Arguments FOR/ AGAINST a Corporate manslaughter Act Common law v/s The Corporate Manslaughter act A response to public

c and legal criticism of the common law, which failed to hold large companies accountable for deaths in the workplace. The common law test requires a duty of care to be present between the employer and employee, which had subsequently been breached and could be shown to be a substantial cause of the death. It is then left to a jury to decide whether it was such a gross breach of duty that it should be deemed criminal. The paramount requirement of the test, and the most problematic, was that it had to be applicable to a directing mind of the company, commonly known as the identification doctrine. The case of R v P&O European Ferries (Dover) Ltd[4] was an example of a large company evading liability under the common law test because a single directing mind could not be identified despite eight defendants being brought to trial. It was thus apparent that large companies are escaping prosecution due to complex management structures making it difficult to identify the main individual who was directly responsible for the breach of duty. The identification doctrine however has been replaced by a senior management test. The new test requires that senior management, as a whole, permitted the activities that caused the breach, having the effect of broadening the original test. Senior management is meant to encompass those managers with health and safety responsibility lower down the management structure.

Respected counsel, My first point of argument concerns the case of R v P&O European Ferries as mentioned my Counsel Bootna. It should be noted that this case was unique due to eight directing minds being identified. Whether the Corporate Manslaughter & Homicide Act, would remedy situations where fewer defendants were identifiable is still questionable. Secondly, it is fact that the identification doctrine has been replaced by the senior management test. However, it is important to highlight that the previous doctrine had been perceived as an ineffective legal theory which has arguably failed to encapsulate the complexity of the modern company, thus resulting into practical problems of implementation. My question here shall be: whats the guarantee that Mauritius which is still follows Le Code Penal de 1838 will not face even more tedious practical problems of implementation? What if the senior management test in its turn is not suitable to our hybrid system? To proceed further, I would like to make reference to the Clause 1(4)(c) of the UK UK Corporate Manslaughter and Homicide Ac, I would like to refer to certain wordings of that clause. SLIDE: ((Clause 1(4)(c) of the which defines senior management as in relation to an organisationthe persons who play significant roles in (a) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised or (b) the actual managing of the whole or a substantial part of those activities)) Senior management defined in Clause 1(4)(c) does not necessarily correspond with senior positions in the organisations own hierarchy. The person or persons who have these functions may have a modest position in the organisations hierarchy, and may not be senior in any other sense. Furthermore, the use of the word persons in the plural should probably not be construed to mean that proof of failures by at least two people is required. The effect of that would to be to

exclude from liability any organisation in which only one person came within the senior management definition. The position in the hierarchy of a person whose functions define him as senior management may vary from one company to another. Through this, Dear Counsel, please allow me to take an example concerning a train operating company, where senior managers in the company can and will plausibly deny they are senior management, as they do not have a significant role in those areas of the companys business that directly concern safety and would engage liability. If individuals cannot be found who come within the definition, (pause) the offence will not have been proved even though a death has resulted from the companys bad practices. And if only a junior staff member can be found, then while the organisation may be liable, its more senior staff who may avoid censure and responsibility. They can delegate the function relating to safety to a level of management which is not senior. Plainly, the bigger the organisation, the greater the distance between real senior management and those taking decisions that may turn out to cost lives. I would like to end this argument with a question: If there seems to be imprecise wordings subject to various interpretations, how can the Act be referred to in the Mauritian context?

Works for the benefit of the victim Such an act operates on the basis that there is a link between the company and the individual in order the companys liability to be held. This link is in the form of being an employee or a consumer of a good or services of the company. In addition, both private and public companies can be held liable. In terms of liquidity, a company is more solvent then an individual, if compensation needs to be paid to the family of the victim, the company will be in a better position to make this payment especially in such a case where the victim is living behind children or any financially depended individuals.

The act has an inability to hold individuals culpable. Only the company can be found liable under the act and not individual company members. If an individual is to be prosecuted it must be done under the common law offence of gross negligence manslaughter.

More importance to health and safety policies The main aim of the act will be to increase prosecution rates for deaths in the workplace, thereby changing company attitudes towards their health and safety procedures. It is hoped that a broader test for liability would deter companies from dismissing the significance of health and safety policies and those who did fail to give adequate weight to such policies would be brought to justice for deaths caused in the workplace as a result. The mere fact of being able to demonstrate such focus will, of itself, go a considerable distance in defeating any prosecution. Companies will be compelled to examine their health and safety training and to make provisions so that the highest standards are met to avoid potential corporate manslaughter charges and ensure that senior management do not face personal liability.A reinforcement of this was the recent prosecution in England. The Gloucestershire-based firm was fined 385,000. The prosecution suggested that the company had failed to take all reasonably practicable steps toprotect the health and safety of its employees, notably ignoring well-recognized industry advice whichprohibited entry to pits more than 1.2 metres deep. At the time of his death, the company had also left Alexander Wright unsupervised and alone on the site. Health and safety policies already exist 1- The Occupational Safety and Health Act is the primary legislation. Its aim is to consolidate and widen the scope of legislation on safety, health and welfare of employees at work. In accordance with section 100 of the Act, other Regulations have been issued on: Personal Protective Equipment, Safety of Lifts at Work , Noise at Work , Scaffold , Employee's Lodging Accommodation and Electricity at Work. 2- General Agreement on Trade and Services (GATS) There are two specific clauses in the General Agreement on Trade and Services (GATS) that refer to occupational health.

i)

Article XIV lit. b) GATS Measures that are necessary to protect human, animal and plant life or health can be based on this clause. The fact that this clause also includes most regulation for OH&S can be proven without difficulty. provable directly, Should this not be

ii)

Article XIV lit. c) GATS can be consulted to support the requirement of occupational safety. Here actions by government of the member states, which hinder international services transactions (measures), are permitted if they are necessary to ensure compliance with laws and other regulations and are not in contradiction with the GATS.

