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Corporate responsibility for industrial
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Corporate responsibility for industrial incidents - The Open ...
About this free course
This free course is an adapted extract from the Open University course W822 Business, human rights
law and corporate social responsibility: www.open.ac.uk/postgraduate/modules/w822.
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www.open.edu/openlearn/money-management/corporate-responsibility-industrial-incidents/content-sec-
tion-0
There you’ll also be able to track your progress via your activity record, which you can use to
demonstrate your learning.
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Corporate responsibility for industrial incidents - The Open ...
Contents
Introduction                                                           4
Learning Outcomes                                                      5
1 Workplace incidents in the UK                                        6
2 A historical perspective: The development of business accountability
from the nineteenth century                                            8
    2.1   Economic and political doctrine of laissez-faire                                                                                                                      8
    2.2   Development of employment law and employers' liability                                                                                                                9
    2.3   Development of employers' duty of care                                                                                                                               11
    2.4   Imposition of vicarious liability                                                                                                                                    11
    2.5   Statutory health and safety regime – a summary                                                                                                                       12
3 Corporate manslaughter                                                                                                                                                       14
    3.1 Common law gross negligence manslaughter                                                                                                                               14
    3.2 The history of corporate manslaughter prosecutions in the UK                                                                                                           16
    3.3 Corporate Manslaughter and Corporate Homicide Act 2007                                                                                                                 18
4 Corporate responsibility in an international context                                                                                                                         21
    4.1 Comparative examples of legislating to prevent corporate killings          21
    4.2 The impact of globalisation on corporate accountability for industrial
    incidents                                                                      22
    4.3 The application of international law and human rights principles to industrial
    incidents                                                                      22
    4.4 The role of CSR in this context                                            23
5 Case Study: Bhopal                                                                                                                                                           25
    5.1 Background to Bhopal                                                                                                                                                   25
    5.2 The incident and its consequences                                                                                                                                      26
    5.3 Safety issues at the plant                                                                                                                                             28
    5.4 The people affected by the Bhopal incident                                                                                                                             29
    5.5 Environmental damage from the Bhopal plant                                                                                                                             31
    5.6 Corporate responsibility for the Bhopal plant                                                                                                                          32
    5.7 The immediate responses to the gas leak at Bhopal                                                                                                                      33
    5.8 Legal accountability for the Bhopal gas leak                                                                                                                           34
    5.9 Liability for the contamination at Bhopal                                                                                                                              37
    5.10 What is there to prevent another Bhopal?                                                                                                                              38
Conclusion                                                                                                                                                                     40
References                                                                                                                                                                     40
Acknowledgements                                                                                                                                                               41

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Corporate responsibility for industrial incidents - The Open ...
Introduction

Introduction
Commercial activity has the potential to cause harm to those involved in the production
and delivery process. Ensuring the health and safety of the workforce is an intrinsic part of
responsible business practice and is an area that has long been subject to legal regulation
in developed countries. At present, the issue of corporate responsibility for industrial
incidents is a matter which is almost exclusively dealt with at the national level and so the
legal protections available can vary greatly from country to country. International controls
are few, although there is a growing impetus to ensure that the regulatory net is cast more
widely at the international level. (An example is the 1992 Convention on the
Transboundary Effects of Industrial Accidents, which was designed to protect people and
the environment from the effects of industrial accidents.)
Section 1 of this course will consider workplace incidents in the United Kingdom.
Section 2 of this course will outline the development of civil liability for workplace incidents
in the UK.
In Section 3 you will focus on the efforts to pursue criminal accountability for industrial
deaths in the UK in the form of the offence of ‘corporate manslaughter’. Such an Anglo-
centric focus is of value, as the UK was the first nation to become industrialised and so
was first faced with these issues some 150 years ago. The UK’s history reveals the
evolution of legal accountability (both civil and criminal) for industrial incidents and
highlights issues commonly encountered in imposing legal liability in this area. Many of
the principles developed have subsequently been adopted and improved upon by other
nations around the world. However, corporate accountability for workplace incidents still
remains undeveloped and ignored in some developing nations, making them attractive for
commercial exploitation by multinational enterprises (MNEs). The UK’s experience
provides a good starting point with which to benchmark the nature and adequacy of the
legal protections offered in other nations.
In Section 4 the focus will broaden to encompass the international context. You will
consider the interrelationship of the development of legal controls on business with
international and human rights principles and with emerging corporate social responsi-
bility (CSR) policies.
Section 5 then uses the Bhopal case study to shed light on a more global view of the issue
of legal accountability for industrial incidents.
This OpenLearn course is an adapted extract from the Open University course
W822 Business, human rights law and corporate social responsibility.

