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These notes refer to the Corporate Manslaughter and Corporate Homicide Bill as introduced in the House of Commons on 20th July 2006
CORPORATE MANSLAUGHTER AND CORPORATE HOMICIDE BILL
1. These explanatory notes relate to the Corporate Manslaughter and Corporate Homicide Bill as introduced in the House of Commons on 20th July 2006. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause does not seem to require any explanation, none is given.
3. The Bill makes provision for a new offence of corporate manslaughter (to be called corporate homicide in Scotland) and for this to apply to companies and other incorporated bodies, Government departments and similar bodies and police forces. The Bill has 24 clauses and 2 Schedules.
4. Clause 1 defines the offence and identifies the sorts of organisation to which it will apply. Clause 2 sets out what is meant by a senior manager. The effect of clauses 3 to 8 is to identify the sort of activities covered by the new offence, and to specify certain functions performed by public authorities in relation to which the offence will not apply. Clause 9 outlines factors for the jury to consider when assessing an organisation's culpability. Clause 10 makes provision for remedial orders to be made on conviction.
5. Clauses 11 to 13 deal with the application of the offence to the Crown and police forces, where a number of provisions are required to reflect the particular status of Crown bodies and police forces. Clauses 14 and 15 make further supplemental provision to ensure that rules of procedure, evidence and sentencing apply to Crown bodies and police forces and to set out where liability will fall following machinery of Government changes or other cases where functions are transferred.
6. Clauses 16 to 18 deal with a number of ancillary matters, requiring the consent of the Director of Public Prosecutions to commence proceedings in England and Wales or Northern Ireland, precluding the prosecution of individuals as secondary participants in the new offence and abolishing the current law under which companies and other corporate bodies can be prosecuted for manslaughter on the basis of gross negligence. The remainder of the clauses in the Bill, 19 to 24, cover general points including the procedure for amending the list of Government departments and other bodies in Schedule 1, extent and jurisdiction.
7. The Schedules to the Bill set out the Government departments and other similar bodies to which the offence will apply and a number of minor and consequential amendments.
8. It is currently possible for a corporate body, such as a company, to be prosecuted for a wide range of criminal offences, including manslaughter. To be guilty of the common law offence of gross negligence manslaughter, there must have been a gross breach of a duty of care owed to the victim. The prosecution of a company for manslaughter by gross negligence is often referred to as "corporate manslaughter". As the law stands, before a company can be convicted of manslaughter, a "directing mind" of the organisation (that is, a senior individual who can be said to embody the company in his actions and decisions) must also be guilty of the offence. This is known as the identification principle. Crown bodies (those organisations that are legally a part of the Crown, such as Government departments) cannot currently be prosecuted for criminal offences under the doctrine of Crown immunity. In addition, many Crown bodies, such as Government departments, do not have a separate legal identity for the purposes of a prosecution.
9. In 1996 the Law Commission's report "Legislating the Criminal Code: Involuntary Manslaughter" (Law Com 237) included proposals for a new offence of corporate killing that would act as a stand-alone provision for prosecuting companies to complement offences primarily aimed at individuals. The Law Commission's report, including its proposals on corporate killing, provided the basis for the Government's subsequent consultation paper in 2000 "Reforming the Law on Involuntary Manslaughter: the Government's Proposals". These papers, and a summary of responses to the consultation paper, are available on the Home Office website (www.homeoffice.gov.uk).
10. A draft Corporate Manslaughter Bill (Cm 6497) was published in March 2005. This set out the Government's proposals for legislating for reform and proposed an offence based on the Law Commission's proposals, with some modifications, including the application of the new offence to Crown bodies. The draft Bill was subject to pre-legislative scrutiny by the Home Affairs and Work and Pensions Committees in the House of Commons that autumn. Their report was published in December 2005 (HC 540 I-III) and the Government responded in March 2006 (Cm 6755).
11. Although Scots criminal law on culpable homicide differs from the law of manslaughter elsewhere in the UK, the same issues of identifying a directing mind have arisen in Scotland. In 2005 the Scottish Executive established an Expert Group to review the law in Scotland on corporate liability for culpable homicide. The Group reported on 17 November 2005 and the report and other papers are available on the Scottish Executive website (www.scotland.gov.uk)
12. The Bill extends to the whole of the UK. Some provisions are, by their nature, only relevant to some parts of the UK.
