(II) Human defendants

While French law rejected the criminal responsibility of personnes morales, their dirigeants were left in the firing line and this remains true in those areas where the corporation remains immune, as in the case of the local authorities’ powers of health and safety. This criminalisation of elected officials led to the change of the substantive definition of involuntary homicide for individual ‘decision makers’,¹¹⁸ which has left (p.418) more junior employees more likely to being charged.¹¹⁹ In English law, a finding of criminal responsibility on the part of a company does not preclude its officers or employees from being held liable in respect of their own criminal acts, and in regulatory offences it is often explicitly provided that a senior manager can also be liable if the company’s offence was committed with his consent or as a reason of his neglect.¹²⁰ However, there has been a general tendency in health and safety contexts for any prosecutions to be brought against the company.¹²¹

(D) Concluding remarks

Overall, therefore, English law possesses a very considerable range of criminal offences available to sanction the supply of unsafe products, but the vast majority of those which are in practice available have four key features.

First, they are statutory offences either of strict liability or of negligence (or something in between) and therefore form part of what are often called ‘regulatory offences’ or ‘quasi-crime’.¹²² According to some observers, at the root of this distinction lies an understanding of violence as an interpersonal act of aggression committed by individuals, rather than the results of a dangerous policy, perpetrated by an institution.¹²³ The distinction is reinforced in English law by the arrangements for the enforcement of ‘regulatory offences’.¹²⁴

Secondly, the ‘regulatory’ offences are generally triable summarily, that is, by the Magistrates’ Court rather than the Crown Court (the main exceptions being public nuisance and offences under the Health and Safety at Work Act¹²⁵). This affects the extent of a court’s power to order compensation.¹²⁶

Thirdly, the ingredients of these offences (and of public nuisance) do not refer to any personal injury or death which they may cause. There is no crime of negligently causing personal injuries however serious and manslaughter requires proof of gross negligence beyond reasonable doubt. This means that there is little reason for a prosecutor to gather information or adduce evidence as to any injury which an offence may cause. As a result, the court often has only a very general understanding of the injury caused to any victims and little knowledge of its long-term prognosis, let alone its financial consequences.

Fourthly, while there is typically little difficulty in establishing the criminal responsibility of corporations in respect of regulatory offences (given that the corporation can often be held in law to have done the actus reus, for example, supplying an unsafe product), there is very much more difficulty in establishing their responsibility for (p.419) manslaughter even where individuals within the corporation have committed the necessary acts and possessed the necessary mens rea.