The Law On Involuntary Manslaughter Needs Reform — страница 2

fault for failure to give clear safety instructions to its employees. Thus in cases where there is clear evidence of corporate failure, and a ?disease of sloppiness?[9] infecting the entire work force, the doctrine of identification prevents any prosecution from taking place in criminal law, as a single individual (or individuals) will still need to be shown as having the necessary acts and knowledge that can be attributed to the company. It is important to note however that despite the failure of the P&O case, as expalined above, that Turner J did rule that the indictment for manslaughter could stand and that future cases should be decided on a case by case basis.[10] Furthermore Bingham LJ did rule that he saw, ?no reason in principle why such a charge (corporate

manslaughter) should not be established?[11].More recently following the Southall Rail Crash (September 1997) in which seven people died, the Court of Appeal held that the traditional view regarding the use of the principal of identification remains the means of bringing about prosecutions for corporate manslaughter[12]. During the trial of Great Western Trains the trail judge Scott Baker J held that:?? It is a condition precedent to a conviction for manslaughter by gross negligence for a guilty mind to be proved; and 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.?[13]As a result, even though a ?serious fault of senior management? had been identified, it was not possible for the prosecution to

prove their case, as no single person could be found of sufficient seniority (within the identity doctrine) who was responsible for the ordering of trains to run where safety was lacking. The Attorney-General sought therefore to have the current position clarified with two questions being referred to the Court of Appeal, based upon the trial judges ruling:i. Can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant?s state of mind? and; ii. 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?The Appeal Court agreed with the first question, which meant that the second answer had to be a

negative in that the prerequisite guilt of state of mind had to be established, with it then only becoming attributed to the company. The Court held that there had to be an ?identifiable individuals conduct, characterisable as gross criminal negligence? which then could be attributed to the company. It is however confusing since the Court also followed Adomako [14]with the ?objective? gross negligence test, (with no subjective guilt of mind needing to be proved on behalf of the defendant) mentioned in the obiter. It would seem that in order for a persons conduct to be seen as being gross criminal negligence, one needs to look at the facts that the individual knew or perhaps was not aware of. If this is the case then one is looking at the state of mind of the particular individual

and to what degree their own knowledge (or lack of) was of any importance. It would seem that as far as corporate manslaughter is concerned the crime is not one of strict liability, as there has to be a ?directing mind? with the necessary mens rea, dependant on individual culpability.It is an area in which there is some confusion, with the trial judge and the Court of Appeal coming to different conclusions on what the necessary conditions would be to establish individual culpability. What seems to be at issue is the use of the terms describing the state of mind and mens rea of the defendant. The Court of Appeal therefore has confirmed the doctrine of identification and restated the traditional view that:?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.?[15]Following on the Meridian decision it seemed that for time prerequisite of a ?directing mind? may have begun too shift significantly, however this would now not seem to be the case. It seems that Meridian has been distinguished from other cases in so far that it related to the interpretation of a statutory provision, yet the Court has rejected that it indicated any move away from the traditional position. In fact the Court argued that the decision relied on the identification principle and that while the person identified as the ?directing mind? was not as senior as expected, he was nevertheless at management level[16]. From