Examination of Witnesses (Questions 100
- 119)
MONDAY 31 OCTOBER 2005
MR CHRISTOPHER
DONNELLAN, MR
MICHAEL CAPLAN,
QC AND MR
MICK ANTONIW
Q100 Gwyn Prosser: I want to ask
you about the definition of "gross breach" in the Bill.
First of all, Mr Donnellan. Clause 3(2) of the Bill would require
jurors to consider a number of factors in order to decide whether
there has been a gross breach. Do you think these factors will
help jurors make their decision or will it allow the prosecution
more opportunities to make a very complicated decision even more
complicated?
Mr Donnellan: The first concern
I have about the clause itself is that I am not entirely sure,
when I read it, whether one can be taken on its own, whether they
all have to be taken together, or how. That is the first thing.
It needs clear drafting. Are they "and" or are they
"or" or can we take them all into account? The points
are well made; they are the points that should be considered,
but any one of them could be sufficient. For the word "gross"
generally, the current law on gross negligence manslaughter deals
with the fact that "gross" is something that is "very
bad". I know it sounds ridiculous to say so, but it is clear.
We are not talking about some failings; we are talking about the
really bad failings. The criteria that are set out here are really
how serious was the failure to comply with what needs to be done
to run a safe operation? That is clearly the primary one. Then
looking at the other aspects of it, we think that all of those
should be factors that can be considered. One is enough, but all
three or four should be included. I do not think it is too complicated
for a jury, no. I think juries can be greatly underestimated.
When 12 people have sat through a trial—and often they are,
sadly, fairly lengthy trials—in my experience, they have
grasped the issues, sometimes very quickly, sometimes with a bit
of help, but often in the longer trials they are ahead of many
of the lawyers before you get to the point you are going to make,
because they can see it coming. Do not underestimate their ability
to recognise something that is a gross failing when they see it.
Mr Caplan: I entirely agree with
Mr Donnellan that you should never underestimate the ability of
a jury. This is not the time and place to discuss juries but I
am concerned about what you are going to give the juries to consider,
the hoops they are going to have to be told by a judge to go through,
and sometimes the difficulty arises in the judge having to give
complex directions to a jury. If you just look at clause 3 at
the moment, you are talking in terms of, firstly, the health and
safety legislation. Next, any guidance under it. Presumably you
have to go through that. A judge may have to spend some time bringing
to the attention of the jury those matters which they are meant
to go away to consider. They have then got to consider the serious
nature of failure, what "serious" means, whether it
is a matter just for a jury whether someone knew or ought to have
known of the existence of a particular duty, etc. These are hoops
or questions you put to a jury which they have to go through,
and I think that is quite a complex matter, more complex particularly
because so often a direction may be given to a jury which is not
entirely clear, which leads to an appeal, which everyone wants
to avoid. Having gone this far, you will no doubt have some sympathy
for judges having to direct a jury on these particular matters.
Then you have to come to the question of profit. What does "profit"
mean in these circumstances? It is just economic profit or does
it mean something else? How are you going to gauge that? I, frankly,
have some concern with the length and breadth of clause 3 as it
stands. I can see it causing some difficulty in the future, and
potentially lengthening trials, because when you see all this
type of information, you begin perhaps to see all the type of
information which will have to be brought before a jury by all
sides, which will lengthen the process.
Mr Antoniw: I would reiterate
some of that, but I am concerned about this "and/or".
I think the intention must have been "or" because, if
read in conjunction with paragraph 4 at the bottom, there is a
whole series of other factors that the jurors can take into account.
So it seems to me what it is doing is setting off a couple of
the main items a jury need to consider, but that they are "or",
because if it were not "or", I would have considerable
concerns about the "sought to cause the organisation to profit
from that failing" because equally, companies profit in many
ways: by reputation, getting a job done on time, which may have
been achieved by cutting corners, etc. There are all sorts of
ways in which a company can profit, and how you would actually
prove that in court, that would be a major stumbling block. That
point needs to be clarified, and if it is then taken in conjunction
with paragraph 4, I do not have too much difficulty with it.
Q101 Gwyn Prosser: On the basis that
it is "or", is it an aid to decision-making for the
jury, or is it an encumbrance?
Mr Antoniw: I think it is an aid,
taken in conjunction with paragraph 4.
Q102 Gwyn Prosser: I want to move
now to individual liability. We have had quite a lot of strong
opinions on it. Mr Caplan, can you outline why your organisation
believes that sanctions for individuals such as disqualification
from directorships are necessary?
