|
| |
|
8 | Child-protection and probation functions |
| |
(1) | A duty of care to which this section applies is not a “relevant duty of care” |
| |
unless it falls within section 3(1)(a) or (b). |
| |
(2) | This section applies to any duty of care that a local authority or other public |
| |
authority owes in respect of the exercise by it of functions conferred by or |
| 5 |
| |
(a) | the Children Act 1989 (c. 41), |
| |
(b) | Part 2 of the Children (Scotland) Act 1995 (c. 36), or |
| |
(c) | the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), |
| |
| so far as relating to the protection of children from harm. |
| 10 |
(3) | This section also applies to any duty of care that a local probation board or |
| |
other public authority owes in respect of the exercise by it of functions |
| |
| |
(a) | Chapter 1 of Part 1 of the Criminal Justice and Court Services Act 2000 |
| |
| 15 |
(b) | section 27 of the Social Work (Scotland) Act 1968 (c. 49), or |
| |
(c) | Article 4 of the Probation Board (Northern Ireland) Order 1982 |
| |
(S.I. 1982/713 (N.I. 10)). |
| |
(4) | In this section “public authority” has the same meaning as in section 6 of the |
| |
Human Rights Act 1998 (c. 42) (disregarding subsections (3)(a) and (4) of that |
| 20 |
| |
| |
| |
(1) | This section applies where— |
| |
(a) | it is established that an organisation owed a relevant duty of care to a |
| 25 |
| |
(b) | it falls to the jury to decide whether there was a gross breach of that |
| |
| |
(2) | The jury must consider whether the evidence shows that the organisation |
| |
failed to comply with any health and safety legislation that relates to the |
| 30 |
alleged breach, and if so— |
| |
(a) | how serious that failure was; |
| |
(b) | how much of a risk of death it posed. |
| |
| |
(a) | consider the extent to which the evidence shows that there were |
| 35 |
attitudes, policies, systems or accepted practices within the |
| |
organisation that were likely to have encouraged any such failure as is |
| |
mentioned in subsection (2), or to have produced tolerance of it; |
| |
(b) | have regard to any health and safety guidance that relates to the alleged |
| |
| 40 |
(4) | This section does not prevent the jury from having regard to any other matters |
| |
| |
| |
|
| |
|
| |
|
“health and safety legislation” means any statutory provision dealing |
| |
with health and safety matters, including in particular provision |
| |
contained in the Health and Safety at Work etc. Act 1974 (c. 37) or the |
| |
Health and Safety at Work (Northern Ireland) Order 1978 (S.I. 1978/ |
| |
| 5 |
“health and safety guidance” means any code, guidance, manual or |
| |
similar publication that is concerned with health and safety matters and |
| |
is made or issued (under a statutory provision or otherwise) by an |
| |
authority responsible for the enforcement of any health and safety |
| |
| 10 |
“statutory provision” means provision contained in, or in an instrument |
| |
made under, any Act, any Act of the Scottish Parliament or any |
| |
Northern Ireland legislation. |
| |
| |
10 | Power to order breach etc to be remedied |
| 15 |
(1) | A court before which an organisation is convicted of corporate manslaughter |
| |
or corporate homicide may order it to take specified steps to remedy— |
| |
(a) | the breach mentioned in section 1(1); |
| |
(b) | any matter that appears to the court to have resulted from that breach |
| |
and to have been a cause of the death. |
| 20 |
(2) | An order under this section may be made only on an application by the |
| |
prosecution specifying the terms of the proposed order. |
| |
| Any such order must be on such terms (whether those proposed or others) as |
| |
the court considers appropriate having regard to any representations made, |
| |
and any evidence adduced, in relation to that matter by the prosecution or on |
| 25 |
behalf of the organisation. |
| |
(3) | An order under this section must specify a period within which the steps |
| |
referred to in subsection (1) are to be taken. |
| |
| The period so specified may be extended or further extended by order of the |
| |
court on an application made before the end of that period or extended period. |
| 30 |
(4) | An organisation that fails to comply with an order under this section is guilty |
| |
of an offence, and liable on conviction on indictment to a fine. |
| |
| |
11 | Application to Crown bodies |
| |
(1) | An organisation that is a servant or agent of the Crown is not immune from |
| 35 |
