Criminal Law: Should there be a crime of corporate manslaughter?

Essay by nash1984College, UndergraduateA+, October 2005

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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...