Crime XXXXXXIV - Involuntary Manslaughter X

With regards to manslaughter charges brought against a corporation for the conduct of its employees for example when the driver of a train drives too fast and as a result a number of passengers that were on board the train lose their lives in an ensuing accident, in order to convict the driver or the members of the corporation responsible for ensuring the safety of the passengers, the prosecution needs to establish 1) gross negligence and 2) that the gross negligence can be attributed to someone in the corporation as opposed to the corporation itself.

In A-G's ref no 2 of 1999 (2000) the defendant, a rail operator, was charged with manslaughter, following a train accident in which 7 passengers lost their lives. During the trial it became evident that despite the driver being an experienced driver, relevant safety procedures were not observed and it was the lack of compliance or the inability to comply with the stipulated safety procedures at that time, that had caused the accident.

The attorney general referred the matter to the House of Lords on two points of law: -

1.   Can the defendant be convicted of gross negligence without taking into account the defendant’s state of mind? The answer is yes. The test that is to be applied is the objective test and the defendant can be convicted for gross negligence manslaughter without taking into account his state of mind, though it is easier to do so if it can be established that he was reckless. Gross negligence is a strict liability offence and therefore there is no need to establish mens rea (or the mental element). It can be inferred by the defendant’s conduct.

2.     However, a corporation by itself cannot be convicted of gross negligence manslaughter i.e. the gross negligence needs to be attributed to someone within the corporation who fulfills the elements needed to establish the crime, in the absence of which, the defendant cannot be convicted.

The test to establish gross negligence is the objective test or the reasonable man’s test see R v Adomako (1994) where the defendant was convicted for manslaughter when the oxygen pipes supplying oxygen during a surgery got disconnected. It is however easier to prove gross negligence when it can be established that the defendant was reckless.

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