Mr Caplan: How does an organisation
operate? It operates through its individuals. To have teeth, our
view is that it is necessary to bring sanctions against individuals
as well as the company, and our view is that if you show that
individuals will be personally responsible for the activities,
that they will be accountable themselves personally, there is
more likelihood that they will bring the company into line to
make sure it complies with health and safety regulations. We find
a difficulty, both with the way matters are left at the moment
and also what we understood to be the concern earlier on, going
back into history over the past few years, when individuals as
well as the company were to be made accountable. The bottom line
of it is, if you hit the individuals who are responsible for the
company in some way with some kind of sanction, there is more
likelihood in our view that the company itself will comply with
the legislation and you will not get any prosecutions.
Mr Donnellan: We take the view
that at the conclusion of the proceedings there may be individuals
who have not been individually prosecuted who have been identified
as having seriously failed in the organisation, and the concern
is that there is no provision to deal with that aspect of the
matter, and therefore we wondered whether it was appropriate use
of an extension of the Disqualification of Directors Act to try
and achieve that, subject, of course, to a fair hearing. It cannot
just be done as a side issue. There has to be proper representation.
The evidence about that failing will have been heard and that
identifiable individual would need to have the opportunity to,
if necessary, give evidence themselves but also perhaps have some
of that evidence recalled on the issue of their disqualification.
That can be a sub-aspect of the case after the main issue of corporate
manslaughter has been determined.
Q103 Gwyn Prosser: Do you think that
is a strong enough sanction against directors who are considered
to share important liabilities in terms of public perception,
for instance, and moderating and influencing the way that boards
of directors take their decisions about matters concerning health
and safety protection?
Mr Donnellan: If there are provisions
in the Act in due course to cover that aspect, then people, directors
of companies or senior managers of companies, will know in advance
that there is that risk of a penalty being imposed upon them in
some form, even though the charge is against the company and not
against them as an individual. If they themselves as an individual
are seriously at fault, then they should be individually charged
with gross negligence manslaughter under the common law, which
subsists behind this, irrespective of what is in this Act.
Mr Antoniw: I think there is a
contradiction. If "senior manager" is kept in, then
it seems to me bizarre that you would not then have a penalty
aimed at that where you have proved overwhelmingly a particular
individual . . . If "senior" is taken out, so you are
looking at management failure generally, then I think the key
is in the actual sentencing provision of the Bill, because essentially
fines alone I do not believe are sufficient. I think there does
need to be, somewhere along the way, accounting in terms of the
role and the duty of directors themselves, and I think that is
a particular weakness. Corporate probation is one of the proposals
that I have made in respect of this. That would be something where
companies would be required to come back to the courts to show
that they have implemented measures, that they are operating safely
etc. The question then would be, if they are failing to do that,
how do you then penalise the company? Do you solely use fines?
For some smaller companies that might not be appropriate. You
would want to look at what the role is of those individuals within
the company who have responsibilities who are failing to carry
out those responsibilities. How do you penalise them? One way
may be disqualification from directorships. There may be others.
Q104 Gwyn Prosser: On the issue of
defining statutory duties of directors, there is a view that to
include those in the Bill would slow down the process. Would it
be possible, do you think, to include statutory duties in different
legislation to allow this Bill to proceed without further delay?
Mr Antoniw: Yes, you can do it
perfectly well separately. It is just I think the range of penalties
to make this Bill effective, without something that comes back
to some form of accountability of directors, is a weakness.
Q105 Mr Rooney: Mr Donnellan, the
Bar Council has commented that careful judgment needs to be made
as to which functions of government should fall within the public
policy exemption. Do you think that should be a decision for the
courts or do you think the Government could do that by clarification
in the Bill?
Mr Donnellan: We are suggesting
that the clarification should be in the Bill, identified by way
of a schedule or otherwise, to include all the functions of departments
that you want to have included. It is important to make sure that
there is as best as possible a level playing field between the
public and private sector responsibilities, so that there is no
get-out for whoever is in charge and whoever is responsible for
the same sort of issues, and you cannot hide behind a public exemption.
That should I think be properly stated in the Act of Parliament
and not left to some sort of further interpretation in due course.
Q106 Mr Rooney: In the case of government,
public bodies, who would be the person, in the event of a prosecution,
whom you would see as ultimately responsible? Would it be the
Secretary of State? Would it be an executive agency chief executive?
Where would it lie?
Mr Donnellan: That is for you.
Q107 Mr Rooney: No; you are the lawyer.
