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Corporate Manslaughter and Corporate Homicide Bill


Corporate Manslaughter and Corporate Homicide Bill

1

 

A

Bill

[AS AMENDED IN STANDING COMMITTEE B]

To

Create a new offence that, in England and Wales or Northern Ireland, is to be

called corporate manslaughter and, in Scotland, is to be called corporate

homicide; and to make provision in connection with that offence. 

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

Corporate manslaughter and corporate homicide

1       

The offence

(1)   

An organisation to which this section applies is guilty of an offence if the way

in which its activities are managed or organised—

(a)   

causes a person’s death, and

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(b)   

amounts to a gross breach of a relevant duty of care owed by the

organisation to the deceased.

(2)   

The organisations to which this section applies are—

(a)   

a corporation;

(b)   

a department or other body listed in Schedule 1;

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(c)   

a police force (as defined in section 12(1)).

   

In this Act “corporation” does not include a corporation sole but includes any

body corporate wherever incorporated.

(3)   

An organisation is guilty of an offence under this section only if the way in

which its activities are managed or organised by its senior management is a

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substantial element in the breach referred to in subsection (1).

(4)   

For the purposes of this Act—

(a)   

“relevant duty of care” has the meaning given by section 2, read with

sections 3 to 7;

 
Bill 23654/1
 
 

Corporate Manslaughter and Corporate Homicide Bill

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(b)   

a breach of a duty of care by an organisation is a “gross” breach if the

conduct alleged to amount to a breach of that duty falls far below what

can reasonably be expected of the organisation in the circumstances;

(c)   

“senior management”, in relation to an organisation, means the persons

who play significant roles in—

5

(i)   

the making of decisions about how the whole or a substantial

part of its activities are to be managed or organised, or

(ii)   

the actual managing or organising of the whole or a substantial

part of those activities.

(5)   

The offence under this section is called—

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(a)   

corporate manslaughter, in so far as it is an offence under the law of

England and Wales or Northern Ireland;

(b)   

corporate homicide, in so far as it is an offence under the law of

Scotland.

(6)   

An organisation that is guilty of corporate manslaughter or corporate homicide

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is liable on conviction on indictment to a fine.

(7)   

The offence of corporate homicide is indictable only in the High Court of

Justiciary.

Relevant duty of care

2       

Meaning of “relevant duty of care”

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(1)   

A “relevant duty of care”, in relation to an organisation, means any of the

following duties owed by it under the law of negligence—

(a)   

a duty owed to its employees or to other persons working for the

organisation or performing services for it;

(b)   

a duty owed as occupier of premises;

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(c)   

a duty owed in connection with—

(i)   

the supply by the organisation of goods or services (whether for

consideration or not),

(ii)   

the carrying on by the organisation of any construction or

maintenance operations,

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(iii)   

the carrying on by the organisation of any other activity on a

commercial basis, or

(iv)   

the use or keeping by the organisation of any plant, vehicle or

other thing.

(2)   

Subsection (1) is subject to sections 3 to 7.

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(3)   

For the purposes of this Act, whether a particular organisation owes a duty of

care to a particular individual is a question of law.

   

The judge must make any findings of fact necessary to decide that question.

(4)   

In this section—

“construction or maintenance operations” means operations of any of the

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following descriptions—

(a)   

construction, installation, alteration, extension, improvement,

repair, maintenance, decoration, cleaning, demolition or

dismantling of—

(i)   

any building or structure,

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Corporate Manslaughter and Corporate Homicide Bill

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(ii)   

anything else that forms, or is to form, part of the land,

or

(iii)   

any plant, vehicle or other thing;

(b)   

operations that form an integral part of, or are preparatory to,

or are for rendering complete, any operations within paragraph

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(a);

“the law of negligence” includes—

(a)   

in relation to England and Wales, the Occupiers’ Liability Act

1957 (c. 31), the Defective Premises Act 1972 (c. 35) and the

Occupiers’ Liability Act 1984 (c. 3);

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(b)   

in relation to Scotland, the Occupiers’ Liability (Scotland) Act

1960 (c. 30);

(c)   

in relation to Northern Ireland, the Occupiers’ Liability Act

(Northern Ireland) 1957 (c. 25), the Defective Premises

(Northern Ireland) Order 1975 (S.I. 1975/1039 (N.I. 9)), the

15

Occupiers’ Liability (Northern Ireland) Order 1987 (S.I. 1987/

1280 (N.I. 15)) and the Defective Premises (Landlord’s Liability)

Act (Northern Ireland) 2001 (c. 10);

“premises” includes land, buildings and moveable structures.

