|
|
|
|
|
The
Offence of Manslaughter
Manslaughter is a crime that can be committed by any
individual or company in relation to a work-related
death. No organisation - other than a company - can
be prosecuted for this offence
Click here
for issues relating to the investigation of manslaughter
Click here for
the record of manslaughter prosecutions and details
of recent Manslaughter cases.
Below is a summary of the current law. The Government
is proposing legal reforms in this area. Click
here to see discussion of these reforms.
Manslaughter by Individuals
This is a 'common law' offence. That is to say the offence
has been developed by judges and is not contained in
a legislative statute.
The 1995 House of Lords case of Adomako
sets out the current test to prove the offence. An individual
commits manslaughter when he or she causes a death through
gross negligence.
'... 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 a 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 could be judged criminal''Subjective'
or 'objective' test
One question that has come before the courts is whether
this test requires
that the defendant was aware of the risks of injury
or death created by his conduct (that is to say whether
it is a 'subjective' test in which the state of mind
of the defendant is important) or whether the defendant
can be found guilty even if the defendant was unaware
of the risks created by his conduct, along as the conduct
itself can 'objectively' be considered to be gross neglect
Two legal decisions have dealt with this question -
and have held that a person can be found guilty of manslaughter
even when s/he is unaware of the risks that were created
by his or her conduct. However, any evidence of awareness
may assist the jury in coming to a conclusion that the
defendant was grossly negligent
- Attorney General's Reference
No 2/1999 (February 2000) resulted from the
unsuccessful prosecution of Great Western Railways
over the Southall Rail Crash in September 1997.
One of the questions that the Attorney General asked
the Court of Appeal to clarify was: "can a
defendant be properly convicted of manslaughter
by gross negligence in the absence of evidence as
to that defendant's state of mind?"
"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 … may well
be the more readily found to be grossly negligent
to a criminal degree."
To download the judgement click here.
- R v DPP ex parte Tim
Jones, (March 2000) involved a successful Judicial
Review of a decision by the Crown Prosecution Service
not to prosecute the managing director of Euromin
Ltd.
The Key paragraph is:
"If the accused
is subjectively reckless, then that may be taken
into account by the jury as a strong factor demonstrating
that his negligence was criminal, but negligence
will still be criminal in the absence of any recklessness
if on an objective basis the defendant demonstrated
what, for instance, Lord Mackay quoted the Court
of Appeal in Adomako as describing as: "failing
to advert to a serious risk going mere inadvertence
in respect of an obvious and important manner
in which the defendant's duty demanded he should
address …"
To download this decision click
here.
Manslaughter by a company
The test of whether a "company" is guilty
of manslaughter or not is intrinsically linked to whether
or not a director or senior manager of the company -
a 'controlling mind and will' of the company - is guilty
of manslaughter. If the director/manager is found guilty,
the company is guilty; if the director/manager is found
innocent, the company is innocent.
This is known as the 'identification' doctrine. The
company is identified through its 'controlling officers'
As Justice Taylor stated in a 1990 ruling concerning
the trial of P&O European Ferries for the manslaughter
of those who died in the Zeebrugge Disaster:
"where a corporation,
through the controlling mind of one of its agents,
does an act which fulfils the pre-requisites for the
crime of manslaughter, it is properly indictable for
the crime of manslaughter."
In the trial of Great Western Trains
over the Southall Train disaster, the Crown tried to
argue that the this doctrine no longer applied and that
it was possible to consider the conduct of the 'company'
as a whole rather than the conduct of an individual
'controlling mind'. The trial judge however ruled that:
" There is, I
accept, some attraction in the fact that gross negligence
manslaughter, involving as it does an objective test
rather than mens rea in the strict sense of the expression,
is in some ways closer to statutory offences of the
kind in the cases relied on by Mr Lissack than it
is to the ordinary run of criminal offences. But I
do not think this is a good reason for no longer having
to look for a directing mind in the company to identify
where the fault occurred. In my judgement it is still
necessary to look for such a directing mind and identify
whose gross negligence it is that fixes the company
with criminal responsibility."
Accordingly, I conclude
that the doctrine of identification which is both
clear, certain and established is the relevant doctrine
by which a corporation may be fixed with liability
for manslaughter by gross negligence."
As a result of this ruling, the
Attorney General asked the Court of Appeal for a clarification
of the law on this point. In Attorney General's Reference
No 2/1999, the court held that the Trial judge was correct
and that "
"… the identification
principle remains the only basis in common law for
corporate liability for gross negligence manslaughter."
To Download this decision click
here.
|
|
|
|
|
