Ang Pua Xuan 3157

Question 4
Serious casualties caused by accidents have occurred in the UK from time to time
since the 1980s. For example, the ferry of P&O European Ferries (Dover) Limited
sank in Zeebrugge, Belgium, and 193 people were killed in the accident in 19871; in
the same year, a fire broke out at the King's Cross station of the London Underground
and 31 people were killed2; Piper, North Sea, England, 167 people were killed in the
explosion on the Alpha drilling platform in 19883; in December of the same year, a
passenger car collision at the Clapham train station in London killed 35 people.4 After
a series of investigations, most of the reports have been pointed at the company
behind the accident. They criticized the chaotic management of the companies and
ignored the public safety in their business activities. This condemnation soon gained
support from the public and they believed that in most tragedies, those irresponsible
companies should take responsibility for their action.5The social pressure then forced
the Crown Prosecution Service to try to prosecute the companies which involved in
the accident with manslaughter.
There is no clear answer in the traditional common law as to whether the
behavior of a corporate organization such as a company can constitute a crime of
negligence. In the past, it was once determined that when the conviction of a crime
depends on the proof of mens rea which include gross negligence or recklessness, it is
impossible for a company to be found guilty. This is because the company itself is just
a legal creation without any will or thinking. Thus, it is definitely impossible for it to
have the mens rea of crime, therefore it is not possible for a legal person to commit
crimes that generally only natural persons can commit. Therefore, in principle, the
company's business behavior cannot constitute manslaughter. Judge Finley stated in
his judgment that the company cannot be convicted of felony or misdemeanour

1
Sharpe, A., 2021. R V P&O European Ferries (Dover) Limited –
Timerity.<https://timeritous.wordpress.com/tag/r-v-po-european-ferries-dover-limited/> [Accessed 11
January 2021].
2
En.wikipedia.org. 2021. King's Cross Fire.<https://en.wikipedia.org/wiki/King%27s_Cross_fire>
[Accessed 11 January 2021].
3
The Maritime Executive. 2021. July 6, 1988: The Piper Alpha Disaster. <https://www.maritime-
executive.com/article/july-6-1988-the-piper-alpha-disaster> [Accessed 11 January 2021].
4
En.wikipedia.org. 2021. Clapham Junction Rail
Crash.<https://en.wikipedia.org/wiki/Clapham_Junction_rail_crash> [Accessed 11 January 2021].
5
Her Majesty's Stationery Office, Blackspot Construction : Study of Five Years Fatal Accidents in the
Building and Civil Engineering Industries. (HSE Books 1988)
involving personal violence, and therefore cannot be convicted of manslaughter in the
1920s.6
However, this way of treating natural persons and legal persons completely
differently has been growing challenged, while the opinion of placing companies in
the same position as natural persons for analysis purpose has began to gain attention
from the judicial. In the mid-1940s, the court began to try to break through the
principle of judicial precedent, claiming that the company can be convicted of certain
specific crimes that must have the mens rea of the crime. The criminal behavior of
certain senior managers in the company can be legally regarded as the behavior of the
company as a legal person after the continuous re-understanding of the company
structure. This is well explain in the case of DPP v Kent & Sussex Contractors7,
Limited and R v ICR Haulage Limited & Others8. However, not all the actions of
employees or individuals in the company can be ultimately attributed to the company
itself. Lord Denning stated that a company can be seen as similar to the composition
of the human body in many ways where it has a brain and nerve center to control its
behavior and also has both hands to hold the tools and act according to the
instructions of his brain center. Some people are just pure employees in the company
which was similar to human hands, but they cannot represent the company's will and
consciousness. However, the director and manager of the company represent the
directing mind and will of the company. Thus, the mind and will of the director and
manager can be view as the mind and will of the company and if the mind and will of
director and manager is guilty, then the company itself is guilty.9
This opinion was recognized and adopted by the court in subsequent criminal
trials such as in the case of John Henshall (Quarries) Limited v Harvey10. It can be
seen that when it is necessary to prove the non-existent will of the mens rea of the
company’s crime, the court tries to find and determine a personal consciousness from
the company that can have a guiding and influence on the company’s action, and then
the natural person’s guilty minding and will is equal to the subjective thinking of a
company as a legal person, and then solve the limitation of requirements of criminal