3       

Public policy decisions, exclusively public functions and statutory

20

inspections

(1)   

Any duty of care owed by a public authority in respect of a decision as to

matters of public policy (including in particular the allocation of public

resources or the weighing of competing public interests) is not a “relevant duty

of care”.

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(2)   

Any duty of care owed in respect of things done in the exercise of an

exclusively public function is not a “relevant duty of care” unless it falls within

section 2(1)(a) or (b).

(3)   

Any duty of care owed by a public authority in respect of inspections carried

out in the exercise of a statutory function is not a “relevant duty of care” unless

30

it falls within section 2(1)(a) or (b).

(4)   

In this section—

“exclusively public function” means a function that falls within the

prerogative of the Crown or is, by its nature, exercisable only with

authority conferred—

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(a)   

by the exercise of that prerogative, or

(b)   

by or under a statutory provision;

“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

section);

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“statutory function” means a function conferred by or under a statutory

provision;

“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.

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4       

Military activities

(1)   

Any duty of care owed by the Ministry of Defence in respect of—

 
 

Corporate Manslaughter and Corporate Homicide Bill

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(a)   

operations within subsection (2),

(b)   

activities carried on in preparation for, or directly in support of, such

operations, or

(c)   

training of a hazardous nature, or training carried out in a hazardous

way, which it is considered needs to be carried out, or carried out in

5

that way, in order to improve or maintain the effectiveness of the armed

forces with respect to such operations,

   

is not a “relevant duty of care”.

(2)   

The operations within this subsection are operations, including peacekeeping

operations and operations for dealing with terrorism, civil unrest or serious

10

public disorder, in which members of the armed forces come under attack or

face the threat of attack or violent resistance.

(3)   

Any duty of care owed by the Ministry of Defence in respect of activities

carried on by members of the special forces is not a “relevant duty of care”.

(4)   

In this section—

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“the armed forces” has the meaning given by section 11, and a reference

to members of the armed forces is to be read in accordance with

subsection (3) of that section;

“the special forces” means those units of the armed forces the

maintenance of whose capabilities is the responsibility of the Director

20

of Special Forces or which are for the time being subject to the

operational command of that Director.

5       

Policing and law enforcement

(1)   

Any duty of care owed by a public authority in respect of—

(a)   

operations within subsection (2),

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(b)   

activities carried on in preparation for, or directly in support of, such

operations, or

(c)   

training of a hazardous nature, or training carried out in a hazardous

way, which it is considered needs to be carried out, or carried out in

that way, in order to improve or maintain the effectiveness of officers

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or employees of the public authority with respect to such operations,

   

is not a “relevant duty of care”.

(2)   

The operations within this subsection are operations for dealing with

terrorism, civil unrest or serious disorder in which officers or employees of the

public authority in question come under attack or face the threat of attack or

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violent resistance.

(3)   

Any duty of care owed by a public authority in respect of other policing or law-

enforcement activities is not a “relevant duty of care” unless it falls within

section 2(1)(a) or (b).

(4)   

In this section—

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“policing or law-enforcement activities” includes—

(a)   

activities carried on in the exercise of functions that are—

(i)   

functions of police forces, or

(ii)   

functions of the same or a similar nature exercisable by

public authorities other than police forces;

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(b)   

activities carried on in the exercise of functions of constables

employed by a public authority;

 
 

Corporate Manslaughter and Corporate Homicide Bill

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(c)   

activities carried on in the exercise of functions exercisable

under Chapter 4 of Part 2 of the Serious Organised Crime and

Police Act 2005 (c. 15) (protection of witnesses and other

persons);

(d)   

activities carried on to enforce any provision contained in or

5

made under the Immigration Acts;

“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

section).

6       

Emergencies

10

(1)   

Any duty of care owed by an organisation within subsection (2) in respect of

the way in which it responds to emergency circumstances (or circumstances

believed to be emergency circumstances) is not a “relevant duty of care” unless

it falls within section 2(1)(a) or (b).

