CORPORATE MANSLAUGHTER

Separate legal personality is an attribute of a company and it was established in the case of

Salomon v Salomon where it was stated that when a company is duly incorporated, it is an

independent person with rights and liabilities appropriate to itself. This was reiterated in the

Kenyan case of Post bank credit limited (in liquidation) v Nyamangu holdings limited where

it was further stated that “the separate corporate personality of a company as a legal person

in Salomon v Salomon is the greatest legal innovation in company law. And, although it is an

artificial person that does not possess the body of a natural person, a company is a juristic

person; a legal person in law. It exists only in contemplation of the law.” In criminal law, the

general principle is that a person is not criminally liable for an offence unless it is established

that he committed the offence, or omitted to act voluntarily and with a blameworthy mind.1 Therefore

the two principle elements in any criminal act are the actus reus element2 which is the

commission or omission of the criminal event and the mens rea element which is the condition

or state of mind required for the charged offence3.

Therefore, when the separate legal personality attribute of the company and the criminal law

elements of actus reus and mens rea elements are analyzed together with an aim of holding a

company criminally liable, a challenge arises. This is largely because the company is a legal

person that only exists in the contemplation of the law, it is a creature of the law. It can

therefore only perform acts that it has been legally empowered to do and at the same time, the

corporation neither having a physical body or a mind, it cannot physically perform the acts or the

actus reus elements and neither can it form the blameworthy state of mind required in most

1
Musyoka W, Criminal Law, LawAfrica Publishing (K), Nairobi, 2013, 27
2
Musyoka W, Criminal Law, LawAfrica Publishing (K), Nairobi, 2013, 27
3
Musyoka W, Criminal Law, LawAfrica Publishing (K), Nairobi, 2013, 47
forms of criminal acts. The question whether a company can be successfully convicted for

manslaughter therefore arises.

In English law, corporate manslaughter is a criminal offence where a corporation causes a

person’s death and it amounts to a gross breach of a relevant duty of care owed by the

organization to the deceased4. Corporate manslaughter arose as result of legal outcomes of

disasters that involved large companies and that led to massive loss of life. In most corporate

manslaughter incidences, the involved companies had been blamed and charged for the loss

of life but on their prosecution, they were not convicted.

The problem that arose initially was that the corporation had no body or mind and could

therefore not be imprisoned or sentenced to death which were then the punishments for

manslaughter5. In the case of Griffith V Strudebaker, it was stated that “a corporate entity may

not be convicted of murder or manslaughter as the sentence for that offence, namely a

mandatory penalty of death or life imprisonment respectively, is incapable of being imposed

against an artificial entity.6”

Also, another challenge that arose is that for the companies to be convicted for corporate

manslaughter, a human being had to be identified as the “controlling mind.” A corporation

could therefore escape conviction for involuntary manslaughter in cases where the individual

representing the controlling mind could not be properly identified and convicted for

manslaughter. This was seen in the case of R v P&O European Ferries (Dover) LTD. In this

particular case, a ferry known as the MS Herald of Free Enterprises left the Zeebrugge a port

in Belgium and capsized shortly after sailing. The sip capsized as a result of sailing with open

4
http://www.legislation.gov.uk/ukpga/2007/19/contents on 29 August 2017
5
Samson E & Mamodu D, ‘ Corporate Criminal Liability: Call for a New Legal Regime in Nigeria’ Journal of Law
and Criminal Justice, 2015
6
Samson E & Mamodu D, ‘Corporate Criminal Liability: Call for a New Legal Regime in Nigeria’ Journal of Law
and Criminal Justice, 2015
bow doors. The worker in charge of closing the door was asleep and as a result failed to close

the door. The chief officer made the assumption that the doors had been closed and returned

to the bridge. The captain could not see the open doors from the bridge and since he could not

in any way verify from the bridge that they were closed, he relied on the chief officer’s report,

and sailed off. The open doors let in water and the ship capsized. The accident resulted in the

death of 193 people a majority of whom succumbed to hypothermia. The company and five

individuals were prosecuted for corporate manslaughter but the prosecution failed. It was

stated that in order to convict the company of manslaughter, one of the individual defendants

who could be identified with the company as its controlling mind would have had to have

been guilty of manslaughter. Since this was not the case, the company could therefore not be

guilty.

Corporations charged with manslaughter were therefore difficult to convict as the controlling

mind was difficult to identify. But all this changed in the Lyme Bay canoeing disaster or the

case of R v Kite and Oll LTD where a company was found guilty and convicted of corporate

manslaughter7. This occurred after the controlling mind was identified. The company’s

managing director allowed a group of children to go canoeing in the Lyme Baye area on the

south of coastal England in harsh weather. They were accompanied by inexperienced

instructors who had only had a three-day training experience. No distress flares were

provided and neither was the coast guard notified. The canoes ended up capsizing and 4 of

the children died while the rest were severely injured. The parent company and the manager

were each charged with manslaughter and were both successfully convicted. The manager

was sentenced to three years imprisonment while the company was fined 60,000 pounds. In

this case Oll ltd was a small company and the manager Mr. Kite was easily proved to be the

controlling mind leading to a successful conviction of the company.

7
Daniels S, ‘Corporate manslaughter: new horizon or false dawn?’ Mountbatten Journal of Legal Studies