Attorney-General's Reference 2/99
under Section 36 of the Criminal Justice Act 1972

In the Court of Appeal Criminal Division

Tuesday, 15th February 2000

B e f o r e 

Lord Justice Rose (The Vice President)

and

Mr Justice Potts

and

Mr Justice Curtis

The Vice President:
The court's opinion is sought in relation to two questions referred by the Attorney General under s36 of the Criminal Justice Act 1972: 

1. 	can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant's state of mind? 

2. 	can a non-human defendant be convicted of the crime of manslaughter by gross negligence in the absence of evidence establishing the guilt of an identified human individual for the same crime?

The questions arise from a ruling given by Mr Justice Scott Baker at the Central Criminal Court on 30th June 1999. At the outset of the trial of the defendant train operating company, on an indictment containing seven counts of manslaughter, he ruled that it is a condition precedent to a conviction for manslaughter by gross negligence for a guilty mind to be proved and that where a non-human defendant is prosecuted it may only be convicted via the guilt of a human being with whom it may be identified. It is submitted for the Attorney General that the judge was wrong in both respects. 

The prosecution arose from the disastrous collision which occurred at Southall at 1.15 pm on 19th September 1997. The 10.32 high speed train (HST) from Swansea to London Paddington, with approximately 180 passengers and staff on board, operated by the defendant and travelling on the up main line, collided with a freight train crossing from the down relief line to Southall Yard. Seven passengers died. One hundred and fifty one people were injured. Millions of pounds worth of damage was done.

The HST had a driver of considerable experience but no second competent person with him. The power car was fitted with two safety devices independent of the driver. Each was designed to prevent a signal being passed at danger. One system was the Automatic Warning System (AWS) which had been in common use in the United Kingdom since the 1950s. It had been deliberately switched off. The other system was Automatic Train Protection (ATP) which the defendant was piloting for Railtrack and was the only United Kingdom operator using it. It had been switched off. The driver knew that neither AWS nor ATP were operating. 

The movement of the train was correctly signalled ie the signals on the up main line affecting the HST prior to the junction were set successively at green, double yellow, single yellow and red. The HST driver remembered passing through the green signal but next recalled seeing the red signal. He braked as hard as he could, but, as he was travelling at an average of 116 mph over the 3600 metres immediately preceding the accident, it was too late. 

The case for the prosecution was that the cause of the collision was, first, the driver's failure to see or heed the double yellow and single yellow signals warning of impending red and, secondly, the defendant's manner of operating the HST. The case against the defendant was that it owed a duty to take reasonable care for the safety of its passengers, of which it was in grossly negligent breach. Three signals were passed because the AWS and ATP were switched off and there was only one man in the cab. The defendant should not have permitted such a train to operate in such circumstances. Following the judge's ruling, the defendant pleaded guilty to count 8 on the indictment, which alleged failure to conduct an undertaking, namely the provision of transport by rail to members of the public, in such a way as to ensure that they were not exposed to risks to their health and safety, contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work Act 1974. The defendant was fined £1.5 million for what the judge described as "a serious fault of senior management". No employee of the defendant, apart from the driver, was prosecuted. 

For the Attorney General, Mr Lissack QC submitted, in relation to question 1, that involuntary manslaughter can be committed by an unlawful act, gross negligence or subjective recklessness (see Law Commission Paper No 237 paragraphs 2.3, 2.8, and 2.26). The present case rests on gross negligence manslaughter. He submits that, since R v Adomako 1995 1 AC 171, a defendant can be found guilty of such manslaughter in the absence of evidence as to his state of mind. "The ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him , involving as it must have done a risk of death to the patient, was such that it should be judged criminal." ( per Lord Mackay of Clashfern LC in Adomako at 187 B-D). Only gross breaches will give rise to criminal liability.

As a result of Adomako , Mr Lissack submitted, gross negligence manslaughter can be proved without the need to enquire into the state of the defendant's mind. This proposition is supported by a passage at pages 90 and 91 in the 7th Edition of Smith and Hogan's Criminal Law, which culminates in contrasting crimes requiring mens rea with crimes of negligence. The Adomako test was derived from Bateman 19 Cr App R8, which was an objective test (see Law Commission Consultation Paper 135 paragraph 3.32).