(2)   

The organisations within this subsection are—

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(a)   

a fire and rescue authority in England and Wales;

(b)   

a fire and rescue authority or joint fire and rescue board in Scotland;

(c)   

the Northern Ireland Fire and Rescue Service Board;

(d)   

any other organisation providing a service of responding to emergency

circumstances (or circumstances believed to be emergency

20

circumstances) either—

(i)   

in pursuance of arrangements made with an organisation

within paragraph (a), (b) or (c), or

(ii)   

(if not in pursuance of such arrangements) otherwise than on a

commercial basis;

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(e)   

a relevant NHS body;

(f)   

an organisation providing ambulance services in pursuance of

arrangements made by, or at the request of, a relevant NHS body;

(g)   

an organisation providing services for the transport of organs, blood,

equipment or personnel in pursuance of arrangements made by, or at

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the request of, a relevant NHS body;

(h)   

an organisation providing a rescue service;

(i)   

the armed forces.

(3)   

Any duty of care owed in respect of the carrying out, or attempted carrying

out, of a rescue operation at sea in emergency circumstances (or circumstances

35

believed to be emergency circumstances) is not a “relevant duty of care” unless

it falls within section 2(1)(a) or (b).

(4)   

Any duty of care owed in respect of action taken—

(a)   

in order to comply with a direction under Schedule 3A to the Merchant

Shipping Act 1995 (c. 21) (safety directions), or

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(b)   

by virtue of paragraph 4 of that Schedule (action in lieu of direction),

   

is not a “relevant duty of care” unless it falls within section 2(1)(a) or (b).

(5)   

In this section—

“the armed forces” has the meaning given by section 11;

“emergency circumstances” means circumstances that are present or

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imminent and—

 
 

Corporate Manslaughter and Corporate Homicide Bill

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(a)   

are causing, or are likely to cause, serious harm or a worsening

of such harm, or

(b)   

are likely to cause the death of a person;

“relevant NHS body” means—

(a)   

an NHS foundation trust, National Health Service trust, Special

5

Health Authority, Primary Care Trust or Local Health Board in

England and Wales;

(b)   

a Health Board or Special Health Board in Scotland, or the

Common Services Agency for the Scottish Health Service;

(c)   

a Health and Social Services trust or Health and Social Services

10

Board in Northern Ireland;

“serious harm” means—

(a)   

serious injury to or the serious illness (including mental illness)

of a person;

(b)   

serious harm to the environment (including the life and health

15

of plants and animals);

(c)   

serious harm to any building or other property.

7       

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 2(1)(a) or (b).

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(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

under—

(a)   

the Children Act 1989 (c. 41),

(b)   

Part 2 of the Children (Scotland) Act 1995 (c. 36), or

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(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.

(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

conferred by or under—

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(a)   

Chapter 1 of Part 1 of the Criminal Justice and Court Services Act 2000

(c. 43),

(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)).

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(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

section).

Gross breach

8       

Factors for jury

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(1)   

This section applies where—

(a)   

it is established that an organisation owed a relevant duty of care to a

person, and

 
 

Corporate Manslaughter and Corporate Homicide Bill

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(b)   

it falls to the jury to decide whether there was a gross breach of that

duty.

(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

alleged breach, and if so—

5

(a)   

how serious that failure was;

(b)   

how much of a risk of death it posed.

(3)   

The jury may also—

(a)   

consider the extent to which the evidence shows that there were

attitudes, policies, systems or accepted practices within the

10

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

breach.

(4)   

This section does not prevent the jury from having regard to any other matters

15

they consider relevant.

(5)   

In this section—

“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

20

Health and Safety at Work (Northern Ireland) Order 1978 (S.I. 1978/

1039 (N.I. 9));

“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

25

authority responsible for the enforcement of any health and safety

legislation;

“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.

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Remedial orders

9       

Power to order breach etc to be remedied

(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);

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(b)   

any matter that appears to the court to have resulted from that breach

and to have been a cause of the death.

(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

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the court considers appropriate having regard to any representations made,

and any evidence adduced, in relation to that matter by the prosecution or on

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.

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