Examination of Witnesses (Questions 60
- 69)
MONDAY 24 OCTOBER 2005
MR DAVID
BERGMAN AND
PROFESSOR STEVE
TOMBS
Q60 Justine Greening: In terms of
those additional duties, they may be developed obviously over
the course of time by fresh legal cases coming. Do you not think
perhaps that leaves things slightly too vague, given how serious
this offence would be, if somebody is found guilty?
Mr Bergman: Not really, because
the key structure of legislation is the Health and Safety at Work
legislation and, effectively, when they fail to comply with a
duty, companies can be prosecuted in relationship to those. It
would seem to me much more logical and appropriate then to ground
manslaughter in relationship to those existing duties for which
companies get prosecuted. Companies do not get prosecuted for
breaches of duties of care, generally, so in our view it makes
much more sense for the new offence to be grounded on statutory
legislation which is broader and is also much better understood
than civil law duties of care.
Professor Tombs: Just to go back to the
first point that was made, in terms of imposing additional burdens
upon companies, this does not impose additional burdens because
the knowledge is, or should be, existing within companies as to
what those statutory duties are, under Sections 2-6, and how they
can be discharged.
Mr Bergman: One other point is
the 2004 decision of the Court of Appeal in the case of R v Wacker
([2003] 1 Cr App R 329) which looked at the issue of duty of care,
which also talked about the inappropriateness of using civil law
duties of care blindly in relationship to a manslaughter case.
Q61 Justine Greening: I think another
point that you pick up on is that the duty of care is in the context
of, for example, supply by an organisation of goods and services,
and specifically it says supply rather than the provision. I think
that is something which in your submission you picked out as being
possibly a weakness. Can you give us an example of an activity
that you think might fall under the term being a provision of
services rather than a supply and therefore would not be captured
by this legislation?
Mr Bergman: I have to thank the
Home Office for clarifying this particular issue with me. When
I was discussing with them how the offence might apply in different
circumstances, it was their view that, certain services that are
provided by public bodies, they are providers of a service but
they are not suppliers of a service and they gave examples of
the Police or the Prison Service or law enforcement bodies, inspection
agencies. Effectively, that particular provision would exclude
the following deaths: deaths of members of the public from police
conduct, deaths of the public in a government prison, deaths from
failure by social services and deaths from government inspection
regimes. There may or may not be many deaths from these examples,
and obviously there are more deaths resulting from some of those
examples more than another: however, clearly, that particular
exemption is quite a powerful one and, we would suggest that this
can be dealt with easily by simply adding the words "or provision"
to allow those deaths technically to come within the application
of the offence.
Q62 Mrs Engel: You have answered
the first question I was going to ask you, when you went into
quite a lot of detail about the exemptions and the exclusively
public function and the public policy decisions of public authorities.
I do not think I will go into more detail on that. One of the
other problems with this Bill is that it gives legal protection
to the right to life. My question really is how can there be a
breach of the right to life and any other Articles in the European
Convention on Human Rights? It is moving on quite far but I think
it is a very important question.
Mr Bergman: That was the subject
of an appendix to our response, which was advice from two human
rights lawyers. I am not a human rights legal expert. The key
issue is that the right to life imposes certain positive obligations
upon states, and that has been defined in Strasbourg law and in
domestic law such that it is appropriate, in certain circumstances,
for there to be criminal law remedies. The core concern of our
legal advisers was that where the death resulted from certain
state activities the offence created exemptions, and the exemptions
are often based on arbitrary distinctions—whether or not
a death resulted from a public policy decision-making process,
for example. That was their key reason why they thought that potentially
the legislation as it is now, because of the high level of exemptions,
potentially can be in breach of the positive obligations imposed
from the state in relationship to the right to life.
Q63 Mrs Engel: Do you think really
that courts are qualified to make judgments on public policy decisions
made by public authorities?