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Learning Outcomes
After studying this course, you should be able to:
●   explain the development of civil liability for the physical harm caused to workers by business activity and outline
    the health and safety regime in the UK
●   explain the basics of legal accountability in the English legal system, as achieved by way of prosecutions using
    the Corporate Manslaughter and Corporate Homicide Act 2007 (‘the 2007 Act’) and give a reasoned view as to
    whether the 2007 Act is likely to significantly improve the CSR of businesses across industry sectors with UK-
    based management
●   distinguish between the approaches taken to corporate manslaughter in different jurisdictions
●   undertake independent learning and research to evaluate and interrogate a case study
●   explain the development of principles of international and human rights law that have relevance to safe working
    practices and the role of CSR policies in this context.
1 Workplace incidents in the UK

1 Workplace incidents in the UK
In his essay, 'Violent corporate crime, corporate social responsibility and human rights',
Slapper (2011) outlines some of the causes and effects of ‘industrial accidents’. He
explores the spectrum of the human cost of injuries inflicted at work. They include
temporary and permanent disabilities, maiming or death. The ramifications of ‘industrial
accidents’ that result in the death of employees or other workers reach beyond the
anonymity of workplace accident statistics. Each fatality caused by an ‘industrial accident’
reflects the end of a life:

      Every year more than 200 employees are killed in work-related incidents. The
      loss of a breadwinner, a mum, a dad, a spouse or a much-loved brother or
      sister can have a devastating emotional and financial impact.
                                                                                                (Eagle, cited by the Ministry of Justice, 2008)

  Activity 1
  In the UK, the Health and Safety Executive (HSE) produces statistics for the types and
  numbers of workplace-related injuries and fatalities in each year. Go to
  the HSE's website and find this year’s HSE statistics report. Those of you who are
  studying from another country may also wish to look for the health and safety data for
  your country as well.
  When considering these statistics, you need to look at the range of workplace injuries
  that are covered and note down how many fatal injuries occurred in the year of the
  report that you have accessed.
  Comment
  Hopefully you found the HSE’s report helped to inform you about the nature and extent
  of the issue in the UK. In terms of fatalities you will see that a distinction is made
  between deaths caused by work-related diseases and those that have occurred
  through some catastrophic accident. In the case of the former, those caused by effects
  of exposure to asbestos are highlighted. In the case of the latter, the 2009–10 statistics
  record 152 deaths, representing 0.5 fatalities per 100,000 workers. It also records that
  80 of these deaths were in the construction and agricultural sectors.
  Those of you studying from another country may find it interesting to compare these
  figures with those of your own country.

The traditional term ‘industrial accident’ can be misleading, as it implies that it is an
unavoidable and inherent part of industrial activity, and it fails to distinguish those
incidents that could have been avoided by better working practices. For this reason, it is
now common policy among police and investigative teams to refer to an event in which
damage has resulted, but the cause of which is not yet known, as an ‘incident’ or
‘occurrence’, as this provides a neutral, non-judgmental description of the event. (The
Department for Transport hosts a number of policy documents on use of language in such
instances.)

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1 Workplace incidents in the UK

  Activity 2
  Read Reading 1: extracts from Slapper (2000), ‘Blood in the bank: social and legal
  aspects of death at work’. Then outline how common social perceptions have affected
  the way in which deaths in the workplace are treated.
  Click here to access Reading 1
  Comment
  The issue of deaths at work reveals the ambivalent attitude of society to corporate
  criminality more generally. The fact that they have been labelled as ‘accidents’ by
  those responsible for investigating them reflects the assumption made by society at
  large that criminality is not involved in workplace processes. The author points to the
  commonly held view that as commercial activity has a social value the risk taken by a
  business organisation is likely to be justifiable and so should not be labelled as
  ‘criminal’, a term more traditionally given to gratuitously anti-social behaviour.

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2 A historical perspective: The development of business accountability from the nineteenth century

2 A historical perspective: The
development of business accountability
from the nineteenth century
The nineteenth century is a good starting point for studying into the development of
business accountability. The industrial revolution was at its height, during which time
hundreds of thousands of people died in incidents in mines, mills and on the railways.
Businesses tended not to value the safety of their workers. In her novel The Mill on the
Floss, George Eliot captured how extensively industrial production pervaded Victorian
community life:

      good society, floated on gossamer wings of light irony, is of very expensive
      production; requiring nothing less than a wide and arduous national life
      condensed in unfragrant, deafening factories, cramping itself in mines,
      sweating at furnaces, grinding, hammering, weaving under more or less
      oppression of carbonic acid.
                                                                                                                                                      (Eliot, 2008 [1860])

Figure 1 A typical English mill town
This vivid portrait Eliot depicts of ‘deafening factories’, ‘cramped’ mines and ‘oppressive’
fumes needs to be placed in the context of life at that time: infant mortality was high and
life expectancy was short. It was still generally assumed that life for the working classes
would be what the seventeenth-century moral philosopher Thomas Hobbes described as
‘nasty, brutish and short’. There were notable exceptions to this rule and some
industrialists such as the Cadbury brothers went to great lengths to improve conditions for
their workers.

2.1 Economic and political doctrine of laissez-faire
The economic and political doctrine of laissez-faire prevailed and characterised the
popular rhetoric in government and among other institutions in the UK. ‘Laissez faire’

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2 A historical perspective: The development of business accountability from the nineteenth century

originates from the French and translates literally as ‘allow to do’. However, it has since
taken on particular meanings. In the first sense, the Oxford English Dictionary (2009)
defines ‘laissez-faire’ as meaning ‘the policy of leaving things to take their own course;
without interfering’. In the second dictionary sense, it has a meaning germane to
economics: ‘abstention by governments from interfering in the workings of the free
market’.
The legal legacy of the laissez-faire doctrine can still be seen in the development of
English contract law, in particular, in the contractual doctrine of caveat emptor (let the
buyer beware) and also the assumption that contractual parties have equal bargaining
power.

2.2 Development of employment law and
employers' liability
The rigor and potential harshness of laissez-faire can be seen in the early development of
employment law, with its emphasis on the obedience of the ‘servant’ to the orders of the
‘master’ and the absence of job security for the servant. The assumption is that the worker
can choose to leave and find another job if he or she wishes.

