Select Committee on Home Affairs and Work and Pensions Minutes of Evidence


Examination of Witnesses (Questions 70 - 79)

MONDAY 31 OCTOBER 2005

MR CHRISTOPHER DONNELLAN, MR MICHAEL CAPLAN, QC AND MR MICK ANTONIW

  Q70  Chairman: Good afternoon. Thank you very much indeed, gentlemen, for joining us this afternoon for the second public scrutiny session that we have held on the Bill. Perhaps each of you in turn could first introduce yourselves for the record.

  Mr Donnellan: I am Christopher Donnellan. I am a barrister. I practise from chambers at 36 Bedford Row in independent private practice. I was asked by the Law Reform Committee of the Bar Council to prepare a report with another colleague, Sean Enright, in response to the Bill.

  Mr Antoniw: My name is Mick Antoniw. I am a partner with Thompsons Solicitors, acting mainly for trade unions in various matters involving fatalities and so on.

  Mr Caplan: Michael Caplan. I am a solicitor in private practice. I also chaired the sub-committee for the London Criminal Court Solicitors' Association on this particular matter, and I appear as chairman of that sub-committee.

  Q71  Chairman: Thank you very much. If we can start by looking at the issue of which organisations are covered by the Bill and the definitions of that, Mr Donnellan, your evidence suggests that the offence does not need to cover small, unincorporated businesses because they would already be covered by the individual manslaughter offence. Should the offence apply to large unincorporated bodies, where it might not be possible to prosecute individuals, like partnerships, like some law firms, accountancy firms, and so on?

  Mr Donnellan: The difficulty is, as has been identified by the Law Commission as well, that the corporate bodies are readily identifiable as a legal entity that can be defined. The difficulty with the various other bodies, partnerships and the like, is identifying them in the same way and identifying their legal liability in the same way, and therefore it is quite a complicated process to look at each one in turn, then try and find a phrase to cover all of them within the provisions of an Act of Parliament like this. For example, if you take a partnership, the liability of each of the partners might be clear and it may be possible therefore, as a result of an incident that has resulted in death, to prosecute one partner or the other partner or both for the existing common law offence of gross negligence manslaughter, so you have covered it for that situation, but it is much more complicated to try to see how to phrase it to cover all the other unincorporated and perhaps large bodies.

  Q72  Chairman: Can you explain to me, a layman, that we seem to be able to define these bodies perfectly acceptably for accountancy and tax purposes, so in other areas of life it is clear what some of these organisations actually are. Why should it be possible to do it relatively easily if you are looking to tax them but, as you say, it is very difficult to define them if we are trying to hold them accountable for somebody's death?

  Mr Donnellan: My own practice is basic criminal law, so I am not a corporate specialist and in fact I do not deal with a lot of the sort of areas that Mr Antoniw will because he is within a firm of solicitors. Where there is a legal entity that has been described and has already been defined, as the corporate bodies have, as having a liability, although the difficulty with the existing law is proving it subsequently, and it was identified by the judgments of the higher courts that they are clear and identifiable and therefore we can prosecute them, we hold on to that and say that is clear and identifiable, but to go any further than that, I do not think it is within my ability to give you a clear answer to the question that you have just asked.

  Q73  Chairman: Can I be clear about the implication of what you are saying? The implication of what you say is that there are a set of large, unincorporated bodies that we simply have to accept cannot be prosecuted for the offence of corporate manslaughter because of the difficulty of defining them in law.

  Mr Donnellan: As a body, yes, but not as individuals who are responsible within that body.

  Q74  Chairman: But that would be under the existing law of manslaughter?

  Mr Donnellan: Under the existing law, yes.

  Q75  Chairman: Mr Antoniw, do you have a view on this?

  Mr Antoniw: Yes. It concerns me that unincorporated bodies are not included, partly because many of the fatalities which occur are in work places, on building sites. Many of the companies—one which I am involved in at the moment—roofing companies, all sorts of companies that are subcontracted down the chain, are often one-man bands; they are often unlimited companies. They trade as a particular company, they are clearly identifiable. It may be an option for them to be charged with common law manslaughter, but I see no reason why they should be excluded from the ambit of this.

  Q76  Chairman: Do you share Mr Donnellan's view that there is just a problem in defining these bodies or are there ways round that for large and small organisations?

  Mr Antoniw: I think it is just a question of bringing unincorporated companies within the ambit of the legislation and effectively giving them a legal entity for the purpose of this legislation.

  Q77  Chairman: Your view is that is achievable?

  Mr Antoniw: It is achievable and I think it is desirable.

  Q78  Chairman: Mr Caplan, do you have any ideas?

  Mr Caplan: I got myself into a difficulty under the draft which was published some years ago, which I think everyone would accept is potentially much wider than the draft Bill that we have at the moment. I suggested in an article that that would include the two-man electricity company or gasman as well as the very small firms of solicitors, and I did not think necessarily that was what was intended in the legislation, to which somebody wrote to me from the Health & Safety Executive to say why should they not be responsible, like everyone else? I think the difficulty is a matter of principle: either every organisation, unincorporated or not, is going to be covered, or you are going to have a distinction. It is quite right to say that if you have an unincorporated association, and you may have very small ones, you may say, quite rightly, that should not be covered if it is a two-man band, but of course, you have unincorporated associations which are much larger. Are you not going to cover them as well? I think that is the difficulty. Either you cover everyone or no-one of that particular ilk.

  Q79  Chairman: Do you think, on large organisations first, that it is possible to cover them legally? The difficulties with the definitions are not so great as to defeat the draftsman?

  Mr Caplan: I think there is a difficulty, for the very reason that if it is an unincorporated association, it is very difficult to distinguish between the two-man company and the 20-man company. Either you are going to say as a title they are all going to be covered or they are not going to be covered.


 
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