Mr Bergman: I think they do. I
think this comes to the issue that you were going to ask us but
did not, which was about the exemption relating to public policy
decision-making, which is one of the key exemptions used by the
Government to restrict the application of this Bill. In our view,
it would be inappropriate to give a blanket exemption to deaths
which result from the public policy decision-making of public
bodies, however negligent that process of public policy decision-making
may have been. We accept that probably it is going to be in very
few cases where such a case will be appropriate to prosecute.
Indeed, there may be limited cases where investigations would
be required. Simply to give a blanket exemption, in the way that
the offence does, in our view is entirely inappropriate because
those decisions can cause death. It is important, if the Government
is going to make a historic decision, which the Government has
done by removing the principle of Crown immunity through this
Bill, if you are going to give that decision life, the Government
cannot then simply, in the same document, exempt those activities
that cause death from those public bodies.
Professor Tombs: To be clear,
it is easier for me, I think, to see this, as a non-lawyer, because
I do not understand the technicalities around it, but it seems
to me that those issues upon which the courts are adjudicating
are not the outcomes of public policy decisions, not public policy,
per se, but the mechanisms by which those decisions are
reached, to ensure that the way those decisions are made by a
senior manager or managers have met certain basic standards and
are not negligent, for example. It is the processes rather than
the outcomes that are being judged.
Q64 Mr Dunne: You talk about the
exemption from Crown immunity but one of the specific points of
evidence that you picked up was the question of military activities.
Do you accept that certain military activities should be exempted
from the law and, if so, which should be included and which should
be excluded?
Mr Bergman: We are not experts,
as an organisation, in the particular area of deaths resulting
from military activities. What we are concerned about is the breadth
of exemption that exists in the current draft, such that preparation,
of simulation of military activities, that results in death could
be exempt.
Q65 Mr Dunne: Do you mean training?
Mr Bergman: In support of training,
it is not just training, it is not just an exemption for training
for military activities but it is support activities for training
for military activities as such. The MoD has to comply currently
with health and safety law. They should be abiding by it. In the
course of undertaking training, which under the current rules
of jurisdiction that have been set up by the Home Office would
be in this country, if death takes place that is a result of gross
failure on the part of senior management—I cannot understand
how you can justify that such a death could be exempt from application
of the offence. It seems to be clear that sort of offence should
apply to them. Currently the army has to comply with existing
health and safety law; they cannot be prosecuted for it because
they are a Crown body, but they have to comply with it.
Mr Dunne: We could go on with this at
some length which I really do not want to, but I think you could
get in some definition about who is a senior manager in the context
of the Ministry of Defence, for example, as well, its different
sort of structure from a company. I should add, Chairman, I have
disclosed my interest to the Work & Pensions Committee but
I have not specifically to this Committee. I am a director of
companies and some of the things that have been said today make
me feel a little uneasy that I have not made that clear to the
Committee.
Chairman: Only for that reason or for
other reasons?
Q66 Mr Dunne: I do not think I have
got any risk. Moving on to my last question, which has been raised
with other witnesses today, and that is to do with territoriality,
the Government has argued that it would not be possible to apply
the offence to UK companies conducting business overseas and causing
deaths abroad. How do you react to that?
Mr Bergman: The current jurisdiction
principles that the Home Office is proposing are that if a death
takes place in Britain it does not matter where the management
failure took place. It could take place in Britain or it could
take place outside Britain, the British courts would have jurisdiction.