6
R v Cory Brothers & Company Limited [1927] 1 KB 810
7
DPP v Kent & Sussex Contractors, Limited [1944] 1 KB 146
8
R v ICR Haulage Limited & Others [1944] KB 551
9
H.L. Bolton (Engineering) Co. Limited v T.J. Graham & Sons Limited [1957] 1 QB 159，172.
10
John Henshall (Quarries) Limited v Harvey [1965] 2 QB 233.
law on the subjective elements of crime11. This is the "identification principle" in
common law. However, it should be noted that with the increasing scale of modern
companies and the increasingly complex management structure, the way to identify
the "guidance will" in the pyramid-like company management system still needed
more investigation and analysis. This problem is best illustrate in the case of Tesco
Supermarkets Limited v Natrass12. In this case, House of Lords claimed that the board
of directors often delegates its management functions to the company's management.
In this case, those authorized representatives should also be regarded as the
embodiment of the company. However, in this case, although the branch manager
actually has some management autonomy, these junior managers are are only
considered as the "hands" of the company and was not the controlling mind of the
company. Thus, The company was acquitted. According to this judgment, the scope
of application of the "identification principle" is determined which is natural persons
who can be viewed as the embodiment of a company in law and whose mind and will
is equate to the mind and will of the company are limited to the senior management of
the company. It can be seen that in the common law system, if you want to prove the
criminal liability of a company, you must first prove that a specific individual in its
senior management has a mens rea. If the existence of such a specific individual
cannot be identified, then the company cannot convicted to any criminal act, nor can it
bear criminal liability13.
Although there is identification principle helped in determining the mens rea of a
company’s crime, there is some limitation in it. Liability cannot be attributed easily
due to the complex delegated structures of the company. This is because there are too
much layers of decision making and culpability of specific individual unable to
determine accurately. The inherent shortcomings of the identification principle and
the difficulties of confirming a directing mind and will makes the prosecution under
gross negligence manslaughter almost impossible. This issue lead to a huge argument
in the case of R v P & O European Ferries Ltd and promoted the process of legal
reform14. In this case, the prosecutor faced a big difficulty on how to prove that the
company’s operation constitute manslaughter. This is because according to the

11
Ormerod, D., Hogan, B. and Smith, J., 2005. Smith & Hogan Criminal Law. 11th ed. London:
LexisNexis, p.171.
12
Tesco Supermarkets Ltd. v. Nattrass [1971] UKHL 1[1972] AC 153
13
Eilis Ferran,Corporate attribution and the directing mind and will (L.Q.R. 2011, 127(Apr), 239-259
14
R. v P&O European Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72
"identification principle", if they want to prove that the company has committed a
crime of manslaughter which must prove the mens rea of the crime, they must
determine a specific individual in the company's management and then show evidence
to prove that the specific individual has clearly gross negligence manslaughter.
However, looking at the entire case, the prosecutor cannot clearly indicate which
specific individual of the company’s board of directors can be attributed to the
company’s mens rea of crime. By the way, the captain, chief mate, and assistant sailor
who has direct fault in the accident were only employees of the company. In
accordance with the principles established in the Tesco Supermarkets Limited v
Natrass case, they are not the embodiment of the company, and their subjective will
cannot equal to the company’s mens rea of crime. Thus, the defendant was not guilty.
Due to the limitation of identification principle, the Law Commission proposed
the introduction of the new crime of "Corporate Killing" in a 1996 report15. In 2006,
the British Home Secretary formally introduced the "Corporate Manslaughter and
Corporate Homicide Bill" and formed the Corporate Manslaughter and Corporate
Homicide Act 2007 in order to widen the law on corporate manslaughter in the United
Kingdom16. From the very beginning, the "Corporate Manslaughter Act" clearly stated
the purpose of its enactment which is if the following circumstances occurred in the
management or operation of a legal person, the legal person will be convicted of a
criminal act under this law. The circumstances are causes a person's death17 and
amounts to a gross breach of a relevant duty of care owed by the organization to the
deceased18. At the same time, the act stated that only when the company’s
management or operation method has the circumstances described in the above-
mentioned law, and such management or operation method is essentially caused by
the behavior of senior management and then the legal person can be convicted19.
Regarding the definition of "senior management", the act provides a relevant
explanation which is as far as a legal entity is concerned, senior management refers to
individuals who play a significant role in the following situations. First, the overall or
major form of decision-making process related to the management20 or operation of