Clause 1: The offence
13. Clause 1(1) defines the new offence of corporate manslaughter, which will be called corporate homicide in Scotland. The new offence builds on key aspects of the current common law offence of gross negligence manslaughter in England and Wales and Northern Ireland, described in paragraph 8 above, but makes corporations, and a range of Crown bodies, liable for the way in which the organisation's activities are run by its senior managers, rather than making liability contingent on the guilt of a particular individual. In summary, the offence is committed where, in particular circumstances, an organisation owes a duty to take reasonable care for the person's safety and the way in which activities of the organisation have been managed or organised by senior managers amounts to a gross breach of this duty and causes the person's death.
14. The elements of the new offence are:
15. The "senior management failure" aspect of the new offence attributes liability to a corporation in a different way from the current test for corporate liability for gross negligence manslaughter. It focuses on the way in which an organisation's senior managers manage or organise the organisation's activities. This adopts the general approach recommended by the Law Commission in its 1996 report: that liability should lie in the system of work adopted by the organisation for conducting a particular activity. This looks at how in practice managers organised the performance of a particular activity, rather than focusing on questions of individual culpability, and enables management conduct to be considered collectively as well as individually. However, the Bill attributes liability to the organisation only for failures in the way an organisation's senior managers managed or organised an activity. This is intended to focus the offence on the overall way in which an activity was being managed or organised by an organisation and to exclude more localised or junior management failings as a basis for liability (although these might provide evidence of management failings at more senior levels).
16. The Government indicated in its response (CM 6755) to the joint report of the Home Affairs and Work and Pensions Committees (session 2005-06 HC 540) on the draft Corporate Manslaughter Bill that it would seek an alternative to the "senior management failure" test for the new offence. The Government is continuing to consider whether this part of the Bill can be improved.
17. The senior management failure must amount to a (gross) breach of the duty of care owed by the organisation to the victim. This does not mean that the management of each and every activity carried out by the company needs to be considered: the test is whether the organisation is in breach of a duty of care owed to the victim. This duty will require the organisation to take reasonable care in respect of a particular activity: the one impacting on the victim. Whether the organisation was reasonably managing or negligent in respect of other activities is not therefore part of the test for liability.
18. Clause 1(2) sets out the sort of organisation to which the new offence applies. In the first place, this is corporations. These are defined as any body corporate, whether incorporated in the UK or elsewhere. This includes companies incorporated under companies legislation, as well as bodies incorporated under statute (as is the case with many non-Departmental Public Bodies and other bodies in the public sector) or by Royal Charter. However, the definition specifically excludes corporations sole, which cover a number of individual offices in England and Wales and Northern Ireland.
19. The Bill also binds the Crown and will apply to a range of Crown bodies such as government departments. Crown bodies rarely have a separate legal personality. Where they do, the application of the offence to corporations (and the Bill's application to the Crown) means that the offence will also apply to these bodies. Where they do not, a mechanism is required to identify which Crown bodies are covered by the offence and this is achieved by applying the offence to a list of government departments and other bodies set out in Schedule 1. Clause 19 sets out the procedure for amending the Schedule.
20. The new offence will be triable only in the Crown Court in England and Wales and Northern Ireland and the High Court of Justiciary in Scotland. These represent equivalent levels of court and involve proceedings before a jury. The sanction is an unlimited fine (clause 1(5)), although clause 10 makes provision in addition for remedial orders.
Clause 2: Senior managers
21. Clause 2 sets out what is meant by a senior manager. This relates to the requirement in clause 1(1) that the offence is concerned with the way in which an activity is managed or organised by senior managers of an organisation. This therefore defines the level of management responsibility at which the management or organisation of an activity is to be considered. This is intended to capture a level of responsibility that represents the overall way in which an organisation manages or organises any particular activity.
22. The definition identifies those whose management responsibilities relate to the whole of an organisation's activities or to a substantial part of them. What constitutes a substantial part of an organisation's activities will need to be considered in the context of individual organisations and will depend on their overall scale of activities. Activities that form a substantial part of a smaller organisation will differ from those representing a substantial part of a larger one. This links corporate liability to a particular level of management responsibility within the organisation.
23. The definition identifies two strands to management responsibility - the taking of decisions about how activities are managed or organised and actually managing those activities. This ensures that managers who set and monitor workplace practices as well as those providing operational management are covered. In either respect, a person must play a significant role in the management responsibility.
Clause 3: Meaning of "relevant duty of care"
24. The new offence only applies in circumstances where an organisation owed a duty of care to the victim under the law of negligence. This reflects the current position under the offence of gross negligence manslaughter and, by defining the necessary relationship between the defendant organisation and victim, sets out the broad scope of the offence. Duties of care commonly owed by corporations include the duty owed by an employer to his employees to provide a safe system of work and by an occupier of buildings and land to people in or on, or potentially affected by, the property. Duties of care also arise out of the activities that are conducted by corporations, such as the duty owed by transport companies to their passengers.
