Abstract
In the matter of corporate homicide, the courts of the United Kingdom (UK). with a view to heal up the statutory weaknesses and to ensure justice have been utilizing different theories to indict the companies The judiciary through those theories tries to establish that the intention of the leading person of a company is that of the company Thus, the offence of such person is the offence of the company Amongst the theories, the identification theory is the most prominent one for corporate homicide which has been utilized by the judiciary of the UK over 40 years. The courts of Bangladesh can implement the identification theory for the same purpose. This article analyses those approaches especially the identification theory and its weaknesses with the help of judicial interpretations of the UK and explanations from scholarly articles and then represents arguments for the implementation of this theory in Bangladesh.
Key Words: Aggregation theory, Vicarious liability, Identification theory, corporate homicide, corporate criminal liability
1.0 Introduction
The tragic fire incident at Tazreen Fashions at Ashulia, Savar on 24th November 2012 which caused 112 garment workers burnt to death and many more wounded and the horrific collapse of Rana Plaza at Savar on 24th April 2013 accounts for the demise of 1135 hapless workers and many more as injured have blatantly represented the weaknesses of the labour laws and their enforcement abilities in Bangladesh in relation to the safety and security of the factory workers. After monitoring sixteen national daily newspapers from January 1, to December 31, 2010, it was found that the highest number of causalities occurred in the transport sector 1,217 persons followed by the ready-made garments sector of 743 persons,300 persons in fishery and agriculture sector and 248 persons in construction sector Statistical analysis showed that out of the total recorded figure, 891 workers were killed and 874 were critically injured at workplaces with occupational accidents variously caused by fire, explosion, falls from height, electrocution, stampede, unsafe handling and storage of toxic chemicals/chemical products, underground work etc. 464 workers were killed and 155 injured in incidents while traveling to and from the workplaces. The monitoring result also showed that 302 workers were killed and 521 injured in relation to different labour rights violations (i.e police action, physical assault by employers/management, workplace violence, killed by miscreants etc).[1] The premier law for the protection of workers is the Labour Act 2006 (as amended 2013) which has been minimally followed and maintained by the company owners and other relevant authorities. It is frequently commented that this type of sheer negligence, all the time, remains outside of the legal actions and the culprits have not yet been brought under justice. The reasons are not only that the victims are the poor, helpless and the deprived group of the society but that the law itself does not provide ample scope to convict the companies and their directors.
As the companies and corporation are legally deemed to be single entities, distinct and separate from all the individuals who compose them,[2] in case of any criminal liability the directors in order to evade their responsibility usually take the advantage by shifting that criminal liability to the company. The theory of identification, which is also known as ‘the direct mind theory’ is a litmus test to identify the key person behind the company and thereby make the company liable for the activities of that person or persons. As industrial accidents become a continuous and common phenomenon in Bangladesh, therefore, to shrink the gap between offence and justice, the judiciary of Bangladesh can use a very effective theory for the conviction of the real offenders in case of any corporate criminal activities. In this article, the theory of identification has been detailed especially by taking cognizance of the judicial decisions of the courts of the United Kingdom (UK). The article has also specified lacunae of this theory and analyzed the feasibility of the implementation of this theory in Bangladesh for the purpose of justice to the ill-fated industry related workers.
[1]2453 workers killed, 1841 critically injured in Bangladesh last year- OSHE Survey Report-2010 (Asian Network for the Rights of Occupational Accident Victims, 5 January 2011) <http://www.anroav.org/content/view/123/1/> accessed 10 March 2025.
[2]Salomon v A Salomon & Co Lid [1897] AC 22