2.2.1 Doctrine of common employment
The influence of laissez-faire can also be seen in the way in which legal responsibility for
workplace incidents developed during the course of the nineteenth century. The much
reviled doctrine of ‘common employment’, deriving from the judgment of Lord Abinger in
Priestley v Fowler [1837] 3 M & W, ensured that employers were not liable for the personal
injuries of their workers when caused by the negligence of another worker. In Priestley v
Fowler a coachman employed by the defendant overloaded a carriage making deliveries,
causing it to overturn and injure the claimant, another employee who was riding on the
carriage. In this case, the employer had no means of knowing about his worker’s
negligent actions. The judicial fear was that the imposition of liability on employers in such
circumstances would lead to a proliferation of similar claims, a resultant loss of control by
employers and an increased cost of production, which would, in turn, adversely affect
economic growth.
Implicit in the doctrine of common employment was the assumption that when workers
contract to work they know, or ought to know, what risks they are exposing themselves to.
This was taken to include the knowledge that the want of care on the part of a fellow
worker may be injurious or fatal and an acceptance that it is a risk which an employer
cannot be expected to offer protection from (Alderson, B. in Hutchinson v York, Newcastle
and Berwick RY [1850]). This judicial approach was reflected in the fact that up until the
late nineteenth century employers could raise the defence of consent (known as volenti
non fit injuria – a person who consents to the risk of harm from an activity cannot then
make a claim for compensation for personal injuries and damage that result from that
activity) to claims brought by workers injured as a result of negligence in the workplace. In
addition, workers who were found to be contributory negligent in failing to have sufficient
regard to their own safety even in a small way were denied any compensation from their
employer. There was little or no recognition of the economic reality that in most cases
workers have no practical alternative but to continue to work and to subject themselves to
the risk of unsafe workplace practices. Thus, employers were effectively immune from

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2 A historical perspective: The development of business accountability from the nineteenth century

liability for industrial incidents and there was little or no incentive for employers to develop
safe industrial practices.

2.2.2 Nineteenth century reforms
The issue of working conditions for the new industrial populations was eventually brought
to public attention by a number of nineteenth-century philanthropists and socially active
novelists such as George Eliot (1819–1880) and her contemporary, Elizabeth Gaskell
(1810–1865). Gaskell, the author of North and South (2003 [1855]), was a social
progressive and liberalist whose fiction was based on her own observations and social
investigations in her home community of Manchester. She recognised that the comforts of
middle-class existence depended on processes that routinely exposed the working
classes to maiming, deprivation and insecurity.
The mid to late nineteenth century saw a plethora of new legislation designed to improve
working conditions, such as the various Factory Acts and also Acts designed to regulate
working conditions in shops, offices and railway premises. Many of these provisions have
now been consolidated and updated into a comprehensive statutory framework under the
Health and Safety at Work etc. Act 1974 (HASAWA).
The protected position of employers was slowly eroded during the later part of the
nineteenth century as judicial opinion veered more in favour of the worker. The impact of
the doctrine of common employment was reduced by the Employer’s Liability Act of 1880
under which employers were held responsible for negligent acts of their managers,
superintendents and foremen that resulted in harm to their workers. In 1891, the House of
Lords determined that a worker’s consent could not be inferred from their awareness of
the risk of harm they may suffer as a result of their employer’s negligence.

      Case Study: Smith v Baker & Sons [1891] AC 325
      Mr Smith worked for Baker & Sons as a navvy on the railways. While
      constructing a railway line through a cutting he worked on the ground while a
      crane often jibbed heavy stones over his head. Both he and his employers were
      aware of the risk of a stone falling, but no warning was given to him when the
      crane jibbed. As Mr Smith’s job entailed breaking up the ground he had little
      opportunity to look up himself in order to take evasive action. Eventually, a
      stone fell from the crane and injured him. The House of Lords held that Mr
      Smith’s awareness of the risk he was taking should not be regarded as consent
      to his employer’s negligence.
      In his judgment, Lord Herschell distinguished between two different situations.
      The first is where a worker consents to undertake an inherently dangerous task
      and all reasonable care has been taken to render it as safe as possible. The
      example given was that of a sailor whose job is to climb the rigging of the ship.
      He knows and appreciates that there is an unavoidable risk in the task he is
      undertaking and if he is injured no liability arises as the employer has not been
      negligent. The second situation differs, as an avoidable risk has been created
      or enhanced by the negligence of the employer. Mr Smith’s case fell into this
      category, as a warning could have been given to ensure that Mr Smith was not
      at risk. In these types of cases, an employer cannot claim that the worker’s
      continued employment implies his or her consent to that risk.

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2 A historical perspective: The development of business accountability from the nineteenth century

Implicit in this judgment is the recognition that workers rarely have an equal bargaining
position with their employers. They are often forced by economic necessity to accept less
than ideal working conditions and it is wrong for employers to exploit that vulnerability.
This change of judicial attitude is reflected in the fact that during the same period the
courts were also developing and refining the principle that employers owe a duty of care
to their workers.

2.3 Development of employers' duty of care
Lord Wright stated in Wilsons and Clyde Coal Co v English [1938] AC 57 that an employer
was under a duty to take reasonable care for the safety of his men. It was convenient to
divide it up threefold, with the obligation to take reasonable care to provide:

●     a competent staff
●     adequate material
●     a proper system and effective supervision.