Mr Donnellan: I am commenting
on what has been proposed. It is the Government department, is
it not, the department responsible for that activity? Whoever
is put up as the figurehead is a matter for that department. The
"senior manager", if we for the moment use that term,
as it is in the Bill, is not necessarily the senior managing director.
It is the company's liability, not necessarily the senior managing
director's. You can have the same principle within a government
department.
Mr Antoniw: It is effectively
what happens in civil cases, where the writ is served against
the Secretary of State.
Q108 Mr Rooney: Maybe. I may not
have picked it up, but what about this concept of public function?
Mr Antoniw: It is clause 4(2),
is it not? I accept that there is a need to not involve within
this process people who are involved in having to take political
decisions, priority decisions, spending decisions and so on, because
I think if you went down that road, it would be opening Pandora's
box, and I do not think we would actually achieve anything. Is
that the sort of area you were asking me about? I think 4(2) deals
with that and I have no problem with 4(2) in the Bill.
Q109 Chairman: You made the statement
that you would exempt public policy makers from, for example,
taking decisions about the allocation of resources. Mr Donnellan
in his evidence brings up the case that if Railtrack decided not
to put enough money into rail maintenance and were held liable
under those circumstances, if Railtrack were to be replaced with
a public sector organisation, Network Rail, which had to work
within a budget set by the Secretary of State for Transport which
had the same consequences, is it right to say that one is potentially
open to a charge for corporate manslaughter because it is a private
company and the other one would not be because it is a politician
taking, quite possibly, very sensible decisions about the best
use of public money?
Mr Antoniw: I think probably no,
it is not right, but I cannot see any other way of creating a
certain cut-off point without effectively creating the sort of
quagmire of litigation that will go round in circles for years.
I do not think there is any clear, one-or-other answer to that.
I think you have to draw a line somewhere, and even with companies
there is a clear defence. If you had a government that was clearly
taking political decisions that were in breach of statute, they
would be open to challenge in other ways.
Q110 Mr Rooney: They may be open
to challenge in other ways, but that is an administrative process,
and in the mean time, to think of an extreme example, say the
Government abolished whatever the medical licensing authority
is called now so that drug companies were free to just throw things
on the market and people took pot luck. From what you are saying
. . .
Mr Antoniw: You then get to the
bona fides of the decision-making process. If people are taking
decisions that they know are clearly going to lead to deaths,
then yes, they are open to challenge in all sorts of ways. The
question is whether it should be a political sanction or whether
it should be a legal sanction.
Q111 Mr Rooney: Do you think there
is a clear distinction between public policy and public function?
Mr Antoniw: Not a clear one. There
are distinctions, but I am not quite sure where I would draw the
line on it.
Q112 Mr Rooney: You have expressed
particular concerns about the exemption of deaths in custody and
those resulting from police activities from the scope of the offence.
Are these deaths already addressed by other forms of accountability,
and what would accountability under the criminal law add?
Mr Donnellan: You have lots of
accountability at the moment that already exists under the Health
and Safety Act, and of course, it does apply to a number of bodies
as well. So the fact that you have a different number of avenues
to go against a body does not mean that you should not have the
serious one where a death occurs and there is a serious failure
in the organisation that is responsible for that death. We do
not see the distinction that should be drawn in relation to deaths
in custody. I am not making a comment about it as it appears to
the public today. I am just saying as a potential that if a structure
is not being run in a proper way and is riddled, as the description
in the original inquiry in the Herald of Free Enterprise, from
top to bottom with failures, if the same structure were riddled
from top to bottom and there was a death in custody, why on earth
should not that responsibility lie with the more serious charge,
whatever the other forms of accountability are? The public are
entitled to have the same accountability explored and prosecuted,
and it may be that it is in a sense notional but at least that
public statement has been made and, in so far as you can, a punishment
can be imposed, which we accept is perhaps something that would
cause embarrassment within the department that has to pay a fine,
but more particularly, it identifies that accountability in a
very public way.
Q113 Mr Rooney: In terms of a police
force, any fine levied on them would finish up being paid by council
tax payers, would it not? The force itself would not suffer in
that sense.
