To what extent has the law on corporate health
This paper considers the extent to which the jurisprudence on corporate wellness and safety offenses has developed to protect society instead than companies. In analyzing the development of and proposals on corporate condemnable liability, the author argues that there has been a displacement towards the protection of society at the disbursal of free trade, a tendency that looks set to go on given recent developments stemming from the ‘Enron Scandal’ and proposed reforms to the jurisprudence on corporate manslaughter. The author inquiries whether the enlargement of corporate liability utilizing the condemnable jurisprudence can genuinely be said to be in the involvements of society.
The development of corporate condemnable liability
The development of wellness and safety jurisprudence which stemmed from the Industrial Revolution has been said to hold been “haphazard” in its efforts to protect workers from hapless working conditions: the inclination was to develop the jurisprudence in relation to a peculiar industry or trade [ 1 ] . Corporate condemnable liability has its beginning in instances associating to the railroads: inR v Birmingham & A ; Gloucester Railway Co( 1842 ) 3 QB 223andR v Great North of England Railway Company( 1846 ) 9 QB 315it was held that a company could be found guilty of a offense, but in the really limited fortunes of breach of an absolute statutory responsibility.
In the 1900s, the jurisprudence made farther stairss to protect society from the errors of concerns by and large. We see the development of the civil jurisprudence to protect the consumer [ 2 ] , for illustration. When it came to a set uping a company’s liability under the condemnable jurisprudence, nevertheless, the Courts faced a quandary: if a company was unable to move or believe as a individual in the legal sense, how couldactus reusandwork forces rea,the indispensable elements underpinning condemnable liability, be established?
The mechanism by which the Courts sought to widen corporate condemnable liability was to impute the Acts of the Apostless and ideas of people within the company to the company itself. By the mid 1940s and against the background of the ‘Welfare State’ we see the debut of what is normally known as the ‘identification’ trial [ 3 ] . Hallet J in his judgement inDPP v Kent & A ; Sussex Contractors[ 1944 ] 1 All ER 119said:
“Although the directors… of a company are its agents, they are something more. A company is incapable of moving or speech production or even of believing except in so far as its officers have acted, spoken or thought … the officersarethe company for this purpose.”
A 2nd trial was proposed by Denning LJ inBolton ( Engineering ) Co. Ltd v Graham & A ; Sons[ 1957 ] 1 QB 159. This has come to be known as the ‘controlling officer’ trial. Denning LJ made the differentiation between the ordinary worker and employee and those who controlled the company ; he said:
“ ( Others are ) managers and directors who represent the directing head and the will of the company, and command what it does. The province of head of these directors is the province of head of the company and is treated as such…in the condemnable jurisprudence, in instances where the jurisprudence requires a guilty head as a status of a condemnable offense, the guilty head of the managers or the directors will render the company itself guilty.”[ 4 ]
Using the designation trial to widen corporate liability under the condemnable jurisprudence has proven to be debatable, nevertheless. There is a balance to be achieved between restricting a company’s exposure to legal hazard – the ground for organizing a company – and that of protecting society: a specific illustration of cut downing defendants’ exposure to legal hazard by and large is to be found in the construct of conducive carelessness [ 5 ] by which a Claimant’s amendss are reduced in proportion to the extent they have contributed to their ain hurt.
In recent times, ‘corporate crimes’ have received much media attending and public force per unit area on the Government to convey companies and other administrations ‘to account’ has intensified. There is a sensed demand for corporate condemnable liability to be farther extended. For illustration:
- Accounting and Auditing
The radioactive dust of the ‘Enron Scandal’ has resulted in the publication of a Government White Paper “Modernising Company Law” [ 6 ] which aimsinter aliaat fastening duty for fiscal coverage and auditing. One proposal contained therein is that company forces should be under a duty to supply accurate information to an hearer upon petition [ 7 ] : failure to make so ( or wittingly or recklessly doing a statement which is misdirecting, false or delusory ) may ensue in imprisonment.
In this and other respects, the jurisprudence seeks to increase the load on company forces, so far as, one could reason, to move as a deterrence to going a company officer – possibly even taking to an increased involuntariness to unwrap information that might go forth them unfastened to prosecution? This, it can be argued, does nil to protect society from hapless company patterns.
- Corporate Manslaughter
The job of set uping a company’s liability under the condemnable jurisprudence, as discussed above, is evidenced most publically in the legion unsuccessful prosecutions against companies and other administrations in the aftermath of major catastrophes. In visible radiation of this, the Government published a bill of exchange measure in March 2005 which seeks to present a “new footing of liability ….addressed through a new trial that focuses on direction failure at a senior degree within the organisation” [ 8 ] . By traveling off from the designation trial, there will be a greater focal point on the direction construction of the company in inquiry.
A job with the current jurisprudence is that the larger, more complex the company, the more hard it becomes to set up condemnable liability [ 9 ] . This once more stems from the demand to nail a ‘controlling officer’ . This is to the hurt of smaller companies where the direction construction is more simplistic. If jurisprudence is to promote the concern upon which society is dependent, this can non be right.
The extent to which the corporate manslaughter statute law will use to other administrations remains ill-defined [ 10 ] . This state of affairs is absurd: if the function of the condemnable jurisprudenceisto protect society from wellness and safety offenses, is it right to put companies at greater exposure to condemnable liability than some other administrations? Arguably, this neither promotes concern and trade ( since the legal duties on companies are greater, to the extent possibly that merchandising becomes uneconomically feasible [ 11 ] ) ; nor does this supply the victims of offenses with consistent legal protection.
One must non bury that a company is in concern to do money for its ‘stakeholders’ : the ‘bottom line’ is all of import. In many cases, accidents at work happen as a consequence of cost film editing: conformity with wellness and safety statute law is in itself perceived to be dearly-won ( although arguably it minimises exposure to legal hazard ) . Interestingly, within the proposed list of statutory standards [ 12 ] we see that the scenario where “the administration sought to gain from a serious failure to follow with wellness and safety statute law and guidance” could take to condemnable liability. By concentrating on the failure of senior direction, it is argued it will be more hard for senior direction to hedge condemnable liability through deputation. This remains to be seen.
This paper has argued that corporate condemnable liability continues to switch off from promoting companies to merchandise farther towards the alleged protection of society. Whether, and the extent to which, companies should be reprehensively apt has been criticised given the protection afforded to society ( e.g. employees, visitants ) though the civil jurisprudence [ 13 ] . Even if the proposals on corporate manslaughter are adopted, the jurisprudence continues to see the company as an abstract being, with direction constructions, instead than as aggregation of persons. If the ultimate consequence of widening corporate condemnable liability with respects to wellness and safety is to deter companies to merchandise, so one inquiries whether this is genuinely to society’s benefit.
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