Corporate manslaughter
Criminal culpability of a corporate entity, specifically of those controlling the direction of the company may be a taboo concept in this jurisdiction, but it is not a novel idea. We are surrounded by companies who flagrantly breach liabilities which should take them into the realm of criminal liability.
In our last article we explored the liability for state directors and the protection afforded to them by legislation, we can now consider criminal culpability. Interestingly, there is a current global movement calling for more accountability from management, particularly; criminally responsibility for the consequences of their decisions or lack thereof, which undermine prevailing health and safety regulations (among other things).
Corporate manslaughter is defined as unintended fatalities, traceable to negligence that befall workers in the course of carrying out their work or obligations, or members of the general public via the consumption of goods and services provided by the company. Last week, we determined that in T&T the Companies Act Chapter 81:01 is silent on ascribing criminal liability to a company, particularly its officers, other than for breach of fiduciary duty whereby imposing limited criminal liability for fraud and misbehaviour in office.
In going forward, T&T can model its new legislation after the UK’s Corporate Manslaughter and Corporate Homicide Act, 2007 (the Act) which provides for a company to be convicted of manslaughter for gross failure in the way activities were managed or organised resulting in the death of a person.
In order to secure a conviction, the prosecution must show that the failure was a consequence of senior management. It would have to be determined whether there was a gross breach of duty and consideration must be given as to whether the company failed to comply with any applicable health and safety legislation. If yes, the gravity of the failure and the risk of death it posed must be examined. It would also be considered whether the evidence shows that there were “attitudes, policies, systems or accepted practices within the organisation” that would likely have led to safety failures. So, the assessment of a company’s corporate culture can be legally relevant. By virtue of the Act, if a company is guilty of corporate manslaughter, the punishment is an unlimited financial penalty payable to the state as well as life imprisonment.
It is imperative to note that the conditions which made the UK ripe for the laying of legislative framework were an increasing and ignored number of deaths resulting from improper safety and health protocols. In the UK, Huntley Mount Engineering Limited were fined £150,000.00 for Corporate Manslaughter and a company director was jailed for 8 months.
Likewise, given T&T’s recent series of unfortunate events, namely the 1985 Berth 5 incident, the Petrotrin Oil Spill (2014), Gulf of Paria Oil Spill (2021) and Paria (2022) it is only prudent that legislation be primed going forward.
While the Paria incident is recent and we await the outcome, the
previous incidents resulted in no charges, little or no corporate accountability and it may appear very little change in the safety culture, save for the introduction of the OSH Act which to date the enforceability is questionable at best.
In the United States (US) currently, there is no legislation for corporate manslaughter that can be compared to the UK’s equivalent, but there is ongoing call for a ‘corporate death penalty’. In 2010, the Deepwater Horizon incident occurred and was recorded as the worst oil spill in the US.
Thereafter, British Petroleum (BP) had agreed to plead guilty to 14 criminal counts, including manslaughter, and did pay $4 billion in criminal fines. The manslaughter charges were dismissed by the federal prosecutors as they would have had to prove that the BP supervisors acted with a “wanton or reckless disregard for life.” David Uhlmann, a University of Michigan law professor in an interview stated that the fundamental problem was the attempt to hold individuals responsible when the responsibility was with the senior corporate management, as they had created a “corporate culture that promoted risk taking and did not place sufficient emphasis on safety and environmental protection.”
In 2020, a fire broke out in the Shasta County California which took the lives of 4 persons. It was determined that the fire was caused when Pacific Gas & Electric lines came into contact with a pine tree. In September 2021, charges for manslaughter and other felonies were brought against the company. It is evident that the US is moving in a direction whereby more accountability from companies is being demanded.
The US and UK are pursuing criminal culpability of companies in an attempt to prevent boards and/or senior management from taking risks or decisions which compromise the wellbeing of their employees. It is an attempt to alleviate the number of deaths due to safety and health breaches, as well as negative impacts on the environment. The recent Paria incident has brought attention to State Directors and their ability to make decisions which takes into account the safety of their employees. As such, T&T should consider its own version of a Corporate Manslaughter Act which can be harmonised with existing legislation, particularly the OSH Act and the Criminal Procedure (Corporations) Act.