15
Law Commission, Legislating the Criminal Code: Involuntary Manslaughter report No. 237 (1996)
16
Corporate Manslaughter and Corporate Homicide Act 2007
17
S1(1)(a)
18
S1(1)(b)
19
S1(3)
20
S1(4)(c)(i)
the organization, or the actual management or operation of all or main activities of the
organization21.
This definition of "senior management" obviously includes both the company's
decision makers and senior management. The focus of the act has also expanded from
a specific individual which is restricted by the original common law "identification
principle" to a broader level which is the way the company runs under the leadership
of senior management. The act is no longer constrained to try to identify a "guided
mind" from the company based on the "identification principle" in order to attribute to
the company, but to take "management failures" as a breakthrough. Therefore, as long
as the company’s senior management has a negligence that breaches the duty of care
in the operation and management, it does not matter which of the natural persons who
may be regarded as the embodiment of the company has the mens rea that meet the
requirements for the establishment of manslaughter, the legal person may be
convicted to a crime of manslaughter due to their "management failure." This new law
has clear benefits compared to the identification principle. Taking the case of R v P &
O European Ferries Ltd as a hypothesis, if the "management failure" standard
established in the act is adopted, the prosecutor does not need to be entangled in the
company's board of directors on whether a person’s behavior constitutes
manslaughter. It is only necessary to prove that the company’s board of directors
ignore the safety and supervision on its management breaches its duty of care to
passengers as a public transport company.
Regarding the form of sentencing, there is no limit to the fine that a court can
impose on a company which is convicted under the act22. This ability to impose an
unlimited fine was meant to create a deterrent effect on large companies. The courts
are also able to order a remedial order to ensure that the breach of duty of care which
caused the death is settled and the sanction of a publicity order which have the
authority to ‘name and shame’ the companies who are convicted under the act. The
sentencing under this act is seemed to be holistic. In the case of R v Cotswold
Geotechnical (Holdings) Ltd23, the company was fined on 250% of the company’s
turnover which brought a strong deterrent effect to the companies. Moreover. This
was the first case where company was convicted under the "Corporate Manslaughter
and Corporate Homicide Act 2007".
21
S1(4)(c)(ii)
22
S1(6)
23
R v Cotswold Geotechnical Holdings Ltd[2011] EWCA Crim 1337
 It seemed that the "Corporate Manslaughter and Corporate Homicide Act 2007"
is likely to achieve the aims it set out to accomplish which is no company will be safe
from legal sentencing if they neglect the health and safety procedures which directly
causes the death. Moreover, the breach of duty of care by the legal person will be
sanctioned under this act. However, there are some shortcomings with "Corporate
Manslaughter and Corporate Homicide Act 2007".
It is worth noting that the scope of application of "management failure" is limited
to the senior management and the junior management behavior is not within the scope
of the law. The biggest concern in this is to limit the application of the law to the
"senior management" will encourage big companies in cover to delegate
responsibility of safety and health management functions to junior management in
order to avoid corresponding criminal charge.
The next shortcoming of this act is it is unable to hold individuals culpable where
only the company can be found liable under the act but not any individual members of
the company. The act denies the possibility of any individual becoming a defendant in
a company's manslaughter lawsuit. Therefore, there is no result of an individual being
convicted for assisting, abetting, or instigating a company to commit manslaughter
crimes under the Act24. It can be seen that the company’s manslaughter crime under
the Act fully applies the "single penalty system" that only sanctioned the company
which is only consider the company’s business operations without taking personal
actions into consideration. This issue is criticized although this approach reflects the
beginning purpose of the legal reform. This is because it is believed that the provision
of exempting individuals from criminal responsibility and only sanctioning the
company is ineffective in practice. The reason behind this is the company's activities
is always operate through natural persons. The lack of criminal punishment against
individuals will decrease the deterrent effect of the law itself. Thus, it will not prompt
the company’s management personnel to focus on the safety and health issues.
Further shortcomings of the "Corporate Manslaughter and Corporate Homicide
Act 2007" are outlined in sections 3 to 7 of the act which is excluding the criminal
liability for manslaughter of public authorities. Those authorities include military
activities25, policing of law enforcement26, responses to emergency situations27 and

24
S18
25
S4
26
S5
27
S6
child protection and probation functions28. This shows the more restrictions of this act
where it limits its scope to hold government departments and other public bodies
liable for the duties of care they owe to their employees. Considering the purpose of
the act was to grow the prosecution rates and to hold legal person to account for their
breaches of duty of care, but it seems that the act is stating something completely
different to what it in practice does.
The following shortcoming of the act is the sanctions under this act. Firstly, the
unlimited fines that imposed to the companies may seem to have strong deterrent
effect to the big companies. However, in realistic, it is ineffective as the senior
management test may protect the big companies from convicted and subjected to the
fines. This can be referred to the point stated above where big companies will
delegate the responsibility of safety and health management functions to junior
management and the requirements of senior management test will not be satisfied.
Moreover, the fines issued differently on different cases and some represented a high
percentage of the company’s turnover whereas some represented a smaller percentage
of company’s turnover. This may be inconsistent to the fines issued and may be
unfair29. Other than that, the court may order a remedial order under this act.
However, the impact is limited under this act. With section 9(3) of the act needed the
Health and Safety Executive to authorize a remedial order being imposed30, it is not
likely to become a punishment that they are now willing to use. Thus, the remedial
orders became an ineffective punishment. The act also fails to impose custodial
sentences because of the lack of individual liability which is something that the
common law offence used to issue. One of the example of a custodial sentence being
imposed under common law is the case of R v Kite & OLL Ltd31 where Kite was
convicted and was punished to two years imprisonment. The unwanted effect of the
act failing to include custodial sentences could gives the thought that the offence has
now become less serious and this issue could be highly influence the acts which try to
achieve its aims.
The last shortcomings of the act is the fact that its regime has not been strongly
and largely tested. The under utilization and the lack of severity of the act can be