For the defendant Mr Caplan QC, in relation to question 1, submitted that there is a difference between whether mens rea must be proved and whether it may be relevant. He accepted that it need not be proved for gross negligence. But, he said, it may be relevant because the Adomako test requires the jury, when deciding if the breach is criminal, to consider it in all the circumstances. Furthermore, in Adomako at 187H Lord Mackay went on to say that it was perfectly appropriate to use the word "reckless" in cases of involuntary manslaughter, in its ordinary connotation as in Stone 1977 QB 354. At 363F in Stone Lord Lane CJ said that, where a defendant had undertaken a duty of care for the health and welfare of an infirm person the prosecution had to prove "a reckless disregard of danger to the health and welfare. Mere indifference is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health or actually to have foreseen the risk but to have determined nevertheless to run it".

On this question, we accept the submissions of both Mr Lissack and Mr Caplan. They lead to the conclusion that question 1 must be answered "Yes". Although there may be cases where the defendant's state of mind is relevant to the jury's consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a pre-requisite to a conviction for manslaughter by gross negligence. The Adomako test is objective, but a defendant who is reckless as defined in Stone may well be the more readily found to be grossly negligent to a criminal degree. 

As to question 2, Mr Lissack accepted that policy considerations arise. Large companies should be as susceptible to prosecution for manslaughter as one-man companies. Where the ingredients of a common law offence are identical to those of a statutory offence there is no justification for drawing a distinction as to liability between the two and the public interest requires the more emphatic denunciation of a company inherent in a conviction for manslaughter. He submitted that the ingredients of the offence of gross negligence manslaughter are the same in relation to a body corporate as to a human being, namely grossly negligent breach of a duty to a deceased causative of his death. It is, he submitted, unnecessary and inappropriate to enquire whether there is an employee in the company who is guilty of the offence of manslaughter who can be properly be said to have been acting as the embodiment of the company. The criminal law of negligence follows the civil law of negligence as applied to corporations: the only difference is that, to be criminal, the negligence must be gross. Of the three theories of corporate criminal liability, namely vicarious liability, identification and personal liability, it is personal liability which should here apply. In the present case, it would have been open to the jury to convict if they were satisfied that the deaths occurred by reason of a gross breach by the defendant of its personal duty to have a safe system of train operation in place. The identification theory, attributing to the company the mind and will of senior directors and managers, was developed in order to avoid injustice: it would bring the law into disrepute if every act and state of mind of an individual employee was attributed to a company which was entirely blameless ( see per Lord Reid in Tesco Supermarkets Ltd v Nattrass 1972 AC 153 at 169 and per Estey J of the Supreme Court of Canada in Canadian Dredge Co v The Queen) 19 DLR 314 at 342). Its origins lay in the speech of Viscount Haldane LC in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd 1915 AC 705 at 713, and it was developed by the judgment of Denning LJ in Bolton Engineering v T J Graham & Sons 1957 1QB 159 at 172 and Tesco Supermarkets Ltd v Nattrass in which, at 170E, Lord Reid said: 

"A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company".

Before turning to Mr Lissack's submission in relation to personal liability it is convenient first to refer to the speech of Lord Hoffmann in Meridian Global Funds Management v Securities Commission 1995 2AC 500 on which Mr Lissack relied as the lynch pin of this part of his argument. It was a case in which the chief investment officer and senior portfolio manager of an investment management company, with the company's authority but unknown to the board of directors and managing director, used funds managed by the company to acquire shares, but failed to comply with a statutory obligation to give notice of the acquisition to the Securities Commission. The trial judge held that the knowledge of the officer and manager should be attributed to the company and the Court of Appeal of New Zealand upheld the decision on the basis that the officer was the directing mind and will of the company. The Privy Council dismissed an appeal. In a passage at 506C Lord Hoffmann, giving the judgment of the Privy Council, said that the company's primary rules of attribution were generally found in its constitution or implied by company law. But, in an exceptional case, where the application of those principles would defeat the intended application of a particular provision to companies, it was necessary to devise a special rule of attribution. At 507B Lord Hoffmann said:

"For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person "himself", as opposed to his servants or agents. This is generally true of the rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself. How is such a rule to be applied to a company? One possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. Another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution ie if the act giving rise to liability was specifically authorised by a resolution of the board or an unanimous agreement of the shareholders. But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy".