In principle, in an ideal world, you would argue that where British
companies operated abroad and they caused death that offence should
apply, but we accept that health and safety law does not apply
outside this country so there is no point really arguing that
particular position. What we do argue is this, that it would be
appropriate to allow British courts to have jurisdiction over
the following category of death, which is, where the death takes
place outside Britain as a result of gross negligence which takes
place in Britain: so the management failure, the serious management
failure, took place in Britain but the death took place outside
Britain. The bizarre thing about this is that would be a much
easier offence to investigate than the scenario of the management
failure outside Britain with the death in Britain. It would be
very difficult to investigate companies which were operating abroad;
it is much easier to investigate them in Britain. We believe that
the jurisdiction should extend in that way. I think it is important
just to give a context to this, and what we are saying is not
in any way radical, that under existing manslaughter law a British
citizen can be prosecuted even if they commit a death abroad and
their conduct is abroad and that can be brought home to the British
courts. In our view, a British company, or companies operating
in Britain, should have the same sorts of limitations to their
activities. There is a good public policy reason for that. The
British Government should not want British companies to export
hazards, to use Britain as a base for exporting hazardous activities,
as such. In our view, that would be an appropriate change.
Professor Tombs: Again, to speak
as a non-lawyer, the proposal seems counter-intuitive, to me.
As an employee of a university, if my university asked me to go
to work in South Africa or the Middle East, which it has done,
to do some consultancy work, I would expect my university to carry
out some form of risk assessment which meets its duty of care
to me, as an employee. I do not think that duty ends simply because
I go to work for three months or three weeks in a different jurisdiction.
Certainly, if my university sets up a subsidiary company in Malaysia,
which it might easily do and asks me or colleagues to go to work
there, again, I do not understand—it seems to me entirely
counter-intuitive—that one would not expect decisions made
in Liverpool, which is the base of my university, not to be judged
according to English law, no matter where any death may take place.
Q67 Chairman: Can I ask a question
about the interaction of this with public policy decisions and
it might help to clarify our understanding of this. There was
a case, a week or so ago, of Government ministers losing, effectively,
a High Court case regarding the deportation of a Zimbabwean asylum-seeker.
In circumstances where, for example, a minister had agreed the
deportation of a failed asylum-seeker and that asylum-seeker then
died in the country to which they had been returned, is it your
view that under those circumstances the minister would be open
not only to having their decision challenged, as they might well
be at the moment, either under ECHR or, historically, as happens,
through judicial review, but also might be open to criminal prosecution;
in which case, under what circumstances?
Mr Bergman: First of all, it is
important to note there is often a misunderstanding, not that
you have it, in relationship to Crown immunity. Civil servants
and ministers technically can be prosecuted for criminal offences
now. They do not have Crown. It is the departments of government,
the bodies, which have Crown immunity. Currently there could be
circumstances in which civil servants could be prosecuted for
manslaughter if their conduct was subject to investigation. In
relationship to the particular question that you raised, clearly
that brings together two tricky issues: number one, the jurisdiction
issue and, number two, the public policy issue. We would say that
any activity which was grossly negligent, which effectively complied
with the senior management test in Britain, within an organisation,
which is quite a tough test, not an easy one, whether it is our
view of what the test should be or the Home Office's test of what
it should be—falling far below what could reasonably be
expected, and a death takes place directly as a result of that
and you can prove the chain of causation, then clearly an investigation
should take place and if the evidence is proved then a prosecution
should take place and conviction should follow. In relationship
to the examination of the public policy decision-making, that
may not be a straightforward process, we accept, but clearly the
process should be gone into. For example, if the minister or a
group of ministers, civil servants or senior managers within the
Home Office all knew, in fact, that there was a serious threat
to this particular person and, despite that, despite having clear
awareness of that, they decided not to prevent him from being
deported then clearly that would be an appropriate set of decisions
to be examined under an offence like this.
Q68 Mr Rooney: You said in your memorandum
that it is reasonable to assume that courts will continue to impose
fines less than the FSA, for instance, despite the more serious
offence. Have you changed your mind on that since the Balfour
Beatty/Network Rail judgment, or do you think that still stands?
Mr Bergman: I will make an introductory
comment about sentences. If the Government can be criticised for
one thing, for which there is absolutely no excuse, it is the
way it has dealt with sentences. It has had years to consider
alternative ways of sentencing organisations and companies. Canadian
provinces and Australian states have produced report after report
after report detailing alternative forms of sentences that can
be imposed upon organisations. They are out there, they are used,
there are options available, and the fact that the British Government
has not been able to do the sort of work that one small Canadian
province or Australian state has been able to do in the last 10
or 15 years is extraordinary. I just want to put that on the record.