Mr Caplan: I was hoping to stay
out of the argument but clearly I cannot. You could take out—and
you do at the moment—cases of breach of health and safety
legislation against the police, for example, and as you can against
corporations. We are talking about organisations, prosecuting
them for gross negligence manslaughter or whatever label you use,
and it seems therefore why should you not do that against a police
force if a police force carries the same responsibility? We have
made it clear we see no reason why you should not do that. Indeed,
we have raised the point—I will not go into it now—whether
in fact there are human rights issues here under Article 2 and
Article 13. Leaving those aside, the second part of your question,
I think, was whether inquiries can adequately be dealt with through
other fora, one of which is very interesting in the Government's
paper, inquests, because as I understand it, it is being said
on the one hand by the Government in their commentary to this
draft legislation that one of the ways of doing this is through
inquests, and we know they fulfil a very good function, especially,
unhappily, in a situation where someone has died in custody in
difficult circumstances or in a transport catastrophe, but on
the other hand, we hear, as I understand it, the Government saying
"We want to amend this and limit inquests." Indeed,
as we know, even if you get a finding of unlawful killing from
an inquest, it does not necessarily follow someone is going to
be charged, let alone convicted, of that offence. So I doubt whether
in fact there are necessarily other ways in which these types
of activities can properly be investigated. We come back to the
situation where we could see no reason why you could not say that
the police force as well as other government agencies should not
be as accountable as a corporation.
Q114 Mr Rooney: Maybe. Mr Donnellan,
can I come back to this public function? On the basis of the definition
in the Bill, if you were advising a body like, say, a local authority
about which of its functions would fall within that definition,
would you feel comfortable doing that or do you think further
work needs doing?
Mr Donnellan: I would not feel
comfortable doing it and I think further work does need doing.
Q115 Mr Rooney: Finally, on military
activity, again, the Bar Council has said it is important that
deaths which occur in the course of normal military activity are
not excluded from the offence. How do you, and can you in fact
distinguish between basic elements of training and training for
combat?
Mr Donnellan: It is the proximity
to the combat. We are trying to say when it is a specific combat
training, there is an operation about to happen, then at that
stage it probably is protected, but what you must not do is put
in the Act a clause that is so wide it can cover your basic training,
which of course has some combat element in it, for the new recruit
having just arrived, very raw, at the age of 16 or so. You have
to make sure you confine any restriction or exemption to what
it really needs to be confined to, and not make it so wide you
can catch anything. At the moment it just is too wide, on our
reading of it. You need to narrow that down so that the basic
training and everything else, the same liability as everybody
else, but when you come to a specific operation, you are going
to have difficulty actually examining it in any event, and we
can see the need for an exemption, but only then.
Q116 Mr Rooney: I understand what
you are saying but I find it difficult to find a dividing line
between basic elements of training and training for combat, in
that from the minute you join the armed forces, you are being
trained for combat. That is the whole raison d'être.
Mr Donnellan: Yes. The distinction
I am making is a specific combat operation you can exempt, but
general combat training you should not exempt.
Q117 Justine Greening: Obviously
one of the other contentious issues of the draft Bill has been
the concept of a limited territorial application in terms of when
you can actually bring an offence. Given that UK citizens who
commit manslaughter abroad can be tried in our courts, should
not the same rule apply to UK companies?
Mr Antoniw: Yes.
Mr Caplan: I see no reason, except
for this warning: the practicalities of it. I have been dealing
quite recently with a matter which occurred outside the territorial
boundaries of the UK, and it is all very well saying yes, we should
do this, but when you look at the practicalities of getting evidence,
of interviewing people, bringing that evidence here, and if we
are talking about death as well, in maybe very difficult circumstances,
I just add that warning.
Mr Donnellan: I have nothing to
add to that. It is the practical difficulties, and we agree with
the Law Commission's view on this, that is, not to extend. It
may be that in due course it can be, but it is complicated, and
it is better to get a Bill up and running and then see whether
it is possible to extend the territorial aspect.
Q118 Justine Greening: Just to investigate
the practicalities of it a bit further, why should the place where
harm is sustained determine whether a company can be tried in
our courts? Should we not also look perhaps instead at whether
the company is incorporated here and whether the grossly negligent
behaviour occurs here, and have the input into the scenario determine
what happens to it rather than just where the output takes place?
Mr Donnellan: The first thing
is, we do not want to just limit the prosecution to companies
which are incorporated in England and Wales. We want to be able
to prosecute any company which is responsible while operating
here. You do not want to confuse that aspect of it with the territorial
question. With harm occurring elsewhere, you have the practical
difficulties of investigating it in another jurisdiction. There
may also be other proceedings in that jurisdiction in respect
of that same harm. Obviously, it does depend on where it is. These
are the difficulties that Mr Caplan has referred to. It comes
back to that same point.
Q119 Justine Greening: Which elements
of the offence do you think would be the most difficult to establish
in terms of these practical considerations for the territorial
application?
Mr Donnellan: I am not really
sure, is the answer to that question.
|