Lord Hoffmann then referred to Tesco Supermarkets Ltd v Nattrass and In re Supply of Ready Mixed Concrete (No 2) 1995 1AC 456, Viscount Haldane's speech in Lennards Co and Denning LJ's judgment in Bolton v Graham. Having at 511A referred to the concept of directing mind and will, he went on to say: 

"It will often be the most appropriate description of the person designated by the relevant attribution rule, but it might be better to acknowledge that not every such rule has to be forced into the same formula. Once it is appreciated that the question is one of construction rather than metaphysics the answer in this case seems to their Lordships to be ....... the policy of s20 of the Securities Amendment Act 1988 is to compel, in fast-moving markets, the immediate disclosure of the identity of persons who become substantial security holders in public issuers........What rule should be implied as to the person whose knowledge for this purpose is to count as the knowledge of the company? Surely the person who, with the authority of the company, acquired the relevant interest. Otherwise the policy of the Act would be defeated........The company knows that it has become a substantial security holder when that is known to the person who had authority to do the deal. It is then obliged to give notice". Lord Hoffmann went onto comment that it was not necessary in that case to inquire whether the chief investment officer could be described as the "directing mind and will" of the company. At 511H he said "It is a question of construction in each case as to whether the particular rule requires that the knowledge that an act has been done, or the state of mind in which it was done, should be attributed to the company". 

Mr Lissack's submission that personal liability on the part of the company is capable of arising in the present case was based on a number of authorities in addition to Meridian. In R v British Steel Plc 1995 1 WLR 1356 the defendant was prosecuted, as was the present defendant, for a breach of sections 3(1) and 33(1)(a) of the Health and Safety at Work Act 1974. A worker was killed because of the collapse of a steel platform during a re-positioning operation which a competent supervisor would have recognised was inherently dangerous. The defence was that the workmen had disobeyed instructions and, even if the supervisor was at fault, the company at the level of its directing mind had taken reasonable care. An appeal against conviction was dismissed by the Court of Appeal Criminal Division. The judgment was given by Steyn LJ who said this at 1362H 

"Counsel for British Steel Plc concedes that it is not easy to fit the idea of corporate criminal liability only for acts of the "directing mind" of the company into the language of s3(1). We would go further. If it be accepted that Parliament considered it necessary for the protection of public health and safety to impose, subject to the defence of reasonable practicability, absolute criminal ability, it would drive a juggernaut through the legislative scheme if corporate employers could avoid criminal liability where the potentially harmful event is committed by someone who is not the directing mind of the company,.... that would emasculate the legislation". 

In a commentary on this decision in 1995 Criminal Law Review 655 Professor Sir John Smith said in relation to the "directing mind" argument 

"where a statutory duty to do something is imposed upon a particular person (here an employer) and he does not do it, he commits the actus reus of an offence. It may be that he has failed to fulfil his duty because his employee or agent has failed to carry out his duties properly, but this is not a case for vicarious liability. If the employer is held liable, it is because he personally has failed to do what the law requires him to do and he is personally not vicariously liable. There is no need to find someone - in the case of a company the brains and not merely the hands-for whose act the person with the duty be held liable. The duty on the company in this case was to ensure, ie to make certain, that persons are not exposed to risk. They did not make it certain. It does not matter how; they were in breach of their statutory duty and, in the absence of any requirement for mens rea, that is the end of the matter".

Mr Lissack also relied on In re-supply of Ready Mixed Concrete (No 2) where the House of Lords held companies liable for a breach of the restrictive trade practices legislation where their local managers had entered into price fixing and market sharing agreements in defiance of clear instructions from the board of directors and without their knowledge. Lord Templeman said, at 465B, that to permit a company to escape liability by forbidding its employees to do the acts in question would allow it 

"to enjoy the benefit of restriction outlawed by Parliament and the benefit of arrangements prohibited by the courts, provided that the restrictions were accepted and implemented and the arrangements negotiated by one or more employees who had been forbidden to do so by some superior employee, identified in argument as a member of the higher management of the company, or by one or more of the directors of the company identified in argument as the guiding will of the company".

