Gross Negligence Manslaughter - Assignment Example

Gross Negligence Manslaughter Number Department Gross negligence manslaughter Gross negligence manslaughter refers to an unintentional manslaughter where the perpetrator’s actions are within the law. The felony may be inferred where the accused has caused a loss of life but neither anticipated death nor serious bodily injury and thus does not qualify the guilty mind test for murder. Proving gross negligence manslaughter does not necessarily mean an illegal act has been done: rather, the crime can suffice where the accused engages in a legitimate business in such manner that painting the actions in criminal light is seen as missing the point. As such, the crime can also be committed by a failure to do what was expected of the accused. The elements The elements of gross negligence manslaughter were created in R v Adomako [1994] 3 WLR 288. The previous elements of the crime in R v Seymour [1983] following legal reforms had grown out-dated. In respect of the spirit in Adomako it is imperative for the accuser to verify that the accused: a) owed the victim of injury a duty of care; b) violated the duty; c) the violation of duty resulted in the death; d) the conduct of the accused was so erroneous in all respects that it constitutes the crime in a jury’s understanding ((Jackson, 2013; Tariq, 2014). The tests were reaffirmed in A-G ref no 2 of 1999 [2000] 2 Cr App R 207, where the court was deliberated on a fatal train crash that claimed the lives of seven people. The fiasco led to the charging of the driver and some of the crew with gross negligence manslaughter. The trial court ruled that the driver’s conviction required the precondition of men rea (guilty mind) for gross negligence manslaughter (Jackson, 2013). In addition, the court clarified that in cases where the accused is an organization, practical conviction only ends with human persons and not the lifeless mindless entity. The decision led to reference of part of the case to the Court of Appeal for clarification, where it was held that a defendant can be effectively convicted of gross negligence manslaughter even where there is inadequate proof as to the defendants mental status as to when the crime was being committed. In Rowley v DPP [2003] EWHC 693, however, the court appeared to expand the application of the Adomako test in its ruling in which case, it eliminated the importance of the duty of care as a precondition to determining guilt or lack of it. The judges noted that in some cases, proving criminal guilt, especially those involving medical negligence and reckless driving may allow others deserving convictions to lose compelling evidence. In specific, the issue of whether a dealer in substances has sufficient proximity to infer a duty of care which he or she owes to the users seems to be irrational despite the fact that courts have been appearing to eliminate the likelihoods (Jackson, 2013). Question # 2 Companies can be charged with gross negligence manslaughter just as it applies to corporate agents in their individual capacity. The fourth element of Adomako requiring proof that the conduct of the accused party be established to have fallen far below the reasonable standards in order to warrant a conviction for gross negligence manslaughter is far too high for many prosecutors to meet when pursuing criminal corporate bodies (Jackson, 2013). The element attracts serious challenges when applied in perceived corporate failures because in most cases serious company failures may still be considered as sufficiently not guilty even where they result in death. In particular, proving that a corporate conduct demonstrated such disdain for the holiness of human life and others’ safety as to constitute a criminal violation of duty is arguably hard to prove. This is especially true considering that securing company manslaughter convictions hinges on how best the prosecution can prove that the gross negligence manslaughter was committed by the company in its individual capacity, which in most cases in a tall order. This requirement continues to prove intractable for prosecutors pursuing cases of corporate killing. Judges and juries have maintained that corporate liability could be proved only and solely with citation of the provable mind-set of the managers or other party with sufficient directing minds within the organization (Tariq, 2014). The principle of identification leaves corporate bodies unable to face the criminal charges because they lack a mind of their own from which liability can be deduced. It is this lack of mind handicap that left the ancient legal system without option but to exclude corporate bodies from potential liability in criminal cases. Corporate immunity from criminal charges featured prominently in Bolton (Engineering) Co Ltd v Graham & Sons [1957] IQB 159, where the court likened a corporate body to human body (Jackson, 2013). The court observed that some individuals within the organization are merely servants with just their bare hands to undertake their respective tasks, while others are directors and executive managers whose actions or inactions reflect the mind and determination of the organization, and thus, control its actions. By virtue of their activities and decisions in the running of the company, the court observed that company managers represent its state of mind and must be considered as such under the law. In respect of this analogy and the accompanying ruling which proved that corporate liability beyond the acts and omissions of its directors is immensely difficult, it has been particularly hard to prove that a company can run itself down the criminal path without active human players directing it that way. In fact, the principle overly favoured larger business organizations, which have circumvented liability for gross negligence manslaughter