3- The North American Free Trade Agreement (NAFTA) included OSH in a labour side agreement entitled the North American Agreement on Labor Cooperation (NAALC). (Brown, 2005). Occupational health and safety is one of three areas where NAALC has power to enforce sanctions, when a country has failed to enforce a labour law. Why there is no need for such an act in Mauritius In the past three years since the CMCHA came into force there has only been one prosecution to date. The aim is to punish large corporations who do not adequately implement health and safety regulations, who can subsequently rely on the identification doctrine as a shield to hide behind. However in Mauritius there are not such cases and besides there are already acts and conventions for those reasons and the companies are as well met with sanctions in cases of non-compliance. Such an act would be valid had these cases been prevalent in Mauritius but there is none so there is no need for such an act.

Targeting poor management rather than individuals The Corporate Manslaughter and Corporate Homicide act of 2007 in the UK was introduced in order to provide justice not only against individuals but also that of crimes that happened as a result of poor management or organisation. The management can be held liable should their lack of a duty of care cause a persons death, and amount to a gross breach of a relevant duty of care owed by the organisation to the deceased. Under the act, companies can be found guilty of a gross failure that leads to a person's death irrespective of whether a manager or director can be held personally liable; previously, prosecutors had to identify a "controlling mind".

Previously, according to Watson solicitor Des Collins"Lots of companies have tried to obfuscate and hide their senior management behind such a cloak of darkness that it will be almost impossible for prosecutors this act will ensure that a senior manager for health and safety will be assigned. There is no need for such an act to ensure the assignment of a senior manager for the integration of health and safety in the corporate environment. Dear Counsel, the insertion of clauses for compensation of the families of the victims may be reviewed and considered instead of employing a senior manager. As such, this will ensure that in any circumstances, the employees will feel secured. Moreover, the process of prosecuting the senior manager maybe lengthy and may incur losses in the companys prestige, name and asset.

Penalties can act as a deterrent The penalties falls under 3 broad categories which may act as a deterrent, they include unlimited fines, a remedial order, which will require a company to take steps to remedy any management failure that led to a death. And the court can also impose an order requiring the company to publicise that it has been convicted of the offence, giving details, the amount of any fine imposed and the terms of, any remedial order made. If the organization does not comply with any orders made against it, this itself will be a criminal offence punishable by an unlimited fine. Here, arises the most worrying issue of sentencing within the Act; it does not permit prison sentences. It must be emphasised at this point that individuals may still receive prison sentences for the individual offence (i.e. manslaughter by gross negligence). However, this highlights individual criminality and not corporate criminality. Would it be more effective to punish the culpable individuals as opposed to a corporation? Arguably the pursuance of individuals would be an easier process as identifying culpable individual parties would be more straight-forward and would thus ensure a higher ratio of convictions. Also, individual liability would remove the arduous task of trying to find tenuous links between the far-removed senior management and the acts and omissions of employees. But does easier mean better? The focus on individual liability may notably fail to take into account that a company's poor decision making process was evidently a substantial cause of death. It would also fail to encapsulate the concept of corporate

criminality and reiterate that the battle to impose and justify corporate accountability is lost.

Case laws to illustrate the need for the act (UK) 1) One example of a high profile case that happened before the act came into force was that of the sinking of the Herald of Free Enterprise. Time pressures from the company to complete as many sea crossings as possible lead the staff to being over worked and inevitably mistakes were made in the form that the bow doors were not closed before departure, water rushed in and of cause the boat sank, 193 people lost their lives.Using only the identification doctrine the case collapsed and nobody was found liable due to the fact it was not possible to identify the directing mind of the company due the size and complexity of the internal structure and as such to be reckless enough for the charge of gross negligence manslaughter. Had the 2007 act been in place then the Jury would not have had to consider who was personally at fault with the disaster but rather the management practice of putting the boat to see with its bow doors open and of cause the management could have been tried under the act as they would be vicariously liable.

2) A further example of a high profile case came with that of the Clapham Junction Rail Crash on the 12th December 1988 which resulted in 35 deaths and over 500 injuries. After an abrupt signal change the driver reported to signal control that he had ran a red light, despite this the driver was told he was clear to proceed, another train then ran into the back of the first train after also being under false proceed signals. The second crash came as a result of a train crashing into the wreckage and thus derailing. After an inquiry it was revealed that major re-signalling work that should have been undertook by senior management was actually overseen by two middle level technical staff that had very little supervision over them. Despite the facts that after the inquiry a number of recommendations were made into how British Rail should improve their safety standards, no actual convictions were ever made despite the obvious fact of a breach in the duty of care.

3) In Mauritius In two cases at Casela involving 2 children being injured, corporate manslaughter could have ensured the compensation for the injury of the 2 children for breach of duty of care and security. More recently, in a case where by 2 children died at the water park within 10 days of each other, the investigation is still on going, corporate manslaughter can well be applicable in this circumstance towards the benefit of the childrens victim.

((We have to emphasis upon responsabilite des parents, etc so that we do not give hand to the fact that corporate liability would be justified))

A Case Law After implementation of such an act (UK) The first actual conviction for Corporate Manslaughter came as a result of the Lyme Bay Canoe Disaster which came about of the death of 4 teenagers due to ill maintained equipment that was used on the outing. The acting mind of the Managing Director attributed to the workings of the company in the sense that safety standards were low and he knew full well of this. As such the company was fined 60,000 and the Managing Director received three years in jail, but only served two on appeal. Figures that show the effectiveness of the act Happily there have been no major disasters since the act came into force. And while 152 people died at work in 2009/10, this was according to the Health and Safety Executive the lowest number for many years.