I welcome the opportunity to debate this important issue and whilst I don’t oppose the Corporate Manslaughter Bill – I believe it requires amendments before being passed into law.
Currently the law provides for the offence of gross negligence manslaughter (common law offence).
Prosecutions for such offences are infrequent as such events are themselves uncommon. Perhaps the most famous of these rare events dates back to 1998. The accused- a funfair owner was convicted of gross negligence manslaughter after a woman died when her chair became detached from a 20-year-old chairoplane ride at the accused’s facility.
The law also already provides an offence of endangerment under section 13 of the Non-Fatal Offences against the Person Act which provides that: a person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another.
In addition – the Safety Health and Welfare at Work Act 2005 provides statutory standards and practices to be adhered to by employers and employees. It includes offences for breaches of statutory safety standards.
The Corporate Manslaughter Bill has 13 sections and is similar in many respects to a draft Bill included in the Law Reform Commission’s Report on Corporate Killing
The Bill provides for the creation of two criminal offences directed at those culpable for fatalities occurring in the corporate environment. The first is Corporate Manslaughter – the corporate offence which is directed at the culpable enterprise.
The second is Grossly Negligent Management Causing Death, the individual offence which is directed and a high managerial agent within a company.
Whilst the corporate offence cannot attract a custodial penalty – the individual offence has penalties of a fine or up to 12 years’ imprisonment. The corporate offence is punishable by a fine. The convicted corporate entity may also be ordered to undertake specific actions on foot of orders handed down by the Court (non-custodial sanctions).
Section 1: is an interpretation section which provides definitions of “court”, “high managerial agent” and “undertaking”. This Bill has a much broader definition of “high managerial agent” to that contained in the Law Reform Commission Report and it could be interpreted to include anyone who has a decision making role in a company.
Section 2: sets out the offence of “corporate manslaughter” which is the death of a person caused by the gross negligence of an undertaking where:
• The undertaking owed the deceased person a duty of care,
• It breached the duty of care by failing to take all reasonable measures to anticipate and prevent risks to life.
• The breach of the duty of care involved a serious risk or serious personal harm and
• The breach caused the death.
The section also sets out the factors about the undertaking that have to be considered in deciding whether the undertaking owes a duty of care.
Section 3 : sets out the offence of “grossly negligent management causing death”. This offence is directed at individuals who are termed “high managerial agents” and in a business that has been convicted of corporate manslaughter. For such a person to be found guilty of the offence it would have to be proven that s/he should have known that there was a serious risk of harm or death and failed to make reasonable efforts to remove that risk given what would have been considered reasonable in the circumstances. The failure must have contributed to the corporate manslaughter offence.
This section also sets out factors for consideration when determining whether a high managerial agent should be liable for the offence, such as the level of responsibility and powers of the person in question or whether s/he passed on information on the risk to those who could have eliminated the risk of serious harm or death. The Bill provides that a high managerial agent would still be open to prosecution even if the corporate entity had been dissolved.
Most are valid points however there are Some Key Issues for Debate:
Firstly regarding the Offence of corporate manslaughter against an individual:
This Bill provides for an offence by a “high managerial agent”, which is defined as “a director, manager or other similar officer of the undertaking, or a person who purports to act in any such a capacity, whether or not that person has a contract of employment with the undertaking.” In effect the Bill will apply to any person who makes any management decision even if they are not employed by the business in question. No matter how the definition of “A High Managerial Agent” is framed, the fundamental problem remains – the Bill is trying to define an offence by reference to the position of an individual in a hierarchy, whereas it is a general principle throughout our criminal law that the law applies equally to every citizen, depending only on the individual’s culpability.
Secondly :Application of the offence of corporate manslaughter to unincorporated entities.
The Bill would apply to all “undertakings” in the State. The Bill defines an “undertaking” as meaning “a person being a body corporate or an unincorporated body of persons engaged in the production, supply or distribution of goods or, the provision of a service including those which are Government Departments and Statutory Bodies whether carried on for profit or not, as well as faith based organisations and groups.”
The fact that the Bill would apply the offence of corporate manslaughter to unincorporated bodies may well create a legal minefield. It would potentially apply to every employee and every volunteer in almost any kind of organisation. It would be difficult to conceive of any activity that the offence of corporate manslaughter would not apply to and potentially any person in the State could find themselves exposed to the risk of prosecution even if they have no corporate role whatsoever.
Thirdly there are no exempt activities in the Bill.
The corporate manslaughter offence would apply to all activities, including our ambulance services, fire services, Defence Forces, Garda Síochána, the lifeboat service and air-sea rescue. These are activities which are essential public services and which, of their nature, involve a necessary and fundamental level of risk. If we were to legislate in this way, then our ambulance services, fire services, Garda emergency response units etc would all be vulnerable to prosecution for corporate manslaughter in any circumstance when a fatality occurs during the operation of their services.
Taking all that into account the fact remains, Ireland needs to progress its legal system to make it a positive, appealing and safe place to work. A number of other countries have already taken the necessary steps to improve their legal system with regards to corporate manslaughter:
Britain passed the Corporate Manslaughter and Corporate Homicide Act 2007, a landmark in British law. The Act came into force on the 6th April 2008, allowing companies and organisations to be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.
Canada has also taken steps to improve its legal system in this regard, passing the Bill C-45 in March 2004. C-45 established new legal duties for workplace health and safety, and imposed serious penalties for violations that result in injuries or death. Moreover, the C-45 provided new rules for attributing criminal liability to organizations, including corporations, their representatives and those who direct the work of others.