Lord Wright stressed that these were ‘fundamental obligations of a contract of
employment ... for which employers are absolutely responsible’. As such, these duties are
not able to be delegated to others and so cannot be avoided by employers.
These duties have been developed and refined by subsequent case law. In particular, it
now also encompasses the duty to provide a safe place of work and has been extended
beyond protection from physical harm in the workplace to embrace the protection of the
employee’s mental well-being, too.

2.4 Imposition of vicarious liability
The protection provided was further enhanced by the development of the principle that
employers are liable for the negligent acts of their employees. The imposition of this form
of vicarious liability is significant, as the employer may not be aware of the employee’s
negligent act or omission, but will still be held legally responsible for the harm caused. In
effect, this imposes a form of strict or no-fault liability on employers.
There are several moral and practical rationales for the imposition of vicarious liability in
this context:

●     Employees are engaged in the activities on behalf of their employers, who stand to
      make a profit and so should take moral and legal responsibility for the consequences
      of these activities.
●     Negligent employees are unlikely to be financially able to meet the costs of
      compensation. Employers are in a better position to insure for the loss (often referred
      to as the ‘deep pocket’ justification). In the UK and in other developed countries
      public liability insurance is compulsory, ensuring that victims are more likely to
      receive compensation for their loss. The cost of insuring against liability can be
      incorporated in the costs of production and so be redistributed among consumers of
      the product or service.
●     The imposition of liability encourages good working practices and ensures that
      employers have a financial interest in encouraging health and safety in their working
      practices.

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2 A historical perspective: The development of business accountability from the nineteenth century

As vicarious liability is potentially onerous, its imposition has been well circumscribed by
the courts. It applies only to employees who are employed under a contract of
employment. This excludes independent contractors and – probably more significantly – it
excludes liability for the acts of casual workers not employed under a contract of
employment. In addition, proof that the employee was acting ‘in the course of
employment’ is a vital element in attributing liability to the employer. This has been
interpreted to include acts which although unauthorised are within the scope of the
employee’s employment. So, for instance, a bus company will be vicariously liable for the
physical harm caused when their employee bus driver crashes the bus while driving too
fast, even if the bus company has imposed an express prohibition on speeding. The
judicial view has traditionally been that the bus driver is undertaking the task that he or
she was employed to do, even if they then carry it out in an unauthorised manner (Limpus
v London General Omnibus Co [1862] Ex Ch). In recent years, this approach has been
extended by the courts and employers have been held vicariously liable for the crimes
committed by employees where they have a ‘close connection’ to the job undertaken by
the employee (Lister v Hesley Hall Ltd [2001] UKHL 22). The Court of Appeal extended
the approach in Lister in Mattis v Pollock (trading as Flamingos Nightclub) [2003] 1
WLR 2158. A nightclub owner was held vicariously liable for acts of violence by a
doorman employee. The Court of Appeal held that a ‘broad’ approach was required in
assessing whether the acts of an employee were sufficiently connected with the duties of
his employment so as to justify imposing vicarious liability. A broad approach has also
been adopted by employment tribunals to the issue of vicarious liability in cases of sexual
and racial harassment in the workplace. As a consequence, employers have been found
vicariously liable for the violent acts and racial and sexual abuse of employees committed
while at work. You may find this difficult to justify, but arguably it serves to ensure that
employers are careful to recruit employees who are trustworthy and that they have
adequate systems of supervision and control in place.

2.5 Statutory health and safety regime – a summary
Most developed nations now have statutory schemes which regulate health and safety in
the workplace. As mentioned in Section 2.2.2, in the UK this takes the form of the
HASAWA, which creates a comprehensive framework of controls.

Figure 2 A health and safety sign
A detailed knowledge of the scheme is beyond the scope of this course, but it is worth
noting that the types of liability imposed on businesses take the form of both criminal and
civil liability and that certain regulatory offences impose strict liability. The HASAWA
imposes a statutory duty on employers to ensure that the workplace is safe. The duties
are wide-ranging and they cover methods/systems of work, use of machinery and

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2 A historical perspective: The development of business accountability from the nineteenth century

equipment and the training and supervision of staff. There are also specific regulations for
the provision of health and safety standards in different industrial sectors.
Growing emphasis is placed on the development of safe working practices by businesses,
the prevention of workplace incidents and the development of a safety-conscious culture.
Organisations are increasingly encouraged to be proactive in their management of risk at
work, to conduct health and safety audits, to carry out risk assessments of the impact of
their activities and to formulate their own tailor-made health and safety policies.
The HSE and local authorities are charged with enforcing the provisions of the Act.
Inspectors are deployed to ensure that businesses comply with their statutory obligations
and to provide a source of advice and guidance in the workplace. They have wide powers
of enforcement to address any breaches that they find. The health and safety regime is
overseen by the Health and Safety Commission, which has a strategic policy role.
When you looked at the HSE’s annual statistics at the beginning of this course, you may
have noticed that the statistics for the number of health and safety prosecutions are
recorded. The figures for 2009/10 reveal that there were 737 convictions for health and
safety offences, which represented total fines of £11.6 million (an average of £15,817 per
breach). At the time of writing the largest fine ever imposed was £7.5 million on Balfour
Beatty, the railway contractor which was found guilty of health and safety infringements in
the Hatfield rail crash in 2000; Railtrack was also fined £3.5 million for its failure to
supervise its contractor (Balfour Beatty). This crash was caused by the contractor’s failure
to maintain the track adequately and resulted in four deaths and over one hundred people
sustaining injuries.
The size of the fines imposed on business organisations is widely regarded as being an
insufficient incentive to encourage large MNEs to be more proactive in this area. Arguably,
fines need to be large enough to raise the concern not just of the organisation’s
management, but of its shareholders, too. However, the broader costs of systemic
corporate failings should not be underestimated: for instance, the estimated costs of £722
million for repairs and compensation as a consequence of the Hatfield crash was directly
responsible for the commercial failure of Railtrack.