I think it is important to note that the fines are large but often
they are not as large when you look at the profits and turnover
of these companies. Balfour Beatty is a very large company; we
are talking about profits and turnover of hundreds of millions
of pounds. That is one point. The second point is, if Balfour
Beatty had been convicted of manslaughter how large would the
fine have been? It would have been much, much larger. It was fined
for a health and safety offence. Maybe the judge also had in his
mind that the law is unfair so he needed to impose a fine that
was higher perhaps than one made for a usual health and safety
offence. But what the sentence against Balfour Beatty indicates
is that a fine for manslaughter would be much, much higher, maybe
half of the profits of Balfour Beatty, the whole year's profits
of Balfour Beatty may have been threatened. I do not think that
the fact that the courts are suddenly imposing large fines is
an argument against the offence of corporate manslaughter and
the need to consider what levels of fines courts can impose in
relationship to manslaughter. If you look at the FSA and you look
at the sorts of fines, these are administrative fines, these are
not fines which are imposed by the court, these are fines imposed
administratively, they are much, much larger than the sorts of
fines that are imposed by the courts in relationship to health
and safety offences.
Q69 Mr Rooney: Just on the possible
alternatives, a whole year's profits, well, smart accountants
can soon make profits disappear. Small businesses would not be
able to afford those smart accountants so they would be more at
risk, proportionately, and similarly on the percentage of turnover,
10% of Balfour Beatty's turnover, great, 10% of a corner shop
makes a life worth £5,000. There has to be some sort of minimum.
I do not think this is as easy as you appear to be saying. Accepting
that you cannot restitute a life that has been taken, you cannot
put a monetary value on it, it is more of a penalty thing. Do
you not think perhaps you have been, dare I say, glib?
Mr Bergman: When you think about
sentencing organisations, or indeed any form of defendant, I suppose,
you have got to look at the seriousness of the offence and the
wealth of that particular defendant and so both of those need
to be taken into account. You have picked up very astutely on
the problem about a lot of the discussion about fines and sentences,
because what may appear to be a relatively small fine may be to
a small company a devastating fine. What may appear to be a very
large fine, to a large company may be just a drop in the ocean.
It is important to look at the relationship of the fine to the
profits and turnover of an organisation, if that is what you are
doing, if you are imposing a cash fine. What was useful about
the way the FSA legislation is this, it had a provision that fines
should not exceed 10% turnover of the companies involved and this
seemed to encourage large fines. For years and years and years
the fines for health and safety offences have been relatively
low, they are now increasing. I cannot explain why that is the
case but clearly that is important, but I do not think that is
a reason to totally get rid of fines in relationship to possible
sanctions in relationship to manslaughter.
Professor Tombs: Can I add just
a couple of points to that. I think that you are right, it is
not easy, these questions are not easy. That takes us back, I
think, to David's very first point, which is that fines are a
very blunt instrument and there is a whole series of proposals
out there which should have been actively considered as part of
this legislation, and indeed more generally for health and safety
offences, which will take us beyond monetary fines. Fines are
very blunt and very crude and there is a whole series of problems
with them. A second point I would make is this. There will be
inequities but we do have to think in terms of percentages, because
if we allow discretion for judges and rely upon judges to push
up the fines for the bigger companies, actually beyond a certain
level probably they will not do that. The evidence in the United
States in the nineties, in fact, indicates that beyond a certain
level judges simply will not go because the fines look absolutely
outrageous, even though they may be a very small percentage of
turnover. I think, despite associated inequities, if we are going
to use fines we do need to look at some kind of unit or percentage
system, probably.
Chairman: Thank you very much indeed,
gentlemen. It was a very good first session.
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