The Law On Involuntary Manslaughter Needs Reform — страница 3

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what has been discussed above, it is evident that there are problems with prosecuting a company where there has been management failure in the prevention of causing death or injury. The first difficulty is in the identification of an individual who is seen as being the ?embodiment of the company? and more importantly, ? who is culpable?[17]. Secondly it may not be possible to prove the necessary mens rea of the individual (or individuals) in the particular case which needs to be attributed to the company before the company can be held to be criminally liable. The notion of management failure forms the focus of the proposals submitted by the Law Commission and accepted by the Government. The offence of corporate manslaughter (renamed corporate killing) would therefore be committed

if there was a ?management failure? falling far below what can reasonably be expected of the corporation in the circumstances? which in turn lead to a persons death[18]. The most important concept here is that of the notion of management failure, which refers to the acts of people in the company, failing to ensure the existence of structures (or policies) that would prevent death or injury occurring to employees or members of the public. This offence does not therefore require reference to the common law notion of mens rea, in its attempt to deal with the unique nature of corporate killing, by focusing instead on the manner in which the company is organized and the policies implemented (or not). There is therefore no longer the need to identify particular individuals and their

actions as has been and is still the present situation. These arguments that a corporate bodies should be held liable are largely based upon ?public policy?[19] as stated at the beginning of the essay.?An immediate problem with the proposals as they stand is that in some respects similar arguments to those that are used at present could be raised in defense of a company. Which policies or management failures form part of that particular company? This is especially be true of large multi-national companies or corporations consisting of smaller companies on the ground. It is however widely acknowledged that the proposals are broadly to be welcomed despite problems with detail as they could help to clarify a problematic area of law.There is also the argument that the creation of a

separate crime is not always in the best public interest as opposed to creating a ?different ground of liability? and the need to consider corporate liability more widely in general.?[20]?Ashworth argues that focusing too much attention on the punishment for past wrongdoing is not constructive for society in general as, there is a greater need for prevention[21].What is evident is that liability does need to be imposed where there has been some disaster brought about through blatant failure on the part of a company to ensure the safety of the public and its employees. The current law as has been demonstrated is far from clear or uniform in its approach to dealing with the question of corporate manslaughter. There does however need to be a degree of caution however that criminal

liability is not imposed simply as a result of extraordinary events or a public desire for vengeance, as the maxim ?hard cases make bad law? elucidates. BibliographyAshworth, A. 1999. Principles of Criminal Law. 3rd Ed. OUPClarkson, CMV. 1998. Corporate Culpability. Journal of Current Legal Issues. London: Blackstone Press Ltd.Department of Transport (1987), The Merchant Shipping Act 1894, mv Herald of Free Enterprise, Report of Court No 8074 (Sheen Report). London: HMSO.Reforming the Law on Involuntary Manslaughter: The Governments Proposals. (2000). The Home Office. London: HMSO.Smith and Hogan. 1999. Criminal Law. 9th Ed. London. Butterworths.Smith and Hogan. 1999. Criminal Law, Cases and Materials. 7th Ed. London. Butterworths. The Law Commission No 237. 1996. Legislating the

Criminal Code, Involuntary Manslaughter. London. HMSO. [1] Reforming the Law on Involuntary Manslaughter: The Governments Proposals. (2000). The Home Office. London: HMSO. [2] Smith and Hogan (1999, p. 282) [3] R v P&O European Ferries (Dover) Ltd. [1990] 93 Cr App Rep 72, Central Criminal Court [4] Legislating the Criminal Code: Involuntary Manslaughter Report No. 237 (1996) [5] [1995] 3 All ER 918 [6] ibid.(Lord Hoffman at p. 507) [7] See above. [8] Department of Transport (1987), The Merchant Shipping Act 1894, mv Herald of Free Enterprise, Report of Court No 8074 (Sheen Report). London: HMSO. [9] Ibid. [10] R v P&O European Ferries (Dover) Ltd [1990] 93 Cr App Rep 72, Central Criminal Court [11] R v HM Coroner for East Kent, ex parte Spooner [1989] 88 Cr App R 10, p.6