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3 Corporate manslaughter

3 Corporate manslaughter
Incidents such as the Hatfield rail crash are regarded by public opinion as so
reprehensible that the parties responsible should face the more serious criminal charge of
manslaughter. As you will have gathered from reading the previous section, the history of
prosecutions of commercial enterprises for relatively minor health and safety abuses in
the workplace is a successful one. However, in contrast, the record of prosecutions for
manslaughter for deaths occurring in the workplace is not. In the case of the Hatfield
crash, the prosecutions for manslaughter against Balfour Beatty, Network Rail (Railtrack’s
successor), a regional director, two managers and a rail engineer employed by Balfour
Beatty were all unsuccessful.
You will now look in more detail at the issues involved in holding business organisations
criminally accountable for deaths caused by their activities. You will then consider the
provisions of the Corporate Manslaughter and Corporate Homicide Act 2007 (‘the 2007
Act’), which represents a major statutory reform of the law in this area.
Since the mid-1990s a series of high-profile disasters caused by serious corporate
failings, but for which there were no corporate manslaughter convictions, have highlighted
the flaws in the existing legal system. They exposed the fact that there were particular
difficulties in satisfying the elements of the common law manslaughter offence when
applied to incorporated organisations.
The difficulty in securing convictions for corporate manslaughter was twofold. The first
issue was that business organisations prosecuted for workplace deaths were invariably
charged with the common law crime of ‘gross negligence manslaughter’.

3.1 Common law gross negligence manslaughter
Dating originally from the nineteenth century, this offence was crafted by the courts in a
series of cases which were designed to identify individual liability for death in cases where
the accused owed a duty of care for the victim. It was often used in cases involving
professional misconduct such as serious medical failures.

 Box 1 Gross negligence manslaughter
 The test to be applied to determine whether a person has committed gross negligence
 manslaughter was articulated by Lord Woolf LCJ in R v Adomako [1994] UKHL 6, who set
 out the five elements required:

 1.    a duty of care owed by the defendant to the victim
 2.    a breach of that duty
 3.    a risk that the defendant’s conduct could cause death
 4.    evidence that the breach of duty caused the victim’s death
 5.    the defendant’s conduct fell so far below the standards of a reasonable person in
       that situation that they should be labelled grossly negligent and deserving of
       criminal punishment.

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3 Corporate manslaughter

The fifth element of this test caused problems when applied to organisational failures.
Jurors have to determine whether the defendant’s conduct fell ‘so far below’ the standards
reasonably expected of an individual in the position of the defendant by judging whether
that conduct showed ‘such disregard for the life and safety of others’ as to amount to a
criminal breach of duty. This test is circular, as acknowledged by Lord Woolf in R v
Adomako. In an attempt to clarify the matter in R v Misra & Srivastava [2005] 1 Cr App R
328, paragraph 58, the Court of Appeal agreed that the term ‘reprehensible’ would be apt
to describe the nature of the conduct:

      The essence of the matter which is supremely a jury question is whether,
      having regard to the risk of death involved, the conduct of the defendant was so
      bad in all the circumstances as to amount in their judgment to a criminal act or
      omission.
                                                                                                                             (R v Misra & Srivastava [2005])

In practice, this proved to be a particularly difficult question to answer, in the case of the
prosecution of both individuals and companies.
The second issue in securing corporate manslaughter convictions derives from the fact
that a vital part of establishing guilt for gross negligence manslaughter is the need to
attribute individual culpability for that death. This requirement proved an insurmountable
difficulty for prosecutors in the case of corporate killing. The courts have insisted that
corporate culpability could be ascertained only and exclusively with reference to the
demonstrable mindset of a director or other controlling or directing mind (this is known as
the doctrine of identification). Slapper has pointed to how this level of prosecutorial
difficulty in affixing a criminally guilty corporate mind amounted to corporate impunity:

      For the early part of its history, the company lay outside criminal law. ‘It had no
      soul to damn, and no body to kick,’ said 18th-century Lord Chancellor Lord
      Thurlow. The main difficulty in using the current [pre-2007 Act] law of
      manslaughter to proceed against corporations is that the rules evolved to
      reflect individuals. They are concerned with evaluating the ‘state of mind’ of the
      defendant, and companies do not have easily identifiable ‘minds’.
                                                                                                                                                               (Slapper, 2002)

Lord Denning (in Bolton (Engineering) Co Ltd v Graham & Sons [1957] IQB 159)
attempted to address the issue by using an anthropomorphic metaphor when he
described the company as like a human body:

      some of the people in the company are mere servants and agents who are
      nothing more than hands to do the work and cannot be said to represent the
      mind or will. Others are directors and managers who represent the directing
      mind and will of the company, and control what it does. The state of mind of
      these managers is the state of mind of the company and is treated by the law as
      such.