In R v Associated Octel 1996 1WLR 1543, in a prosecution under s3 of the Health and Safety at Work Act 1974 the defendant's conviction was upheld by the House of Lords. Lord Hoffmann, in a speech with which the other members of the House agreed, said, at 1547B, that s3 imposed a duty towards persons not in employment on the employer himself defined by the conduct of his undertaking. In R v Gateway Foodmarkets 1997 2 Cr App R 40 the Court of Appeal Criminal Division reached a similar conclusion in relation to s2(1) of the same Act in relation to employees.

Mr Lissack submitted that, in accordance with the speech of Lord Hoffmann in Meridian, the choice of the appropriate theory depends on the ingredients of the offence itself; and the requirements of both retribution and deterrence point to corporate liability where death is caused through the company's gross negligence. He relied on a passage in Steyn LJ's judgment in the British Steel case at 1364A where there is reference to the promotion of "a culture of guarding against the risks to health and safety by virtue of hazardous industrial operations". 

Mr Lissack advanced two subsidiary submissions. First, if, contrary to his primary submission, a corporation cannot be convicted unless an employee embodying the company can be identified as guilty of manslaughter, the presence of such an employee can be inferred: he relied on a passage in the speech of Lord Hoffmann in Meridian at 510H which seems to us to afford no support whatever for this submission. We reject it. Secondly, he suggested that aggregation has a role to play i.e. where a series of venial management failures are aggregated and cumulatively amount to gross negligence, a company may be convicted. There is a tentatively expressed passage in Smith and Hogan 9th Edition at p186, based on an analogy with civil negligence, which supports this suggestion. But there is no supporting and clear contrary judicial authority - see per Bingham LJ in R v HM Coroner ex.p Spooner 88 Cr App R 10 at 16: "A case against a personal defendant cannot be fortified by evidence against another defendant. The case against a corporation can only be made by evidence properly addressed to showing guilt on the part of the corporation as such". The Law Commission 237 at paragraph 7.33 are against introducing the concept of aggregation. We reject the suggestion that aggregation has any proper role to play.

For the defendant, Mr Caplan submitted, in relation to question 2, that Adomako was not concerned with corporate liability. It is necessarily implicit in the Law Commission's recommendation, in L.C. 237, that Parliament should enact a new offence of corporate killing, that the doctrine of identification still continues to apply to gross negligence manslaughter since Adomako. Tesco v Nattrass is still authoritative (see Seaboard Offshore v Secretary of State for Transport 1994 1WLR 541) and it is impossible to find a company guilty unless its alter ego is identified. None of the authorities since Tesco v Nattrass relied on by Mr Lissack supports the demise of the doctrine of identification: all are concerned with statutory construction of different substantive offences and the appropriate rule of attribution was decided having regard to the legislative intent, namely whether Parliament intended companies to be liable. There is a sound reason for a special rule of attribution in relation to statutory offences rather than common law offences, namely there is, subject to a defence of reasonable practicability, an absolute duty imposed by the statutes. The authorities on statutory offences do not bear on the common law principle in relation to manslaughter. Lord Hoffmann's speech in Meridian is a re-statement not an abandonment of existing principles: see, for example,, Lord Diplock in Tesco v Nattrass at 200H: "There may be criminal statutes which upon their true construction ascribe to a corporation criminal responsibility for the acts of servants and agents who would be excluded by the test that I have stated" (viz those exercising the powers of the company under its articles of association). The Law Commission's proposals were made after Meridian and the British Steel case. Identification is necessary in relation to the actus reus i.e. whose acts or omissions are to be attributed to the company and Adomako's objective test in relation to gross negligence in no way affects this. Furthermore, the civil negligence rule of liability for the acts of servants or agents has no place in the criminal law - which is why the identification principle was developed. That principle is still the rule of attribution in criminal law whether or not mens rea needs to be proved.

Finally Mr Caplan relied on the speech of Lord Lowry in C v DPP 1996 1AC 1 and invited this court to reject the prosecution's argument for extending corporate liability for manslaughter. At page 28C Lord Lowry said, with regard to the propriety of judicial law making "(1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. (4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty". Each of these considerations, submitted Mr Caplan, is pertinent in the present case.

