Catherine Noone (Fine Gael) | Oireachtas source

I welcome the Minister to the House and the opportunity to debate this important issue and while I do not oppose the Corporate Manslaughter (No. 2) Bill 2010, I believe it requires amendments before being passed into law. Currently the law provides for the offence of gross negligence manslaughter, a common law offence. Prosecutions for such offences are infrequent as such events are themselves uncommon. Perhaps the most famous of these rare events dates back to 1998. The accused, a funfair owner, was convicted of gross negligence manslaughter after a woman died when her chair became detached from a 20 year old chairoplane ride at the accused’s facility.

The law also already provides an offence of endangerment under section 13 of the Non-Fatal Offences against the Person Act 1997 which provides: "A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another." In addition the Safety Health and Welfare at Work Act 2005 provides statutory standards and practices to be adhered to by employers and employees. It includes offences for breaches of statutory safety standards.

The Corporate Manslaughter (No. 2) Bill 2010 has 13 sections and is similar in many respects to a draft Bill included in the Law Reform Commission’s report on corporate killing. The Bill provides for the creation of two criminal offences directed at those culpable for fatalities occurring in the corporate environment. The first is corporate manslaughter, the corporate offence which is directed at the culpable enterprise. The second is grossly negligent management causing death, the individual offence which is directed at a high managerial agent within a company. While the corporate offence cannot attract a custodial penalty the individual offence has penalties of a fine or up to 12 years imprisonment. The corporate offence is punishable by a fine. The convicted corporate entity may also be ordered to undertake specific actions on foot of orders handed down by the court.

Section 1 is an interpretation section which provides definitions of “court”, “high managerial agent” and “undertaking”. Section 2 sets out the offence of “corporate manslaughter” which is the death of a person caused by the gross negligence of an undertaking where the undertaking owed the deceased person a duty of care; breached the duty of care by failing to take all reasonable measures to anticipate and prevent risks to life; the breach of the duty of care involved a serious risk or serious personal harm and the breach caused the death. The section also sets out the factors about the undertaking that have to be considered in deciding whether the undertaking owes a duty of care.

Section 3 sets out the offence of “grossly negligent management causing death”. This section also sets out factors for consideration when determining whether a high managerial agent should be liable for the offence, such as the level of responsibility and powers of the person in question or whether he or she passed on information on the risk to those who could have eliminated the risk of serious harm or death. The Bill provides that a high managerial agent would still be open to prosecution even if the corporate entity had been dissolved. Section 13 provides the Short Title of the Bill. Most are valid points but there are some key issues for debate, first, regarding the offence of corporate manslaughter against an individual. This Bill provides for an offence by a “high managerial agent”, which is defined as “a person being a director, manager, or other similar officer of the undertaking, or a person who purports to act in such a capacity, . . . whether or not that person has a contract of employment with that undertaking;". In effect, the Bill will apply to any person who makes any management decision even if the person is not employed by the business in question. No matter how the definition of “a high managerial agent” is framed, the fundamental problem remains that the Bill is trying to define an offence by reference to the position of an individual in a hierarchy, whereas it is a general principle throughout our criminal law that the law applies equally to every citizen, depending only on the individual’s culpability. The second issue for debate is application of the offence of corporate manslaughter to unincorporated entities. The Bill would apply to all “undertakings” in the State. In the Bill:

“undertaking” means a person being a body corporate or an unincorporated body of persons engaged in the production, supply or distribution of goods or, the provision of a service . . . including those which are Government Departments and statutory bodies, whether carried on for profit or not, as well as faith based organisations and groups.

The fact that the Bill would apply the offence of corporate manslaughter to unincorporated bodies may well create a legal minefield. It would potentially apply to every employee and every volunteer in almost any kind of organisation. It would be difficult to conceive of any activity that the offence of corporate manslaughter would not apply to and potentially any person in the State could find themselves exposed to the risk of prosecution even if they have no corporate role whatsoever.

The third point is that there are no exempt activities in the Bill. The corporate manslaughter offence would apply to all activities, including our ambulance services, fire services, Defence Forces, Garda Síochána, the lifeboat service and air-sea rescue.