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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