prosecution under this Act for that reason. |
| |
(2) | For the purposes of this Act— |
| |
(a) | a department or other body listed in Schedule 1, or |
| |
(b) | a corporation that is a servant or agent of the Crown, |
| |
| is to be treated as owing whatever duties of care it would owe if it were a |
| 40 |
corporation that was not a servant or agent of the Crown. |
| |
(3) | For the purposes of section 3— |
| |
| |
|
| |
|
| |
|
(i) | employed by or under the Crown for the purposes of a |
| |
department or other body listed in Schedule 1, or |
| |
(ii) | employed by a person whose staff constitute a body listed in |
| |
| |
| is to be treated as employed by that department or body; |
| 5 |
(b) | any premises occupied for the purposes of— |
| |
(i) | a department or other body listed in Schedule 1, or |
| |
(ii) | a person whose staff constitute a body listed in that Schedule, |
| |
| are to be treated as occupied by that department or body. |
| |
(4) | For the purposes of sections 3 to 8 anything done purportedly by a department |
| 10 |
or other body listed in Schedule 1, although in law by the Crown or by the |
| |
holder of a particular office, is to be treated as done by the department or other |
| |
| |
(5) | Subsections (3)(a)(i), (3)(b)(i) and (4) apply in relation to a Northern Ireland |
| |
department as they apply in relation to a department or other body listed in |
| 15 |
| |
12 | Application to armed forces |
| |
(1) | In this Act “the armed forces” means any of the naval, military or air forces of |
| |
the Crown raised under the law of the United Kingdom. |
| |
(2) | For the purposes of section 3 a person who is a member of the armed forces is |
| 20 |
to be treated as employed by the Ministry of Defence. |
| |
(3) | A reference in this Act to members of the armed forces includes a reference to— |
| |
(a) | members of the reserve forces (within the meaning given by section 1(2) |
| |
of the Reserve Forces Act 1996 (c. 14)) when in service or undertaking |
| |
| 25 |
(b) | persons serving on Her Majesty’s vessels (within the meaning given by |
| |
section 132(1) of the Naval Discipline Act 1957 (c. 53)). |
| |
13 | Application to police forces |
| |
(1) | In this Act “police force” means— |
| |
(a) | a police force within the meaning of— |
| 30 |
(i) | the Police Act 1996 (c. 16), or |
| |
(ii) | the Police (Scotland) Act 1967 (c. 77); |
| |
(b) | the Police Service of Northern Ireland; |
| |
(c) | the Police Service of Northern Ireland Reserve; |
| |
(d) | the British Transport Police Force; |
| 35 |
(e) | the Civil Nuclear Constabulary; |
| |
(f) | the Ministry of Defence Police. |
| |
(2) | For the purposes of this Act a police force is to be treated as owing whatever |
| |
duties of care it would owe if it were a body corporate. |
| |
(3) | For the purposes of section 3— |
| 40 |
(a) | a member of a police force is to be treated as employed by that force; |
| |
(b) | a special constable appointed for a police area in England and Wales is |
| |
to be treated as employed by the police force maintained by the police |
| |
| |
|
| |
|
| |
|
(c) | a special constable appointed for a police force mentioned in paragraph |
| |
(d) or (f) of subsection (1) is to be treated as employed by that force; |
| |
(d) | a police cadet undergoing training with a view to becoming a member |
| |
of a police force mentioned in paragraph (a) or (d) of subsection (1) is |
| |
to be treated as employed by that force; |
| 5 |
(e) | a police trainee appointed under section 39 of the Police (Northern |
| |
Ireland) Act 2000 (c. 32) or a police cadet appointed under section 42 of |
| |
that Act is to be treated as employed by the Police Service of Northern |
| |
| |
(f) | a police reserve trainee appointed under section 40 of that Act is to be |
| 10 |
treated as employed by the Police Service of Northern Ireland Reserve; |
| |
(g) | a member of a police force seconded to the Serious Organised Crime |
| |
Agency or the National Policing Improvement Agency to serve as a |
| |
member of its staff is to be treated as employed by that Agency. |
| |
(4) | A reference in subsection (3) to a member of a police force is to be read, in the |
| 15 |
case of a force mentioned in paragraph (a)(ii) of subsection (1), as a reference to |
| |
a constable of that force. |
| |
(5) | For the purposes of section 3 any premises occupied for the purposes of a |
| |
police force are to be treated as occupied by that force. |
| |
(6) | For the purposes of sections 3 to 8 anything that would be regarded as done by |