This analogy is attractive and memorable, but resulted in corporate liability being
restricted to the acts of directors and a few high-level managers. It proved singularly
difficult to establish that an individual in such a position had the requisite guilty mind for
what is invariably a failing at a lower level in the workplace. In fact, it unduly favoured
larger corporations, which escaped criminal liability for the acts of employees who

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3 Corporate manslaughter

managed the day-to-day activities of the corporations. It followed that a company with a
diffuse and disordered system of management, hosting a poorly defined internal
communications system, was less susceptible to a successful prosecution for a death
caused by it than a well-structured, organised company in which clear lines of authority
existed. This paradoxical gap in legal protection provided a perverse incentive for the
system of management within a company not to adequately or clearly designate
responsibility for health and safety concerns.

  Activity 3
  Read Reading 2: an extract from Slapper (2011), 'Violent corporate crime, corporate
  social responsibility and human rights'. In this extract Slapper considers the ways in
  which this obstacle to attributing liability created a difficulty in terms of bringing
  prosecutions under the common law against corporations alleged to have committed
  the corporate manslaughter offence.
  Click here to access Reading 2
  Comment
  Slapper makes the case for looking at the reality of the situation. After all, since the
  individuals behind a corporation enjoy the benefits of collective identity, they should
  also be exposed to determinations of blameworthiness. This is an argument that has
  been influenced by other European perspectives, but it remained a strictly academic
  one until the shift in direction in the approach of the 2007 Act.

Gobert goes even further. He argues that a corporation’s failure to take precautions by
way of implementing policies and training to avoid deaths derives from its corporate
culture (Gobert, 1994a; Gobert, 1994b; also Geraghty, 2002, p. 327). As a consequence,
he rejects the notion that corporations should be treated in the same way as natural
persons (i.e. looking for a ‘guilty’ mind) and advocates that different legal concepts should
underpin the liability of artificial persons. This view reflects the structures of modern
corporations, which are more often decentralised and where crime is less to do with the
misconduct by or incompetence of individuals and more to do with systems that fail to
address problems of monitoring and controlling risk.

3.2 The history of corporate manslaughter
prosecutions in the UK
What follows is a historical summary of the corporate manslaughter offence in the UK.
The corporate manslaughter ‘story’ began with the case of Glanville Evans (Slapper,
2011, p. 86). The next instalments of the corporate manslaughter story came over 20
years after his death when, in the 1980s and 1990s, there was a series of high-profile
incidents of corporate failings but few convictions for corporate manslaughter. For
instance, the prosecution in 1990 against P&O Ferries (Dover), after the Herald of Free
Enterprise capsized with the deaths of 192 people, resulted in acquittals for manslaughter.
This would appear to be because the jury could not be sure beyond reasonable doubt that
the resulting deaths were due to ‘criminal’ breaches of duty as required by the test in
Adomako.

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3 Corporate manslaughter

In recent years there have been several rail disasters in the UK, such as those at
Clapham Junction in 1997, Hatfield in 2000 and Potters Bar in 2002. Inquiries into the
causes of these incidents reveal a variety of organisational failures including the failure to
install up-to-date safety equipment and to introduce new rolling stock, the inadequate
training of drivers, the failure to undertake track repairs and poor maintenance of the
points, the failure of safety systems and the lack of an appropriate safety culture, to name
but a few. Despite the evidence of corporate incompetence, complacency and cost-cutting
revealed by the inquiries into each disaster and a cumulative death total of nearly one
hundred people, prosecutions for manslaughter against the organisations concerned and
their officials were either not proceeded with for lack of evidence, or ultimately failed in
obtaining a conviction.

      Case study: the Southall rail crash
      The Southall crash occurred in September 1997 when the driver of a high-
      speed passenger train run by Great Western Trains (GWT) ignored a red signal
      while travelling at a speed of 125 miles per hour and collided with a freight train
      crossing the main lines, killing seven people and injuring a further 151.
      Approximately £10 million worth of damage was caused. Three inquiries were
      launched, each focusing on whether the passenger train had passed a signal at
      red or was mistakenly shown a green light. The Health and Safety Commission
      report found that the primary cause of the accident was the driver’s failure to
      respond to two signals warning of the freight train on the track ahead. He could
      not account for why he had missed the signals, but the report said he may have
      ‘dozed off’.
      There were two safety systems on the train that, if functioning and used
      appropriately, could have prevented the tragedy. These were the basic
      Automatic Warning System (AWS) and a trial version of the more advanced
      Automatic Train Protection (ATP). However, the AWS was broken and the ATP
      was switched off because the driver had not been trained how to use it. There
      was no second driver in the cab. These were not isolated or individual
      mistakes, but were commonly understood as part of a systemic failure of safety
      management. A prosecution of GWT for manslaughter, relying on the common
      law offence of gross negligence manslaughter, failed because there were
      insurmountable difficulties in finding one senior person in the company who had
      sufficient knowledge for grossly negligent culpability to be demonstrated.

The modest number of successful convictions for corporate manslaughter that occurred
invariably involved failures in a small company where it was possible to identify which
individuals were responsible for its health and safety obligations. In contrast with larger
organisations, the managing directors or equivalent in smaller organisations are generally
much more closely involved in the day-to-day running of the business. The reality is that it
is harder for the manager(s) in a smaller company to disavow knowledge of serious
irregularities in the adherence by the company to its health and safety policy, as there is a
much more limited pool of possible ‘controlling minds’.