25. Clause 3(1) requires the duty of care to be one that is owed under the law of negligence. This will commonly be a duty owed at common law, although in certain circumstances these duties have been superseded by statutory provision. For example, in the case of the duty owed by an occupier, duties are now owed under the Occupiers' Liability Acts 1957 and 1984 and the Defective Premises Act 1972 (and equivalent legislation in Northern Ireland and Scotland), although the common law continues to define by whom and to whom the duty is owed.
26. Clause 3(1) also requires the duty of care to arise out of certain specific functions or activities performed by the organisation. The effect is that the offence will only apply where an organisation owes a duty of care:
27. The effect is to include within the offence the sort of activities typically pursued by companies and other corporate bodies, whether performed by commercial organisations or by Crown or other public bodies. Many functions that are peculiarly an aspect of government are not covered by the offence because they will not fall within any of the categories of duty of care in this clause. In particular, the offence will not extend to circumstances where public bodies perform activities for the benefit of the community at large but without supplying services to particular individuals. This includes wider policy-making activities on the part of central government, such as setting regulatory standards and issuing guidance to public bodies on the exercise of their functions. It also includes a number of front line activities such as holding prisoners in custody or statutory inspection and enforcement. In many circumstances, duties of care are unlikely to be owed in respect of such activities in any event, and they will remain subject to other forms of public accountability. Clauses 4 to 8 make supplementary provision to clarify that the offence does not apply to the performance of certain public functions. However, those clauses are not an exhaustive list of the circumstances in which the offence will not apply. The criteria of the duty of care and the specific list of categories also have an important role to play in this respect.
28. In criminal proceedings, questions of law are decided by the judge, whilst questions of fact, and the application of the law to the facts of the case, are generally for the jury, directed by the judge. Clause 3(3) provides that the existence of a duty of care in a particular case is a matter of law for the judge to decide. This reflects the heavily legal nature of the tests relating to the existence of a duty of care in the law of negligence. Because the judge will be deciding whether the circumstances of the case give rise to a duty of care, he will need to make certain determinations of fact that are usually for the jury. For example, if considering whether a corporation owes a duty of care as employer, the judge will need to decide whether the victim was an employee of the corporation. The questions of fact that the judge will need to consider will generally be uncontroversial and in any event will only be decided by the judge for the purposes of the duty of care question. If they otherwise affect the case, they will be for the jury to decide.
Clause 4: Public policy decisions, exclusively public functions and statutory inspections
29. Clause 4 makes provision specifically to exclude certain matters from the ambit of the offence. Clause 4(1) deals with decisions of public policy taken by public authorities. (Public authorities are defined by reference to the Human Rights Act 1998 and include core public bodies such as Government departments and local government bodies, as well as any other body some of whose functions are of a public nature. Courts and tribunals, who are not covered by the new offence, are excluded.) At present, the law of negligence recognises that some decisions taken by public bodies are not justiciable, in other words, are not susceptible to review in the courts. This is because they involve decisions involving competing public priorities or other questions of public policy. This might, for example, include decisions by Primary Care Trusts about the funding of particular treatments. A recent example in which the courts declined to find a duty of care on this basis related to whether the Department of Health owed a duty of care to issue interim advice about the safety of a particular drug. In many circumstances, these sorts of issues will not arise in respect of matters covered by the specified categories of duty within clause 3. And basing the offence on the duty of care should mean that the offence would not apply to these sorts of decision in any event. Clause 4(1) confirms, however, that deaths alleged to have been caused by such decisions will not come within the scope of the offence.
30. Clause 4(2) provides for an exemption in respect of intrinsically public functions. In many circumstances, functions of this nature will not be covered by the categories of duty set out in clause 3 (see paragraphs 26 and 27 above). However, it is possible that some such functions will amount to the supply of goods or services or be performed commercially, particularly if performed by the private sector on behalf of the State. For example, whilst holding prisoners in custody would not involve the supply of services, the management of a private prison would be an activity performed commercially. In other circumstances, things done in the exercise of such a function will involve the use of equipment or vehicles. Clause 4(2) therefore also makes specific provision to ensure that an organisation will not be liable for a breach of any duty of care owed in respect of things done in the exercise of "exclusively public functions", unless the organisation owes the duty in its capacity as an employer or as an occupier of premises. This test is not confined to Crown or other public bodies but also excludes any organisation (public or otherwise) performing that particular type of function. This does not affect questions of individual liability, and prosecutions for gross negligence manslaughter and other offences will remain possible against individuals performing these functions who are themselves culpable. The management of these functions will continue to be subject to other forms of accountability such as independent investigations, public inquiries and the accountability of Ministers through Parliament.
