3.1 Common law gross negligence manslaughter
Dating originally from the nineteenth century, this offence was crafted by the courts in a series of cases which were designed to identify individual liability for death in cases where the accused owed a duty of care for the victim. It was often used in cases involving professional misconduct such as serious medical failures.
Box 1 Gross negligence manslaughter
The test to be applied to determine whether a person has committed gross negligence manslaughter was articulated by Lord Woolf LCJ in R v Adomako  UKHL 6, who set out the five elements required:
- a duty of care owed by the defendant to the victim
- a breach of that duty
- a risk that the defendant’s conduct could cause death
- evidence that the breach of duty caused the victim’s death
- the defendant’s conduct fell so far below the standards of a reasonable person in that situation that they should be labelled grossly negligent and deserving of criminal punishment.
The fifth element of this test caused problems when applied to organisational failures. Jurors have to determine whether the defendant’s conduct fell ‘so far below’ the standards reasonably expected of an individual in the position of the defendant by judging whether that conduct showed ‘such disregard for the life and safety of others’ as to amount to a criminal breach of duty. This test is circular, as acknowledged by Lord Woolf in R v Adomako. In an attempt to clarify the matter in R v Misra & Srivastava  1 Cr App R 328, paragraph 58, the Court of Appeal agreed that the term ‘reprehensible’ would be apt to describe the nature of the conduct:
The essence of the matter which is supremely a jury question is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.
In practice, this proved to be a particularly difficult question to answer, in the case of the prosecution of both individuals and companies.
The second issue in securing corporate manslaughter convictions derives from the fact that a vital part of establishing guilt for gross negligence manslaughter is the need to attribute individual culpability for that death. This requirement proved an insurmountable difficulty for prosecutors in the case of corporate killing. The courts have insisted that corporate culpability could be ascertained only and exclusively with reference to the demonstrable mindset of a director or other controlling or directing mind (this is known as the doctrine of identification). Slapper has pointed to how this level of prosecutorial difficulty in affixing a criminally guilty corporate mind amounted to corporate impunity:
For the early part of its history, the company lay outside criminal law. ‘It had no soul to damn, and no body to kick,’ said 18th-century Lord Chancellor Lord Thurlow. The main difficulty in using the current [pre-2007 Act] law of manslaughter to proceed against corporations is that the rules evolved to reflect individuals. They are concerned with evaluating the ‘state of mind’ of the defendant, and companies do not have easily identifiable ‘minds’.
Lord Denning (in Bolton (Engineering) Co Ltd v Graham & Sons  IQB 159) attempted to address the issue by using an anthropomorphic metaphor when he described the company as like a human body:
some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such.
This analogy is attractive and memorable, but resulted in corporate liability being restricted to the acts of directors and a few high-level managers. It proved singularly difficult to establish that an individual in such a position had the requisite guilty mind for what is invariably a failing at a lower level in the workplace. In fact, it unduly favoured larger corporations, which escaped criminal liability for the acts of employees who managed the day-to-day activities of the corporations. It followed that a company with a diffuse and disordered system of management, hosting a poorly defined internal communications system, was less susceptible to a successful prosecution for a death caused by it than a well-structured, organised company in which clear lines of authority existed. This paradoxical gap in legal protection provided a perverse incentive for the system of management within a company not to adequately or clearly designate responsibility for health and safety concerns.
Read Reading 2: an extract from Slapper (2011), 'Violent corporate crime, corporate social responsibility and human rights'. In this extract Slapper considers the ways in which this obstacle to attributing liability created a difficulty in terms of bringing prosecutions under the common law against corporations alleged to have committed the corporate manslaughter offence.
Click here to access Reading 2
Slapper makes the case for looking at the reality of the situation. After all, since the individuals behind a corporation enjoy the benefits of collective identity, they should also be exposed to determinations of blameworthiness. This is an argument that has been influenced by other European perspectives, but it remained a strictly academic one until the shift in direction in the approach of the 2007 Act.
Gobert goes even further. He argues that a corporation’s failure to take precautions by way of implementing policies and training to avoid deaths derives from its corporate culture (Gobert, 1994a; Gobert, 1994b; also Geraghty, 2002, p. 327). As a consequence, he rejects the notion that corporations should be treated in the same way as natural persons (i.e. looking for a ‘guilty’ mind) and advocates that different legal concepts should underpin the liability of artificial persons. This view reflects the structures of modern corporations, which are more often decentralised and where crime is less to do with the misconduct by or incompetence of individuals and more to do with systems that fail to address problems of monitoring and controlling risk.