      Case study: the Lyme Bay canoeing disaster
      In November 1994 the canoe hire company OLL Ltd and its managing director,
      Peter Kite, were convicted of the manslaughter of four students who had died

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3 Corporate manslaughter

      during a canoeing trip in Lyme Regis, Dorset, in March 1993. The school group
      was accompanied by a school teacher and two unqualified instructors. Those
      instructors had only basic proficiency skills in canoeing. The canoes capsized
      frequently and the group was swept out to sea. The canoeing centre which OLL
      Ltd ran had failed to provide distress flares and had not informed the
      coastguard of the expedition. Two instructors from the centre had resigned a
      year earlier in protest at poor safety conditions. The risks were serious and
      obvious.
      Only two people in the company had management responsibility, so the
      ‘controlling mind’ was easily identified.
      Mr Kite was sentenced to three years’ imprisonment, in the event reduced to
      two years on appeal. The company was fined £60,000.

3.3 Corporate Manslaughter and Corporate
Homicide Act 2007
Reform has now come in the form of the 2007 Act, which creates a statutory, specific
offence of ‘corporate manslaughter’. A corporation, be it a company, government
department or other Crown body, will be liable to face prosecution where a gross failing by
its senior managers to take reasonable care for the safety of their workers or other
individuals causes death.
This statutory offence is premised on a number of concepts previously established under
the common law, such as liability arising through the breach of a duty of care owed by the
organisation under the operation of the law of negligence. The offence of corporate
manslaughter is designed to complement, rather than replace, existing health and safety
offences, for which an organisation may still be prosecuted as an alternative to, or in
addition to, the new offence. Also, individuals within the organisation may still face
separate prosecutions for the common law crime of gross negligence manslaughter.
In this section you will consider the changes brought about by the 2007 Act in more detail.

  Activity 4
  This activity is intended to give you an insight into how the 2007 Act applies.
  On a computer access the Corporate Manslaughter and Corporate Homicide Act
  2007.
  Once you have done this, read Case study 1 and answer the question set out below.

           Case study 1: Stonebrick Ltd
           Conran Smith, a junior surveyor employed by Stonebrick Ltd, a national firm
           of property developers, was required to inspect the building work under-
           taken on the conversion of an eighteenth-century mill house into
           apartments. Unknown to him, the area manager, James Henry, had raised
           concerns about the quality of the work undertaken, in particular the failure to
           replace the rotten roof trusses. He had sent a report on the issue to Josef
           Schmann, the managing director responsible for operations and site safety.

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3 Corporate manslaughter

           However, Schmann was on long-term sick leave after a heart attack and the
           three other managing directors of the company had not taken on his
           responsibilities. As a consequence, James Henry’s report lay unread on
           Schmann’s desk.
           The foreman of the mill conversion, Winston Green, was aware of Henry’s
           concerns and he had asked the building team to prevent access to the roof
           space until the matter was resolved. However, Green did not check to
           ensure that his instructions had been carried out. If he had, he would have
           found that the barrier had not yet been constructed. Green was on his lunch
           break at the time of Smith’s visit and so the latter was not made aware of the
           potential danger. As a consequence, when Smith climbed into the roof
           space to inspect the insulation, the roof trusses collapsed, causing him to
           fall through to the next floor and to sustain fatal injuries.
           Explain when an organisation such as Stonebrick Ltd will be guilty of an
           offence of corporate manslaughter under the 2007 Act.

  Comment
  An organisation will be guilty of an offence under section 1(1) if the way in which its
  activities are managed or organised causes a person’s death and amounts to a gross
  breach of a relevant duty of care owed by the organisation to the deceased.
  There are several aspects to this:

           Section 1(3) stipulates that in order for an offence to be committed under
           section 1(1) the way in which the senior management has managed or organised
           the activities of the organisation must be a substantial element of the breach.
           ‘Senior management’ is defined in section 1(4)(c) as persons who play significant
           roles in the making of decisions about how the whole or a substantial part of its
           activities was to be managed or organised, or the actual managing or organising
           of the whole or a substantial part of its activities.
           The relevant duty of care is defined in section 2(1) and includes the duties owed
           by organisations under the law of negligence, so it covers duties owed to
           employees and people working for the organisation, the duties owed by occupiers
           of premises and duties owed in connection with certain specific activities such as
           construction and maintenance operations.
           The breach of this duty must be ‘gross’ as defined in section 1(4)(b), which means
           that the conduct must fall far below what can reasonably be expected of the
           organisation in the circumstances. This is a factor to be determined by the jury
           and section 8 sets out the factors to be taken into account. They must consider
           whether the evidence shows that the organisation failed to comply with any health
           and safety legislation that relates to the alleged breach and, if so, how serious
           that failure was and how much of a risk of death it posed.
           The jury may also consider the extent to which the evidence shows that there
           were attitudes, policies, systems or accepted practices within the organisation
           that were likely to have encouraged any such failure or to have produced
           tolerance of it and they must have regard to any health and safety guidance that
           relates to the alleged breach.
           In the case of Stonebrick Ltd, the prosecution will look at the role of the directors
           and any other managers responsible for the working practices which led to
           Smith’s death. The managing directors failed to take responsibility for Schmann’s

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3 Corporate manslaughter

           health and safety role in his absence. This would seem to be a sufficiently serious
           breach under the guidance provided by section 8 to be likely to amount to a
           contravention of the Act.
           James Henry, the area manager, did attempt to alert the relevant managing
           director, but arguably he should have done more to ensure that adequate
           measures were taken to prevent access to the dangerous area and to warn of the
           danger on the site. He may be sufficiently senior in the organisation to be
           considered as senior management for the purposes of section 1. Green, the site
           foreman, was responsible for health and safety on the site and did instruct his
           workmen to erect a suitable barrier, but failed to ensure that his instructions were
           carried out. It is unlikely that Green’s failures would be regarded as those of
           ‘senior management’ for the purposes of section 1.

