| Summary
We are pleased that the Government has finally introduced a draft Corporate Manslaughter Bill. There is a strong need for a statutory offence that shifts the basis of liability for corporate manslaughter away from the requirement of identifying a 'directing mind' of a guilty company. This 'identification principle' has made prosecutions of large companies almost impossible under the current common law. It is now over eight years since the Government first announced it was going to consider such legislation and we would like to see an actual Bill introduced before the end of this parliamentary session 2005/06.
However, we are concerned that the current drafting of the Bill may not satisfy those who have previously felt so let down by the law. Although we welcome the removal of Crown immunity, we believe that some of the exemptions in the Bill are too broad. In particular we are concerned about the proposed exemption for deaths in police custody and prisons. In addition we recommend that the draft Bill should contain provision to prosecute an individual for contributing to the offence of corporate manslaughter and that the Government should have considered a wider package of corporate sanctions. We also believe that there should be no requirement to obtain the Director of Public Prosecution's consent before a private prosecution can be bought. The offence should also have wider territorial application than in the current draft Bill.
The proposed basis for liability in the draft Bill is more complex than it needs to be. The Government should remove the civil law concept of a duty of care in negligence from the Bill. It is surplus to requirements and adds unnecessary legal complication to the Bill. We also believe it is inappropriate to adopt a civil law concept as the basis for a criminal offence.
The restriction of management failure to that by senior managers is also problematic and has in effect reintroduced some of the problems of the 'identification principle'. We acknowledge the argument that the Law Commission's "management failure" test could cover failings within a company that occur at too low a level to be fairly associated with the company as a whole. We recommend that the Home Office should seek to address this specific concern without abandoning the Law Commission's general approach, which we support, of using 'management failure' as the basis for liability. We suggest that juries be assisted in their task by being required to consider whether there has been a serious breach of health and safety legislation and related guidance or other relevant legislation. In assessing this they could consider whether a corporate culture existed in the organisation that encouraged, tolerated or led to that management failure.
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