28
S7
29
Steve Tombs,The UK’s corporate killing law: Un/fit for purpose?(2018) 18 488-507
30
S9(3)
31
R v Kite and OLL Ltd [1994]
shown in the statistics. Of the 26 convictions up till 2017, only 7 have imposed a
sanction which reached the minimum figure of £500,000 fine under the original
sentencing guidelines32.
In conclusion, the British common law has gone through nearly a century of
continuous investigation on the problem of corporate manslaughter, from the
beginning of complete refusal to the introduction of the "identification principle" as
an important standard for identifying the company’s criminal liability. However, it is
undeniable that the limitations of the "identification principle" itself have brought
difficult issues for the British courts in the cases related to corporate manslaughter. In
this context, the "Corporate Manslaughter and Corporate Homicide Act 2007" has
established in order to solve the problems. The act abandons the principle in common
law of attributing manslaughter to companies, and creates a new criminal charge
specifically for corporate organizations such as companies. But as what mentioned in
the article, this act is not perfect. There are many controversial contents in it. In any
case, it is undeniable that the introduction of the "Corporate Manslaughter and
Corporate Homicide Act 2007" is an important step in the development of British
common law.
(2950 words)

Bibliography
Statutes
Corporate Manslaughter and Corporate Homicide Act 2007
S1(1)(a)
S1(1)(b)
S1(3)
32
En.wikipedia.org. 2021. Corporate Manslaughter And Corporate Homicide Act
2007.<https://en.wikipedia.org/wiki/Corporate_Manslaughter_and_Corporate_Homicide_Act_2007#Pe
nalties> [Accessed 11 January 2021].
S1(4)(c)(i)
S1(4)(c)(ii)
S1(6)
S4
S5
S6
S7
S9(3)
S18

Cases

DPP v Kent & Sussex Contractors, Limited [1944] 1 KB 146

H.L. Bolton (Engineering) Co. Limited v T.J. Graham & Sons Limited [1957] 1 QB
159，172.
John Henshall (Quarries) Limited v Harvey [1965] 2 QB 233.
R. v P&O European Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72
R v Cotswold Geotechnical Holdings Ltd[2011] EWCA Crim 1337
R v Kite and OLL Ltd [1994]
R v Cory Brothers & Company Limited [1927] 1 KB 810
R v ICR Haulage Limited & Others [1944] KB 551
Tesco Supermarkets Ltd. v. Nattrass [1971] UKHL 1[1972] AC 153

Books
Her Majesty's Stationery Office, Blackspot Construction : Study of Five Years Fatal
Accidents in the Building and Civil Engineering Industries. (HSE Books 1988)

Ormerod, D., Hogan, B. and Smith, J., 2005. Smith & Hogan Criminal Law. 11th ed.
London: LexisNexis, p.171.

Journals
Eilis Ferran,Corporate attribution and the directing mind and will (L.Q.R. 2011,
127(Apr), 239-259
Steve Tombs,The UK’s corporate killing law: Un/fit for purpose?(2018) 18 488-507

Report
Law Commission, Legislating the Criminal Code: Involuntary Manslaughter report
No. 237 (1996)
Websites

En.wikipedia.org. 2021. King's Cross Fire.<https://en.wikipedia.org/wiki/King

%27s_Cross_fire> [Accessed 11 January 2021].

En.wikipedia.org. 2021. Clapham Junction Rail

Crash.<https://en.wikipedia.org/wiki/Clapham_Junction_rail_crash> [Accessed 11
January 2021].
En.wikipedia.org. 2021. Corporate Manslaughter And Corporate Homicide Act
2007.<https://en.wikipedia.org/wiki/Corporate_Manslaughter_and_Corporate_Homici
de_Act_2007#Penalties> [Accessed 11 January 2021].

Sharpe, A., 2021. R V P&O European Ferries (Dover) Limited –

Timerity.<https://timeritous.wordpress.com/tag/r-v-po-european-ferries-dover-
limited/> [Accessed 11 January 2021].

The Maritime Executive. 2021. July 6, 1988: The Piper Alpha Disaster.
<https://www.maritime-executive.com/article/july-6-1988-the-piper-alpha-disaster>
[Accessed 11 January 2021].