arising from the conduct of managers who due to corporate limitations have had to face the criminal charges in their individual capacity (Tariq, 2014). The principle that a corporate body lacks identity replayed in R v P & O European Ferries (Dover) Ltd [1991] 93 Cr. App. R. 72, where the court convicted the ‘human minds’ of the company and left the business entity to go scot-free. All members of the management team from members of the company board down to the supervisors holding junior positions were found liable by virtue of shared benefits and responsibilities in management. The ruling in R v P & O European Ferries (Dover) Ltd also showed that the rate of convictions and discharging of gross negligence manslaughter depend significantly on the size of the company: smaller and medium companies feeling have seen invariably higher levels of successful conviction than larger ones (Jackson, 2013). The trend can be attributed to the closer proximity of the directors of smaller companies to the day-to-day running of the company. By contrast, carrying the burden of evidence as to the liability of larger companies for gross negligence manslaughter is usually insurmountable, considering that the company management structures are so complex and immensely institutionalized, any wrong move is generally attributable to the corporation itself rather than to the individual managers. Question # 3 The Corporate Manslaughter and Corporate Homicide Act 2007 (c. 19) (CMCHA) is an important English statutory law that has since its enactment sought to enforce corporate manslaughter upon business organizations for the first time in the country’s history (Jackson, 2013). The Act introduced a new felony of corporate manslaughter or corporate homicide in the country to bridge the gap in common law regarding the issue. Key Provisions of the Act The Act seeks to enforce corporate killing within the United Kingdom as an indictable felony that is executed if the manner in which a company’s behavior or management practice: causes the death of an individual under (s1 (a); and constitutes a gross violation of a pertinent duty of care which the company owed to the victim (s1 (b)). The Act further elaborates that how these operations are handled or created by the top management of the company supports a violation and action. Under s9(2), the Act obligates the (regional) Prosecution authorities to seek the consent of the Director of Public Prosecutions on the issue of charging entities other than natural individuals with being supportive or passive as to the offence (Jackson, 2013). As such, the Act annuls the common law conditions for determining gross negligence manslaughter. In addition, the Act, under Section 2 outlines all the liable organizations which include: corporate bodies, partnerships, labor unions, any employer unions, law enforcement agencies and some public departments. In order to enforce compliance among these organizations, the Act under Section 8(1) imposes the applicable duty of care on them. A relevant duty is stated as part of numerous fiduciaries which the organization in question owes the victim, provided it is legal in the opinion of the court. Different issues involving government policy decisions such as policing, the armed forces, children protection programs and emergency interventions are, however, exempted from liability (Tariq, 2014). Section 2(1) (d) of the Act provides certain duties of care which the organizations owe to individuals in police custody. However, due to the complexity of such obligations, enforcement of this provision stood suspended. Regardless, section 8 concerns gross breach of the duty. Under the provision, an organization’s violation of a duty of care will amount to gross breach where the alleged behavior violates that obligation and falls substantially below reasonable corporate practice (Tariq, 2014). This is, however, left to juries to decide. The judicial mechanisms must factor whether the proofs can demonstrate that the corporate body failed to adhere to any health and safety laws that apply to the claimed breach, and if that is the case: determine the degree of seriousness of that misconduct; and the degree of risk of loss of life it posed. The law also obligates juries to explore positive corporate practices which may have abetted the crime. Penalties The Act imposes heavy penalties upon guilty corporate bodies in the form of remedies for the violations. Alternatively, by requiring guilty companies to make public their failures or be liable for unlimited fine up to the tune of £200,000, the Act really was intended to impose fines which are seen as commensurate with guilty corporate bodies. Generally, the Act is different from the common law principle of gross negligence manslaughter in the sense that it imposes upon the juries the obligation to broadly factor the management or organization of the activities that led to the killing in establishing corporate liability. In particular, organizational systems, including any procedures and supportive policies for regulating safety and health and how these factors played out in practice would point to corporate guilt for manslaughter. Unlike the common law doctrine which regards criminal activities as the acts of members of the senior management teams within organizations in question, the Act considers the actions or omissions of such individuals as forming the core of the organization’s guilty mind. Reference Book Jackson, E., 2013. Medical Law: Text, Cases, and Materials. Oxford: Oxford University Press. Journal Tariq, M.S., 2014. “A 2013 look at the Corporate Killer.” The Company Lawyer, 35(1), p.17 Case Law A-G ref no 2 of 1999 [2000] 2 Cr App R 207, Bolton (Engineering) Co Ltd v Graham & Sons [1957] IQB 159 R v P & O European Ferries (Dover) Ltd [1991] 93 Cr. App. R. 72 Rowley v DPP [2003] EWHC 693 Read More