senior management, which have fatal consequences”, providing in new tests of corporate liability for manslaughter like the focuses on management failure into the senior level within the company organization.


 


Why has reform been considered necessary?


 


The manslaughter law reform are necessarily considered as there can be unclear provision of corporate manslaughter from the old law as from the past certain outcome of ineffective prosecutions of individuals concerning work related accidents are unclearly stated and acknowledged phasing in without serious crime investigations and also, lawful authorities did face several insufficient facts and evidences of corporate manslaughter thus, showing ample need of major reform into the law system. According to Petkov (2008 pp. 1-3) reported that the “old law has not been showing mercy to small firms as they are the ones which directors were dealing with all the responsibilities and the organizational structure of such firms, some liability was easy definable, as the company directors were prosecuted and some of them convicted in manslaughter according to the registers”. Indeed, he asserted a major case, horrible accident with which the attention of the public and the law became more concentrated over the corporate negligence was the Herald of Free Enterprise case during the year 1987, upon following gross health and safety negligence which actions happened on a ship, where more than a hundred people found their death and that, only four cases were followed by prosecutions of not more than three companies and mainly their “operating minds” as a procedure of the old incomplete statutes of manslaughter, one indication that law reform has been considered to update old law of manslaughter to a new one, ‘Corporate Manslaughter’, concerning corporate bodies in relation to gross negligence but, operating minds as the old law is arguably stating, as Petkov (2008), further mentioned that one core reform in the system will be the replacement of the two-tier with innovative, three-tier structure of distinction between the murder and manslaughter convictions, being stated in the law commission reports. True, that fresh structure will give better understanding of distinction between convictions and will be concerned with the “border line” of the two (pp. 1-3). Recognizing that the “old law allegations are meeting complexity and a lack of clearance in prosecuting and convicting those. In such cases there are always insufficient facts and these corporate bodies are mostly never convicted, which worries the public and the judiciary at all levels”. Furthermore, from the basis on Corporate Manslaughter and Corporate Homicide Act of 2007, there creates new statutory offence of “corporate manslaughter”. It will replace the common law offence of “manslaughter by gross negligence”, within the corporations. Thus, there has been senior management failure, which amounts to a breach in that duty and which has resulted in a person’s death, from within the existing duties of care. This major reform will make the law to be applied more easily and will distinguish the prosecution to two stages which can be lawfully used in order more cases to reach a conviction level as opposite to the past results. It was known that, single individuals cannot be prosecuted by the new legislation but they continue to be liable under the health and safety regulations as well as under the existing statutes of manslaughter, constituting a gross breach of the duty of care. Amiably, ‘Corporate Manslaughter and Corporate Homicide Act 2007 are designed to make it easier to secure manslaughter convictions against corporations. It is essential for every public sector organizations to consider corporate manslaughter laws and whether their risk management policies, lines of delegation and responsibility are strong enough to withstand the pressure should tragic death occur’. Aside, ‘workplace deaths and deaths arising from the conduct of corporation have been met with charges alleging gross negligence manslaughter and/or offences under Health and Safety legislation and when a corporation was convicted of health and safety offence, directors and managers could be found guilty of the same offence’ (from Section 37 of the Health and Safety at Work Act) it could be that such offence, committed with the consent of connivance being punishable with a fine.


 


Corporate Manslaughter Law Reform Outline


 


I.              Corporate Manslaughter


II.            Fatality in the Workplace


III.           Corporate Manslaughter: The Law and Reform


IV.          The Primary Scope of Corporate Criminal Liability


V.           Law Reform Requirement


VI.          Statute Objective


VII.         Offenses Recognition


VIII.       Corporate Manslaughter and Homicide


IX.          The Criminal Law And Its Reform In Response To Industrial Deaths


X.           Researches on Corporate Manslaughter


XI.          Causal Link


XII.         Recommendations


 


 


 


 


Conclusion


 


The corporate manslaughter reformation will integrate more research domain versus some of the corporate bodies under the allegations of Corporate Manslaughter even arguments placed that there will not lead to serious prosecution of the case situation as some employers will be bound from innovative act and will have to adhere changes in the company’s from reflecting health and safety regulations measures.


 


 


References


Appleby, M. (2003) ‘Accounting for corporate killing – time for change’ Occupational Health Review104 (July/August 2003)


 


Clark, G. 1979, “Corporate homicide: A new assault on corporate decision-making”, Notre Dame Lawyer, vol. 54, p. 911.


 


Comment: 1984, “Corporate homicide: Will Michigan follow suit?”, University of Detroit Law Review, vol. 62, p. 65.


 


Corns, C. 1991, “The liability of corporations for homicide in Victoria”, Criminal Law Journal, vol. 15, no. 5, pp. 351-66


 


Edelman, D. 1987, “Corporate criminal liability for homicide: The need to punish both the corporate entity and its officers”, Dickinson Law Review, vol. 92, p. 193


 


Field, S. & Jorg, N. 1991, “Corporate liability and manslaughter: Should we be going Dutch?”, Criminal Law Review, March, pp. 156-71


 


Fisse, B. 1967, “The distinction between primary and vicarious corporate criminal


        liability”, Australian Law Journal, vol. 41, no. 6, pp. 203-10.


 


(Gibbs) Review of Commonwealth General Law 1990, Interim Report: Principles       of Criminal Responsibility and Other Matters, AGPS, Canberra.


 


Goode, M. (1975), Corporate Criminal Liability. Dalhousie Law Journal


Leigh, L.H. 1969, The Criminal Liabilty of Corporations in English Law, Weidenfeld & Nicholson, London.


 


Petkov, F. (2008), Reforms to the Law on Corporate Manslaughter in the UK: Information Paper, The Corporate Manslaughter and Corporate Homicide Act 2007 (Why has a reform been considered necessary?) Cluster Star: Student Business Consultants, pp. 1-4.


 


Spurgeon, W.A. & Fagan, T.P. 1981, “Criminal liability for life-endangering corporate conduct”, Journal of Criminal Law & Criminology, vol. 72, no. 2, pp. 400-33.


 


Stone, C. 1985, “Corporate criminal liability for homicide”, South Western Law


       Journal, vol. 32, p. 1275.


 


Wells, C. 1988, “The decline and rise of English murder: Corporate crime and individual responsibility”, Criminal Law Review, pp. 788-801.


 


Wells, C. (2001) Corporations and Criminal Responsibility (Oxford, Oxford University Press)


 


Welsh, R. 1946, “The criminal liability of corporations”, Law Quarterly Review, vol. 62, p. 345


 


Yarosky, H. 1964, “The criminal liability of corporations”, McGill Law Journal, vol.


       10, p. 142.


 



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