EMBARGO: AM, MONDAY, 13 OCTOBER 2003
LAW REFORM COMMISSION ISSUES CONSULTATION PAPER ON CORPORATE KILLING
Monday 13 October 2003: The Law Reform Commission launches its Consultation Paper on Corporate Killing today.
The Consultation Paper has been prepared as part of the Commission’s Second Programme of Law Reform published in December 2000. The Consultation Paper provisionally recommends the introduction of a new offence of corporate killing which would make an organisation responsible for a death arising from its gross recklessness. The Commission’s view is that the existing law of gross recklessness manslaughter is inadequate in its application to organisations.
Summary of Consultation Paper
The Commission’s main provisional recommendations are:
- The proposed offence would apply where a death was caused by the gross recklessness of an organisation which created a serious risk of causing substantial injury
- The offence would be committed by an organisation based on the acts and omissions of a senior manager or director (a ‘high managerial agent’)
- The offence would be prosecuted only on indictment (usually requiring a jury trial) and carry an unlimited fine
- It would be a defence for an organisation to show it had taken all reasonable precautions to prevent the offence being committed
- The offence would apply to ‘undertakings’, which would include companies, public bodies and unincorporated bodies, such as partnerships
- Where an undertaking has been convicted of the proposed offence, senior managers and directors who are found to have acted with reckless disregard for the safety of a person could also be prosecuted personally and be liable to imprisonment for up to 5 years and/or an unlimited fine as well as possible disqualification from acting as a manager in an undertaking
- On conviction, a court should be able to order improvements be made to prevent recurrences, to make a community service order and to require the organisation to publicise its conviction.
Background
The Law Reform Commission is committed to a comprehensive review of criminal law, including corporate criminal liability. The Commission has already published a Consultation Paper on Homicide: the Mental Element in Murder (LRC CP17-2001).
In the context of corporate criminal liability, there has been considerable disquiet expressed that existing law does not deal adequately with organisations which act recklessly and cause death. The Whiddy disaster, the Stardust fire, and the Hepatitis C scandal have not been followed by any criminal prosecutions against any organisation with overall responsibility for what happened.
The current position: gross negligence manslaughter
Although organisations can be prosecuted under the current law of gross negligence manslaughter, in reality it is very difficult to obtain a conviction. The Commission is not aware that any prosecution for corporate manslaughter has been brought in Ireland. This seems to be because the current law requires proof that one senior manager or director was the so-called ‘controlling mind,’ and was therefore responsible for the relevant policy of the organisation. Where executive policy is spread among a number of managers or directors, it is extremely difficult to obtain a conviction.
This is clear from the analysis by the Commission of a number of high-profile corporate manslaughter cases in Britain. In the Herald of Free Enterprise ferry disaster case and the Southall train crash case, manslaughter charges against the organisations in those cases - P & O Ferries and South West Trains - were dismissed because it was not possible to identify a single ‘controlling mind’ in a large organisation.
Safety and health legislation
Some Irish disasters have been dealt with by prosecutions taken under the Safety, Health and Welfare at Work Act 1989. Until recently - when prosecutions under 1989 Act were brought on summons to the District Court - the fines imposed under the 1989 Act averaged less than €1,000, even where a workplace death was involved.
More recently, where prosecutions under the 1989 Act have been taken to the Circuit Criminal Court on indictment, larger fines have been imposed:
- in the Roseberry Construction case in 2001, where two men were buried alive while digging a trench on a building site in Co Kildare, a fine of almost €250,000 was imposed on the building company and a fine of €50,000 was imposed personally on its managing director
- in the Oran Pre-Cast case earlier this year, where a man was killed when he fell 11 metres while repairing guttering in a factory in Co Galway, a fine of €500,000 was imposed on the company.
In addition, the Health and Safety Authority can apply under the 1989 Act to have workplaces shut down. In the Zoe Developments case in 1997, one of the company’s Dublin building sites was shut down. It was also severely criticised by Mr Justice Peter Kelly for ignoring safety. Its managing director personally undertook to improve its safety record and agreed to donate £100,000 to inner city charities as a mark of contrition.
Although the level of fines imposed under the 1989 Act has increased, the Commission considers that a conviction under safety legislation may not suffice to depict and deter gross negligence manslaughter by organisations.
A new offence for deaths caused by gross recklessness
The key provisional recommendation of the Commission is that a new statutory criminal offence should be established which would make an organisation responsible for a death arising from its gross recklessness. In essence, the offence would be defined in terms equivalent to gross recklessness manslaughter – that is, where gross recklessness creates a serious risk of causing substantial injury and thereby causes death. The proposed offence would be adapted to take account of the difficulties in applying the current law to corporations.
The Commission recommends that the proposed offence would not prevent an individual from being prosecuted under the existing manslaughter law or for another offence.
How would the new offence be different?
Under the Commission’s recommendation, an organisation would be guilty of the new offence if it could be proved that the acts or omissions of a senior manager or director seriously risked causing substantial injury to any person and that this was a cause of death. This would be different from the existing law because:
- the acts and omissions could be those of any senior manager involved in the formation of policy rather than merely those of directors
In addition, the new offence would not be limited to workplace deaths, but would also apply to other situations, such as where a consumer product causes death.
Indictable offence and unlimited fines
The Commission considers that, to reflect the gravity of the proposed offence, it should be
- prosecuted on indictment only – generally requiring a jury trial - and
- carry an unlimited fine.
Defence of reasonable care
The Commission considers that an organisation should not be guilty of the proposed new offence where it can show that it took all reasonable precautions to prevent the commission of the offence. Thus, an organisation with active prevention policies will not be held responsible for the actions of a maverick manager or director. The organisation may be required to present evidence that it had taken all reasonable steps.
What organisations would the proposed offence apply to?
The Commission is recommending that the new offence would apply not just to companies but to all ‘undertakings’ in the State, which would include:
- Companies, both private and publicly quoted
- Public bodies, such as government agencies and local authorities
- Unincorporated bodies, such as partnerships.
The Commission would especially welcome views on this recommendation.
Personal liability of managers and directors
The Commission is recommending that, where an undertaking has been convicted of the proposed offence, a senior manager or director could also be charged with a separate offence and be liable to imprisonment for up to 5 years and/or an unlimited fine. The Commission is also recommending that such a director or manager could be prohibited from acting as a director or manager of an undertaking.
Other suggested sanctions
The Commission also recommended:
- the level of fines imposed after a conviction should relate to the means of the organisation
- on conviction, a court should be able to order improvements be put in place to prevent a repetition of the death (this is in line with existing powers in the Safety, Health and Welfare at Work Act 1989)
- on conviction, a court should be able to consider imposing a community service order on an organisation
- on conviction, a court should be able to order an organisation to publicise the conviction.
The Commission usually publishes in two stages: first, a Consultation Paper and then a Report. The Consultation Paper is intended to form the basis for discussion and accordingly the recommendations, conclusions and suggestions are provisional. Submissions on the provisional recommendations included in this Consultation Paper are welcome. The Commission will make its final recommendations following further consideration of the issues and consultation. Those who wish to make submissions are requested to do so in writing to the Commission by 31 January 2004.
ENDS
For further information / interview with Director of Research Raymond Byrne, contact:
Ruth Burnside 087 9967496 / Winifred McCourt 087 2446004 Gibney Communications, 01 661 0402