There is evidence that the recent legislative intervention has given rise to a change in the
culture of the way that investigations and prosecutions are undertaken following a death in
the corporate context. Recent experience shows that investigators and prosecutors are
willing to deploy the full range of applicable criminal offences against both organisations
and individuals following a fatal accident (Bastable and Matthews, 2010).
It is difficult to predict the effectiveness of the reform. It may be that one of its greatest
achievements will be to highlight the debate concerning the nature of corporate
accountability for industrial incidents. At the time of writing there have been three
convictions for corporate manslaughter under the 2007 Act.

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4 Corporate responsibility in an international context

4 Corporate responsibility in an
international context
In this section the perspective broadens to consider how other countries have dealt with
the imposition of criminal liability for corporate killings. You will consider the potential for
the application of international law human rights principles and the impact of the
development of CSR policies.

4.1 Comparative examples of legislating to prevent
corporate killings
The UK model of legislating for corporate homicide is rooted in, and reflects, comparative
experiences in other legal jurisdictions (Slapper, 2011). We will now look at those other
legislative models, given that the 2007 Act has selectively taken from these.
Countries do differ in their approach to regulating and prosecuting corporations for health
and safety contraventions. The main difference between jurisdictions, in terms of their
approach towards regulation of corporate responsibility for deaths, is whether the focus is
primarily on individual liability or corporate liability. Some countries do not recognise
corporate criminal liability. Others impose only administrative penalties for criminal acts of
corporations.

  Activity 5
  You now need to choose, from the list provided below, one country as your focus.
  Alternatively, if you are studying this course from a country other than the UK you may
  decide that it would be a good idea to research the country that you are studying from.
  Using the skills as a legal researcher, search for how the particular country that you
  have chosen has tackled the issue. The date provided by the country’s name denotes
  when that country enacted legislation specifically dealing with corporate killing.
  In particular, see if you can find what politicians, journalists and other commentators in
  your chosen jurisdiction have said about the need for reform of the law regulating
  deaths in the corporate context. Then compare your findings with what you have learnt
  about the UK’s approach to corporate manslaughter.

   France, 2006                                                   Romania, 2006
   Finland, 1995                                                  Austria, 2006
   South Africa, 1995                                             Italy, 2001
   Australia (some states), 1995 Netherlands, 1991

  Comment
  Your comments will vary greatly depending on the country that you have chosen. From
  your research you should be able to determine whether a similar approach has been
  taken in the country of your choice to that in the UK. So for instance research on

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4 Corporate responsibility in an international context

  Australia should have found details of the Australian Commonwealth Criminal Code
  1995 and the Bracks Bill 2001. Portugal, Spain, Norway, Finland and Denmark all have
  incorporated criminal punishments for corporations in new/revised penal codes.

4.2 The impact of globalisation on corporate
accountability for industrial incidents
Criminal accountability for corporate deaths invariably applies only to deaths which occur
within that jurisdiction and does not have extra-territorial effect. So, for instance, MNEs
operating abroad cannot be held accountable under the 2007 Act for deaths that occur
outside the UK. This highlights the fact that, as globalisation progresses, the effectiveness
of individual jurisdictional safeguards for corporate malpractice are in danger of being
diluted, as commercial activity can be moved to a jurisdiction with less onerous legal
regulation.
In recent years more countries have recognised domestic civil liability for corporate torts
committed abroad. This enables litigation to take place in the ‘home’ jurisdiction of the
business organisation even where the act or omission occurred in a country in the
developing world. For instance, in the case of Trafigura the alleged victims of the dumping
of toxic waste in Sierra Leone brought a class action against the UK-registered oil
company in the High Court in the UK.

4.3 The application of international law and human
rights principles to industrial incidents
Ideally, robust national policy and law should secure adequate protection for individuals
and this includes ensuring adequate health and safety protections for those affected by
commercial activity. In practice, however, national policy does not help in those countries
where the enforcement of regulatory controls is weak or non-existent.
It may be that international law and the development of a body of human rights principles
have the capacity to provide more protection from corporate abuses than national laws.
Slapper (2011) observed that positing human rights norms offers a way to universally
recognise minimum standards of corporate behaviour cross-jurisdictionally, i.e. across
organisations in all jurisdictions, in spite of the barriers that geography ordinarily
represents. Human rights norms are not restricted in their geographical application, unlike
criminal laws, which are invariably specific to the jurisdiction enacting them. They can be
characterised as ‘triggers’ or mechanisms for state intervention where the state itself
shows little or no impetus to act. In this way, human rights norms can set high standards
and expectations of states in their attempts to enact domestic legislation which complies
with their human rights obligations.
The right to life is a fundamental human right included in all human rights charters and
would appear to offer victims of corporate failings some hope of a remedy in this context.
For instance, the International Covenant on Civil and Political Rights (ICCPR) requires
that the right to life is protected by law, as does Article 2 of the European Convention on
Human Rights (ECHR). The work of the ILO in setting international labour standards also

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