| 20 |
a police force if the force were a body corporate is to be so regarded. |
| |
| |
(a) | by virtue of subsection (3) a person is treated for the purposes of this |
| |
Act as employed by a police force, and |
| |
(b) | by virtue of any other statutory provision (whenever made) he is, or is |
| 25 |
treated as, employed by another organisation, |
| |
| the person is to be treated for those purposes as employed by both the force |
| |
and the other organisation. |
| |
(8) | In subsection (7) “statutory provision” means provision contained in, or in an |
| |
instrument made under, any Act, any Act of the Scottish Parliament or any |
| 30 |
Northern Ireland legislation. |
| |
14 | Procedure, evidence and sentencing |
| |
(1) | Any statutory provision (whenever made) about criminal proceedings applies, |
| |
subject to any prescribed adaptations or modifications, in relation to |
| |
proceedings under this Act against— |
| 35 |
(a) | a department or other body listed in Schedule 1, or |
| |
| |
| as it applies in relation to proceedings against a corporation. |
| |
| |
“prescribed” means prescribed by an order made by the Secretary of State; |
| 40 |
“provision about criminal proceedings” includes— |
| |
(a) | provision about procedure in or in connection with criminal |
| |
| |
(b) | provision about evidence in such proceedings; |
| |
(c) | provision about sentencing, or otherwise dealing with, persons |
| 45 |
| |
|
| |
|
| |
|
“statutory” means contained in, or in an instrument made under, any Act |
| |
or any Northern Ireland legislation. |
| |
(3) | A reference in this section to proceedings is to proceedings in England and |
| |
Wales or Northern Ireland. |
| |
(4) | An order under this section is subject to negative resolution procedure. |
| 5 |
| |
(1) | This section applies where— |
| |
(a) | a person’s death has occurred, or is alleged to have occurred, in |
| |
connection with the carrying out of functions by a relevant public |
| |
| 10 |
(b) | subsequently there is a transfer of those functions, with the result that |
| |
they are still carried out but no longer by that organisation. |
| |
(2) | In this section “relevant public organisation” means— |
| |
(a) | a department or other body listed in Schedule 1; |
| |
(b) | a corporation that is a servant or agent of the Crown; |
| 15 |
| |
(3) | Any proceedings instituted against a relevant public organisation after the |
| |
transfer for an offence under this Act in respect of the person’s death are to be |
| |
| |
(a) | the relevant public organisation, if any, by which the functions |
| 20 |
mentioned in subsection (1) are currently carried out; |
| |
(b) | if no such organisation currently carries out the functions, the relevant |
| |
public organisation by which the functions were last carried out. |
| |
| The Secretary of State may by order specify a relevant public organisation |
| |
other than the one mentioned in paragraph (a) or (b) as the organisation against |
| 25 |
which the proceedings are to be instituted. |
| |
(4) | If the transfer occurs while proceedings for an offence under this Act in respect |
| |
of the person’s death are in progress against a relevant public organisation, the |
| |
proceedings are to be continued against— |
| |
(a) | the relevant public organisation, if any, by which the functions |
| 30 |
mentioned in subsection (1) are carried out as a result of the transfer; |
| |
(b) | if as a result of the transfer no such organisation carries out the |
| |
functions, the same organisation as before. |
| |
| The Secretary of State may by order specify a relevant public organisation |
| |
other than the one mentioned in paragraph (a) or (b) as the organisation against |
| 35 |
which the proceedings are to be continued. |
| |
(5) | An order under subsection (3) or (4) is subject to negative resolution procedure. |
| |
| |
16 | DPP’s consent required for proceedings |
| |
Proceedings for an offence of corporate manslaughter— |
| 40 |
(a) | may not be instituted in England and Wales without the consent of the |
| |
Director of Public Prosecutions; |
| |
|
| |
|
| |
|
(b) | may not be instituted in Northern Ireland without the consent of the |
| |
Director of Public Prosecutions for Northern Ireland. |
| |
17 | No individual liability |
| |
(1) | An individual cannot be guilty of aiding, abetting, counselling or procuring the |
| |
commission of an offence of corporate manslaughter. |
| 5 |
