Can a corporation commit manslaughter? Recent developments in the United Kingdom and the United States.

• Author: Harbour, Laurel J.

A CORPORATION is a legal fiction. It is an entity created by law that exists separately from its incorporators and that functions through people who act as its agents. Like people, corporations have rights and obligations in their own name. They own property, pay taxes, can sue and be sued. But can they commit crimes? If they can, how should the law penalize them for their criminal acts? The courts on both sides of the Atlantic have long struggled and still struggle with these questions because the necessary elements of any crime--an act or omission and a guilty mind--focus on the actions and mental state of a human being and not of a corporate entity. Recognizing the judicial struggle, the legislature is stepping in. In March, 2005, the United Kingdom's Home Office published a draft Corporate Manslaughter Bill (1) to introduce a statutory offense of corporate manslaughter for England and Wales. In December, 2005, an Indiana state lawmaker announced that he will seek passage of legislation in the 2006 session of the Indiana General Assembly that will penalize corporations for safety violations in the workplace that lead to bodily injuries and fatalities. (2) The working title of this proposed Bill is the Corporate Manslaughter Act. Some commentators indicate that Indiana is only a starting point. (3) The primary goal of both the Corporate Manslaughter Bill (U.K.) and the Corporate Manslaughter Act (U.S.) is to make it easier to prosecute and convict corporations of manslaughter. If these proposals become law, they will create new challenges for corporate defense counsel everywhere.

1. Corporate Manslaughter In England

   1. The History of Corporate Criminal Liability in England

      In England, historically, corporations were considered incapable of committing any crimes since, as Pope Innocent IV noted in 1250, corporations have no souls. (4) This keen observation was later expanded upon by Edward, first Baron Turlow, who stated that corporations have "no soul to be damned and no body to be kicked. " (5) Consequently, early English courts held that criminal liability cannot be applied to corporations. (6) In 1701, Chief Justice Hold issued an opinion that read in its entirety: "A corporation is not indictable, but the particular members of it are." (7)

      By the mid-nineteenth century, the English jurisprudence gradually accepted the concept of corporate criminal liability in limited circumstances. The courts began to hold corporations liable for various crimes, such as criminal contempt of court, (8) criminal malfeasance, (9) and criminal nuisance, (10) but not manslaughter. From the late 1800s and through the early 1900s, English courts relied on the theory of vicarious liability to criminally prosecute corporations for their employees' acts committed within the scope of employment. (11) Notably, these crimes were in the nature of strict liability and employee's criminal conduct was imputed to the corporation-employer. (12) During this time, the courts continued to hold that corporations were incapable of committing homicide because they lacked the requisite intent. (13) This changed in 1956 when the court in H.L. Bolton Co. v. T.J. Graham & Sons introduced the "directing mind" theory (or the "identification principle") that provided prosecutors with the means to convict corporations for intent-based crimes. Exploring the rationale behind the "directing mind" theory, Lord Denning stated:

      A company may in many ways be likened to a human body. They have a brain and a nerve [center] which controls what they do. They also have hands which hold the tools and act in accordance with directions from the [center]. 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 they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such ... (14) English corporations have since been convicted of various intent-based crimes, such as conspiracy to defraud, (15) aiding and abetting regulatory offenses, (16) and contempt of court. (17)

      Calls for a statutory crime of corporate manslaughter came in the wake of widely publicized tragedies that involved corporate misconduct and resulted in deaths of many people, such as the Harald of Free Enterprise Ferry disaster in 1987 and the Southall rail disaster in 1997. Prosecutions failed in both of these cases. Since 1992, thirty-four corporations have been prosecuted for work-related deaths, but only six small companies were convicted. (18) The first English corporation to ever be found guilty of manslaughter was O.L.L., Ltd. in 1994. (19)

      The reason for the prosecutorial failures in the work-related deaths' cases was that under the "directing mind" theory two elements had to be shown beyond reasonable doubt: (1) that a person within the company was personally guilty of manslaughter through his or her own gross negligence; and (2) that that person was the "directing mind" of the company. Obviously, it is a much easier task for the prosecutors to find a single person who meets both of these criteria within a small organization than within a large corporate entity. The public's perception that corporate defendants were "getting away with murder" prompted the government to seek ways to reform this area of the law.

   2. The Modern State of Corporate Manslaughter in England

      In 1996, the Law Commission introduced a draft Involuntary Homicide Bill. The express purpose of this Bill was to simplify the task of prosecuting corporations. (20) However, despite being endorsed by the Deputy Prime Minister and the Home Secretary, this Bill has not passed into law. In 2000, the Home Office issued a Proposal entitled "Reforming the Law on Involuntary Manslaughter" calling for reform of the offense of corporate manslaughter. (21) In March, 2005, the Home Office published the much-anticipated draft Corporate Manslaughter Bill (22) ("Bill") that set forth the offense of statutory corporate manslaughter applicable to corporations in England and Wales only. (23)

      Under the proposed new offense, corporate entities will not be liable "on the basis of any immediate, operational negligence causing death" or for the "unpredictable, maverick acts" of their employees. (24) Rather, the focus is on a corporation's "working practices." (25) The offense will apply to both corporations and government departments. (26) Under the Bill, an entity is "guilty of the offence of corporate manslaughter if the way in which any of the organization's activities are managed or organized by its senior managers (a) causes a person's death, and (b) amounts to a gross breach of a relevant duty of care owed by the organization of the deceased." (27) A "senior manager" is a person who "plays a significant role" in making decisions about how the organization's activities are managed or organized. (28)

      Under the current draft, the offense will apply where the corporate entity owes a duty of care in either of the three capacities: (1) as...