There is, as it seems to us, no sound basis for suggesting that, by their recent decisions, the courts have started a process of moving from identification to personal liability as a basis for corporate liability for manslaughter. In Adomako the House of Lords were, as it seems to us, seeking to escape from the unnecessarily complex accretions in relation to recklessness arising from Lawrence 1982 AC 510 and Caldwell 1982 AC 341. To do so, they simplified the ingredients of gross negligence manslaughter by re-stating them in line with Bateman. But corporate liability was not mentioned anywhere in the submissions of counsel or their Lordship's speeches. In any event, the identification principle is in our judgment just as relevant to the actus reus as to mens rea. In Tesco v Nattrass at 173D Lord Reid said "The judge must direct the jury that if they find certain facts proved then, as a matter of law, they must find that the criminal act of the officer, servant or agent, including his state of mind, intention, knowledge or belief is the act of the Company." In R v HM Coroner ex.p Spooner Bingham LJ at 16 said "For a company to be criminally liable for manslaughter...it is required that the mens rea and the actus reus of manslaughter should be established...against those who were to be identified as the embodiment of the company itself." In R v P & O European Ferries 93 CAR 72 Turner J, in his classic analysis of the relevant principles, said at 83 "Where a corporation through the controlling mind of one of its agents, does an act which fulfils the pre-requiste of the crime of manslaughter, it is properly indictable for the crime of manslaughter." In our judgment, unless an identified individual's conduct, characterisable as gross criminal negligence, can be attributed to the company the company is not, in the present state of the common law, liable for manslaughter. Civil negligence rules eg as enunciated in Wilsons & Clyde Coal Co v English 1938 AC 57 are not apt to confer criminal liability on a company.

None of the authorities relied on by Mr Lissack as pointing to personal liability for manslaughter by a company supports that contention. In each, the decision was dependent on the purposive construction that the particular statute imposed, subject to a defence of reasonable practicability, liability on a company for conducting its undertaking in a manner exposing employees or the public to health and safety risk. In each case there was an identified employee whose conduct was held to be that of the company. In each case it was held that the concept of directing mind and will had no application when construing the statute. But it was not suggested or implied that the concept of identification is dead or moribund in relation to common law offences. Indeed, if that were so, it might have been expected that Lord Hoffmann, in Associated Octel, would have referred to the ill health of the doctrine in the light of his own speech , less than a year before, in Meridian. He made no such reference, nor was Meridian cited in Associated Octel. It therefore seems safe to conclude that Lord Hoffmann (and, similarly, the members of the Court of Appeal Criminal Division in British Steel and in Gateway Food Market) did not think that the common law principles as to the need for identification have changed. Indeed, Lord Hoffmann's speech in Meridian, in fashioning an additional special rule of attribution geared to the purpose of the statute, proceeded on the basis that the primary "directing mind and will" rule still applies although it isnot determinative in all cases. In other words, he was not departing from the identification theory but re-affirming its existence. 

This approach is entirely consonant with the Law Commission's analysis of the present state of the law and the terms of their proposals for reform in their Report No 237 published in March 1996. In this report, both the House of Lords decision in Adomako and the Privy Council's decision in Meridian were discussed. In the light of their analysis, the Law Commission concluded (paragraph 6.27 and following and paragraph 7.5) that, in the present state of the law, a corporation's liability for manslaughter is based solely on the principle of identification and they drafted a Bill to confer liability based on management failure not involving the principle of identification (see clause 4 of the Draft Bill annexed to their Report). If Mr Lissack's submissions are correct there is no need for such a Bill and, as Scott Baker J put it, the Law Commission have missed the point. We agree with the judge that the Law Commission have not missed the point and Mr Lissack's submissions are not correct: the identification principle remains the only basis in common law for corporate liability for gross negligence manslaughter. 

We should add that, if we entertained doubt on the matter, being mindful of the observations of Lord Lowry in C v DPP at page 28C, we would not think it appropriate for this court to propel the law in the direction which Mr Lissack seeks. That, in our judgment, taking into account the policy considerations to which Mr Lissack referred, is a matter for Parliament, not the courts. For almost 4 years, the Law Commission's draft Bill has been to hand as a useful starting point for that purpose. 

It follows that, in our opinion, the answer to question 2 is "No"