Criminal Law: Should There Be A Crime Of Corporate Manslaughter?

2580 words - 10 pages

INTRODUCTION.The evolution of corporate criminal liability perhaps reaches its apex in the prosecution of manslaughter. The criminal law, although designed to determine the responsibility of natural persons is remodelled when the employer is not a person. Presumably this predicates the dilemma, which legislators confront in determining the limits of the criminal sanction and whether or not a corporation can be ascribed guilt in manslaughter.Current State of the Law.The current law in Australia is such that, although corporations are deemed legal persons, they cannot be convicted of an offence which is only punishable by imprisonment e.g. murder. In Australia, the acknowledgement of corporate responsibility for workplace killing is significantly inhibited by the Tesco principle, which holds that a corporation can only be charged with an offence where the persons who made the error of judgement represent the "guiding mind or will " of the corporation. In light of this and the reluctance of some jurisdictions to statutorily override it, the law at present for the purposes of manslaughter, only goes so far as to recognise categories of corporate defendants, such as senior executives and directors falling within the operation of the rule .NSW Manslaughter Provisions & OHS.NSW maintains a proactive approach to maintaining safety standards through the combined operation of civil remedies, industry specific statutes and the Occupational Health & Safety Act 2000 . This approach ameliorates the reactionary effect of provisions responding only to death or injury. In light of this the Act imposes performance-based obligations on employers to maintain safety management systems and posits a duty on the employer to consult employees on workplace safety . Since NSW has no industrial manslaughter offence, the common law of manslaughter is the zenith of reactionary measures.The Criminal Code Act 1995.The Commonwealth code provides greater tangibility to corporate criminal liability, in specifically outlining that corporations can be convicted of crimes punishable only by imprisonment, and holding that corporations with a poor "corporate culture" may be just as culpable as senior officers and managers falling under Tesco.The code defines "corporate culture" to include attitude, policy, rules, courses of conduct etc and establishes it as basis for the imputation of guilt . Sarre postulates that as a result of this basis, corporations merely showing documentary evidence of good practice, will not easily be allowed to escape scrutiny, where an underlying lack of compliance can be elucidated . In such a situation failure to comply with maintaining safety systems constitutes the deficient culture, for which the common law otherwise steeped in 'identification' would fail to impose criminal liability . Indeed advocates of the code argue that it allows a truly corporate mens rea to be uncovered in criminogenic corporate cultures, and thus need not be reliant on the...

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