(2) | An individual cannot be guilty of aiding, abetting, counselling or procuring, or |
| |
being art and part in, the commission of an offence of corporate homicide. |
| |
18 | Abolition of liability of corporations for manslaughter at common law |
| |
The common law offence of manslaughter by gross negligence is abolished in |
| |
its application to corporations. |
| 10 |
| |
19 | Power to amend Schedule 1 |
| |
(1) | The Secretary of State may amend Schedule 1 by order. |
| |
(2) | A statutory instrument containing an order under this section is subject to |
| |
affirmative resolution procedure, unless the only amendments to Schedule 1 |
| 15 |
that it makes are amendments within subsection (3). |
| |
| In that case the instrument is subject to negative resolution procedure. |
| |
(3) | An amendment is within this subsection if— |
| |
(a) | it is consequential on a department or other body listed in Schedule 1 |
| |
| 20 |
(b) | in the case of an amendment adding a department or other body to |
| |
Schedule 1, it is consequential on the transfer to the department or other |
| |
body of functions all of which were previously exercisable by one or |
| |
more organisations to which section 1 applies, or |
| |
(c) | in the case of an amendment removing a department or other body |
| 25 |
from Schedule 1, it is consequential on— |
| |
(i) | the abolition of the department or other body, or |
| |
(ii) | the transfer of all the functions of the department or other body |
| |
to one or more organisations to which section 1 applies. |
| |
| 30 |
(1) | A power of the Secretary of State to make an order under this Act is exercisable |
| |
| |
(2) | Where an order under this Act is subject to “negative resolution procedure” the |
| |
statutory instrument containing the order is subject to annulment in pursuance |
| |
of a resolution of either House of Parliament. |
| 35 |
(3) | Where an order under this Act is subject to “affirmative resolution procedure” |
| |
the order may not be made unless a draft has been laid before, and approved |
| |
by a resolution of, each House of Parliament. |
| |
(4) | An order under this Act— |
| |
(a) | may make different provision for different purposes; |
| 40 |
|
| |
|
| |
|
(b) | may make transitional or saving provision. |
| |
21 | Minor and consequential amendments |
| |
Schedule 2 (minor and consequential amendments) has effect. |
| |
22 | Commencement and savings |
| |
(1) | The preceding provisions of this Act come into force on such day as the |
| 5 |
Secretary of State may appoint by order. |
| |
(2) | Section 1 does not apply in relation to anything done or omitted before the |
| |
commencement of that section. |
| |
(3) | Section 18 does not affect any liability, investigation, legal proceeding or |
| |
penalty for or in respect of an offence committed wholly or partly before the |
| 10 |
commencement of that section. |
| |
(4) | For the purposes of subsection (3) an offence is committed wholly or partly |
| |
before the commencement of section 18 if any of the conduct or events alleged |
| |
to constitute the offence occurred before that commencement. |
| |
23 | Extent and territorial application |
| 15 |
(1) | Subject to subsection (2), this Act extends to England and Wales, Scotland and |
| |
| |
(2) | An amendment made by this Act extends to the same part or parts of the |
| |
United Kingdom as the provision to which it relates. |
| |
(3) | Section 1 applies if the harm resulting in death is sustained in the United |
| 20 |
| |
(a) | within the seaward limits of the territorial sea adjacent to the United |
| |
| |
(b) | on a ship registered under Part 2 of the Merchant Shipping Act 1995 |
| |
| 25 |
(c) | on a British-controlled aircraft as defined in section 92 of the Civil |
| |
Aviation Act 1982 (c. 16); |
| |
(d) | on a British-controlled hovercraft within the meaning of that section as |
| |
applied in relation to hovercraft by virtue of provision made under the |
| |
Hovercraft Act 1968 (c. 59); |
| 30 |
(e) | in any place to which an Order in Council under section 10(1) of the |
| |
Petroleum Act 1998 (c. 17) applies (criminal jurisdiction in relation to |
| |
| |
(4) | For the purposes of subsection (3)(b) to (d) harm sustained on a ship, aircraft |
| |
or hovercraft includes harm sustained by a person who— |
| 35 |
(a) | is then no longer on board the ship, aircraft or hovercraft in |
| |
consequence of the wrecking of it or of some other mishap affecting it |
| |
| |
(b) | sustains the harm in consequence of that event. |
| |
|
| |
|