January 19 2009
Deaths in the workplace not only cause personal grief and suffering, but can also lead to unwanted adverse publicity and prosecutions for the companies involved. Health and Safety Authority statistics reveal that the number of work-related fatalities in 2007 was 67, compared with 51 in 2006.
It is increasingly recognized that corporations should be subject to criminal law in much the same way as individuals. However, charges for corporate manslaughter – whereby a company is convicted of involuntary manslaughter – are notoriously difficult to sustain. The common law position is that it is necessary to be able to identify the “directing mind of the company” (in one of its directors) who must be found to have acted in such a “grossly negligent” manner that he or she had the mens rea (state of mind) required to commit the offence of manslaughter. This position has led to practical difficulties in securing convictions for corporate manslaughter. While this identification of the company’s directing mind may be relatively simple within smaller companies, it is usually extremely difficult to identify an individual director or board member with the requisite degree of control over a large corporate entity. Thus, arguably, the identification doctrine is least likely to work where it is needed the most; the larger the company, the greater the number of deaths that are likely to occur should its operational systems fail or safety policies prove inadequate. In People (DPP) v Cullagh,(1) a small business was convicted of manslaughter by gross negligence but in this case a single director was clearly identifiable as being in control of the undertaking.
In October 2005 the Law Reform Commission published its Report on Corporate Killing. The report provided a considered analysis of the issues relating to corporate killing and proposed the creation of two new statutory offences: (i) a statutory offence of corporate manslaughter for corporate entities; and (ii) a secondary offence for corporate managers who play a role in the commission of the corporate offence. As yet there is no sign of either of these two proposed offences being introduced. However, the recent enactment in the United Kingdom of the Corporate Manslaughter and Corporate Homicide Act 2007 (which came into force in April 2008) may prompt this issue to be revisited in Ireland. In the absence of a statutory offence, greater reliance is placed on other legislative means, such as Section 80 of the Safety, Health and Welfare at Work Act 2005 and Section 13 of the Non-Fatal Offences against the Person Act 1997, to secure convictions in the case of workplace fatalities.
Section 80 of the 2005 act creates potential personal liability for directors and other managers of companies in circumstances where an offence has been committed by an undertaking.(2) The 2005 act expanded the class of people who may be held personally liable to that of directors, managers or other similar officers within the undertaking or persons who purport to act in such a capacity. The 2005 act also created a statutory presumption that those occupying certain positions are deemed to be responsible for the acts of the company. Under the 2005 act, a director, manager, other similar officer or person purporting to act in such a capacity can be deemed to be guilty of an offence under Section 80(2) where: (i) an offence has been committed by the undertaking; and (ii) the duties of the person concerned included making decisions that, to a significant extent, could have affected the management of the undertaking.
Prosecutions against individuals can also be taken under Section 13 of the 1997 act which has been – and will continue to be – used in the case of accidents at work. Section 13 provides that a prosecution may be taken against any person within an undertaking, occupying a managerial position or otherwise, where it can be shown that he or she has "engaged in conduct which intentionally or negligently created a substantial risk of death or serious harm to another”. Thus it can be seen that the potential application of the Section 13 of the 1997 act offence of ‘reckless endangerment’ is significantly broader than under Section 80 of the 2007 act.
There are no immediate indications that the draft Corporate Manslaughter Bill 2005, as proposed by the Law Reform Commission based on the recommendations contained in its Report on Corporate Killing, will begin its path down the route to becoming legislation in the immediate future. That being the case, and in light of the difficulties regarding the identification of the relevant ‘controlling minds’ of the company sufficient to take a common law prosecution for manslaughter, it is likely that prosecutions for workplace accidents and fatalities against individuals within a company will continue to be taken under Section 13 of the 1997 act.
For further information on this topic please contact Tristan Conway-Behan at Arthur Cox by telephone (+353 1 618 0000) or by fax (+353 1 618 0618) or by email (firstname.lastname@example.org).
(1) Court of Criminal Appeal, March 15 1999.
(2) ‘Undertaking’ is defined within the 2005 act as meaning “a person being an individual, a body corporate or an unincorporated body of persons engaged in the production, supply or distribution of goods or the provision of a service (whether carried on by him or her for profit or not)”.
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