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


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.


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2005
Prepared 20 December 2005