• Pavitra Ramharack is Head of Chambers & Jesse Paul is an Associate at Pavitra Ramharack Attorneys at law.
In our last article we explored the liability for state directors and the protection afforded to them by legislation, we can now consider criminal culpability. Interestingly, there is a current global movement calling for more accountability from management, particularly; criminally responsibility for the consequences of their decisions or lack thereof, which undermine prevailing health and safety regulations (among other things).
Corporate manslaughter is defined as unintended fatalities, traceable to negligence that befall workers in the course of carrying out their work or obligations, or members of the general public via the consumption of goods and services provided by the company. Last week, we determined that in T&T the Companies Act Chapter 81:01 is silent on ascribing criminal liability to a company, particularly its officers, other than for breach of fiduciary duty whereby imposing limited criminal liability for fraud and misbehaviour in office.
In going forward, T&T can model its new legislation after the UK’s Corporate Manslaughter and Corporate Homicide Act, 2007 (the Act) which provides for a company to be convicted of manslaughter for gross failure in the way activities were managed or organised resulting in the death of a person.
In order to secure a conviction, the prosecution must show that the failure was a consequence of senior management. It would have to be determined whether there was a gross breach of duty and consideration must be given as to whether the company failed to comply with any applicable health and safety legislation. If yes, the gravity of the failure and the risk of death it posed must be examined. It would also be considered whether the evidence shows that there were “attitudes, policies, systems or accepted practices within the organisation” that would likely have led to safety failures. So, the assessment of a company’s corporate culture can be legally relevant. By virtue of the Act, if a company is guilty of corporate manslaughter, the punishment is an unlimited financial penalty payable to the state as well as life imprisonment.
It is imperative to note that the conditions which made the UK ripe for the laying of legislative framework were an increasing and ignored number of deaths resulting from improper safety and health protocols. In the UK, Huntley Mount Engineering Limited were fined £150,000.00 for Corporate Manslaughter and a company director was jailed for 8 months.
Likewise, given T&T’s recent series of unfortunate events, namely the 1985 Berth 5 incident, the Petrotrin Oil Spill (2014), Gulf of Paria Oil Spill (2021) and Paria (2022) it is only prudent that legislation be primed going forward.
While the Paria incident is recent and we await the outcome, the
previous incidents resulted in no charges, little or no corporate accountability and it may appear very little change in the safety culture, save for the introduction of the OSH Act which to date the enforceability is questionable at best.
In the United States (US) currently, there is no legislation for corporate manslaughter that can be compared to the UK’s equivalent, but there is ongoing call for a ‘corporate death penalty’. In 2010, the Deepwater Horizon incident occurred and was recorded as the worst oil spill in the US.
Thereafter, British Petroleum (BP) had agreed to plead guilty to 14 criminal counts, including manslaughter, and did pay $4 billion in criminal fines. The manslaughter charges were dismissed by the federal prosecutors as they would have had to prove that the BP supervisors acted with a “wanton or reckless disregard for life.” David Uhlmann, a University of Michigan law professor in an interview stated that the fundamental problem was the attempt to hold individuals responsible when the responsibility was with the senior corporate management, as they had created a “corporate culture that promoted risk taking and did not place sufficient emphasis on safety and environmental protection.”
In 2020, a fire broke out in the Shasta County California which took the lives of 4 persons. It was determined that the fire was caused when Pacific Gas & Electric lines came into contact with a pine tree. In September 2021, charges for manslaughter and other felonies were brought against the company. It is evident that the US is moving in a direction whereby more accountability from companies is being demanded.
The US and UK are pursuing criminal culpability of companies in an attempt to prevent boards and/or senior management from taking risks or decisions which compromise the wellbeing of their employees. It is an attempt to alleviate the number of deaths due to safety and health breaches, as well as negative impacts on the environment. The recent Paria incident has brought attention to State Directors and their ability to make decisions which takes into account the safety of their employees. As such, T&T should consider its own version of a Corporate Manslaughter Act which can be harmonised with existing legislation, particularly the OSH Act and the Criminal Procedure (Corporations) Act.
• Pavitra Ramharack is Head of Chambers & Jesse Paul is an Associate at Pavitra Ramharack Attorneys at law.
Pavitra Ramharack
Attorney at Law, Senior Committee Member of Assembly of Southern Lawyers