31. "Exclusively public functions" are defined in clause 4(4). The test covers both functions falling within the prerogative of the Crown (for example, where the Government provides services in a civil emergency) and types of activity that by their nature require a statutory or prerogative basis, in other words, that cannot be independently performed by private bodies. This looks at the nature of the activity involved. It therefore would not cover an activity simply because it was one that required a licence or took place on a statutory basis. Rather, the nature of the activity involved must be one that requires a particular legal basis, for example, functions relating to the custody of prisoners (the function of lawfully detaining someone requiring a statutory basis).
32. Clause 4(3) provides that an organisation will not be liable in respect of any duty of care owed in connection with the carrying out of statutory inspections, unless the organisation owes the duty in its capacity as an employer or as an occupier of premises. This exemption would cover regulatory activities to ensure compliance with statutory standards: for example, inspection activities by the health and safety enforcing authorities. It is unlikely that these bodies would owe duties of care in respect of such activities or that these activities would be performed commercially; nor would the exercise of these functions amount to the supply of services. It is possible, though, that the carrying out of an inspection might involve the use of equipment, so as to bring clause 3(1)(c)(iv) into play. This provision makes explicit that the performance of these functions will fall outside the scope of the offence.
Clause 5: Military activities
33. Clause 5 makes provision to exclude certain activities performed by the armed forces. A wide range of operational military activities will be exclusively public functions within the terms of clause 4(2) and so exempt from the offence. However, that exemption does not relate to an organisation's duties as employer or occupier. Clause 5 provides that certain military activities are exempt in respect of all categories of relevant duty of care. The exemption applies to the conduct, preparation and support of military operations as well as other hazardous and unpredictable circumstances, including peacekeeping operations and operations dealing with terrorism or serious public disorder. The law of negligence already recognises that the military authorities will rarely owe a duty of care in such circumstances. The fact that the Bill will not apply in such circumstances is made explicit on the face of the Bill. In addition, the exemption extends to training exercises that simulate these sorts of operations and to the activities of the special forces.
Clause 6: Policing and law enforcement
34. Clause 6 deals with activities performed by police forces and other law enforcement bodies. Subsection (1) provides an exemption that applies in respect of all categories of duty of care in clause 3, but only in certain limited circumstances. Subsection (3) provides a wider exemption, but not in respect of the duties of such bodies to provide a safe system of work for employees or to secure the safety of their premises. The effect is that in respect of the employer's duty of care, law enforcement bodies will be exempt only in respect of the conduct, preparation and support of operations dealing with terrorism, civil unrest or serious public disorder. The law of negligence has already recognised that the policing of violent disorder where the police come under attack or the threat of attack will not give rise to liability on the part of an employer. The Bill makes clear that such circumstances are exempt from the offence. The exemption also extends to training exercises that simulate these sorts of operations.
35. Subsection (3) applies to a wider range of policing and law enforcement activities, but not in respect of the duty of care owed as employer (or occupier). The exemption therefore operates to exclude circumstances where the pursuit of law enforcement activities has resulted in a fatality to a member of the public. Many of the activities to which this will be relevant will be ones that are not in any event covered by the offence either because no duty of care is owed or because they do not amount to the supply of services or the activities are exclusively public functions. However, this might not always be the case and some areas may give rise to question. Subsection (3) makes it clear that policing and law enforcement activities are not, in this respect, covered by the offence. This will include decisions about and responses to emergency calls, the manner in which particular police operations are conducted, the way in which law enforcement and other coercive powers are exercised, measures taken to protect witnesses and the arrest and detention of suspects. This exemption is not confined to police forces. It extends to other bodies operating similar functions and to other law enforcement activity. For example, it would cover the activities of Her Majesty's Revenue and Customs when conducting investigations and the activities of traffic officers. It also extends to the enforcement of immigration law, which would cover circumstances where, for example, the immigration authorities are taking action to arrest, detain or deport an immigration offender.
36. As with other matters not covered by the Bill, this does not exempt individuals from investigation or prosecution for individual offences, as the Bill does not have a bearing on the question of individual liability.
|© Parliamentary copyright 2006||Prepared: 21 July 2006|