Corporate Criminal Liability in the 1990s
| Author | Michael Jefferson |
| Published date | 01 February 2000 |
| DOI | 10.1177/002201830006400108 |
| Date | 01 February 2000 |
| Subject Matter | Article |
Corporate
Criminal Liability
in
the
1990s
Michael Jefferson*
At
the
beginning of
the
1990s
the
English
law
of corporate liability
seemed
settled.' There
were
two
bases of attribution. First, a
company
was vicariously liable to
the
same
extent
as a
natural
person.'
Secondly,
a
company
was directly responsible
when
the
criminal act or omission
had
been
performed by a
person
identified
with
the
company.'
The first
head
of liability was relatively uncontroversial. The second type con-
tained
several difficulties:
which
officers
were
the
'directing
mind
and
will'4 of
the
company
for only their misdeeds
were
the
misdeeds of
the
company?" Was it truly
the
law
that
a
company
was liable
when
one
of
its directing minds
and
wills acted to defraud it?6In respect of
both
forms
of
attribution
there
was a nagging
doubt
whether
corporate liability
could be justified at all, a
doubt
expressed in
the
principal
student
text
across several editions thus:
'the
necessity for corporate criminal liability
awaits
demonstration."
It
cannot
be said
that
English courts
have
tack-
led these issues systematically,
but
what
was previously settled has
become
unsettled
as a result of decisions
both
at
the
appellate level
and
in
the
Privy Council. Exploration of
the
uncertainties in
the
law
may
in
time lead to
the
resolution of some of
the
thorny
issues of corporate
criminal liability.
Marginalisation8
One
of
the
central concerns in
the
1990s in
the
law of corporate liability
has
been
the
difficulty in successfully prosecuting companies for
'normal'
or conventional crimes. In particular, nonfeasances
and
mis-
feasances in
the
health
and
safety field are subject to its
own
set of
regulatory laws.
What
could, for example, be
manslaughter
is hived off
*University of Sheffield.
I Cf Hill (1991) 3Current Issuesin Criminal Justice 122: 'I
detect
no
signs of
advance
or
reform'.
2 See, e.g., Mousell BrosLtd vLondon and North Western Railway Co [19171 2 KB
836.
3 See in
particular
Tesco
Supermarkets Ltd vNattrass [1971] AC 153.
4Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 at 713, a civil
House
of Lords authority,
which
also laid
down
the
rule
for criminal law. Lord
Haldane
spoke
of
'the
very
ego
and
centre'
of
the
company.
5 Cf
the
'brain'
and
'hands'
distinction
put
forward
by
Denning
Uin HL Bolton
(Engineering) Co Ltd v TJ Graham &Sons Ltd [1957] I QB 157 at 172 (a civil case).
6 Moore vI Bresler Ltd [1944] 2 All ER 515, a decision
which
would
be
overturned
by
the
draft Criminal Code 1989. cl 39(b).
7 J.C.
Smith
and
Hogan, Criminal Law.
8th
edn
(Butterworths,
London, 1996) 190.
8 See Tombs
(1995)4
Social and Legal Studies 343;
Punch
(1995) 3European Journal of
Criminal Policy Research 92;
and
Clarkson (1996) 59 Modern
Law
Review 557.
106
Corporate
CriminalLiability in the
19905
into
that
specific
area
of regulation. Several
consequences
ensue:
first,
the
regulatory
agency
responsible
may
adopt
policies
which
aim
to
ensure
compliance
with
the
rules,
rather
than
to
penalise
breach
of
those
rules:" secondly,
the
agency
may
have
few inspectors.!" thirdly,
even
if
the
company
is
prosecuted,
the
sanction
may
be
mlnimal.!'
and,
fourthly,
whereas
an
allegation of
manslaughter
against
a
company
will
be
reported,
a
conviction
for
pollution
or
some
other
non-traditional
offence
may
well
not
be.'?
An
example
of
marginalisation
in
recent
years
occurred
in
respect of
the
deaths
of
workers
engaged
in
the
building
of
the
Channel
1\mnel.
Six
men
were
killed
but
only
one
prosecution
for
manslaughter
was
brought.
The
other
deaths
resulted
in
charges
under
the
Health
and
Safety
at
Work
Act 1974.
There
is a
strong
argument
that
bringing
health
and
safety proceedings
merely
devalues
killings at
work,
whereas
man-
slaughter,
being
a
conventional
crime, does
not.
Some
of
these
criticisms
are
being
addressed."
but
progress is slow
and
does
not
deal
with
all
four
criticisms of
marginalisation
made
above.
What
can
be said,
however,
is
that
these
difficulties
have
been
recog-
nised
and
that
there
are
moves
afoot
to tackle
them.
The
Protocol for
Liaison
agreed
between
the
Health
and
Safety Executive,
the
Associa-
tion
of Chief Police Officers
and
the
Crown
Prosecution
Service, Work-
Related Deaths, is
aimed
at securing
the
full investigation of
workplace
killings
and
the
careful
consideration
of
the
decision
whether
to prose-
cute.!"
One
aim
is to
make
certain
that
the
three
authorities
cooperate
when
dealing
with
those
workplace
deaths
which
do
not
at first sight
appear
to be
homicldes."
In
order
to facilitate
the
smooth
operation
of
the
new
system
local liaison officers
are
to be
appointed,
and
a
national
liaison
committee
is to be established.
9 In
the
UK
the
classic illustration is
the
HSE. For a critique see
Gunningham
(1987)
9 Law and
Policy
69. See also Slapper (1993) 2
Social
and
Legal
Studies
423. Note also
the
concept of 'regulatory capture',
whereby
the
sector being regulated has its
policies adapted by
the
agency. The sinking of The
Marchioness
in 1989, in which 5I
people lost
their
lives, was followed by
the
prosecution of
the
master
of
the
dredger,
TheBow
Belle,
for failing to keep a
proper
lookout. No
'ordinary'
or
conventional
charge was brought. Cf also
the
non-prosecution
of
the
police service after the
Hillsborough disaster in 1989, in which 96 died. The police
are
not
a
company
but
it
is arguable
that
similar legal principles should apply to such organisations.
10 The Cullen Report
into
the
Piper Alpha disaster in
which
167 lost their lives is
among
the
reports
which
deal
with
the
lack of inspectors.
It
was reported in [1992]
NU
1312
that
less
than
20
per
cent of major non-fatal injuries at
work
are
investigated.
11 This is a criticism which
had
been
made
on
numerous
occasions
both
before
and
during
the
1990s. See e.g. C. Wells [1988] Crim LR795. In R v British
Steel
pic[19951 1
WLR 1356,
the
fine was £100, a derisory
amount.
This case is discussed below.
12 Wells (1995) 6Criminal Law
Forum
45 (www.camlaw.rutger
...
crimlawforum/
wells/html):
'Only
one
of
the
1,016 workplace deaths in
the
past
two
years was
subject to a police,
rather
than
HSE, investigation. The criminality of
the
risk-taking
employer
...
is
thus
side-channelled, diverted into the calmer waters of
heath
and
safety investigation,
with
low prosecution rates, little stigma
and
derisory penalties.'
(footnote omitted).
13 HSE/ACPO/CPS,
Work-Related
Deaths:
A
Protocol
for
Liaison
(1998). See Ecclestone
(1998) 148
NU
910;
and
Bergman (1999) (March)
Legal
Action8.
14 At 2.
15 At 3.
107
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