Select Committee on Home Affairs and Work and Pensions First Report


50. The new offence of corporate manslaughter will apply to "organisations". An organisation is defined in clause 1(2) of the draft Bill as:

    (a) "a corporation"; or

    (b) "a government department or other body listed in the Schedule" (see para 63 below).

51. Clause 7 of the draft Bill removes Crown immunity for the offence so that, in principle, Crown bodies which are either corporations or are one of the government departments listed in the Schedule to the draft Bill, can be prosecuted for an offence of corporate manslaughter (removal of Crown immunity is discussed further in Chapter 10). We discuss each limb of this definition in turn below. We then consider the particular case of police forces.


52. A corporation is defined in the draft Bill as including any body corporate, wherever incorporated, except a corporation sole.[53] Partnerships, sole traders, and other unincorporated bodies, such as certain clubs and associations, are therefore excluded from the scope of the offence.

53. The application of the offence to corporations follows the original recommendation of the Law Commission (see para 19) that the offence of corporate killing should be capable of commission by any corporation (other than a corporation sole) but that it should not extend to unincorporated bodies. The Law Commission's report stated:

    "It would clearly be wrong to extend the offence to all unincorporated bodies, because there are many such bodies (for example a partnership of two individuals employing no-one) that would be unfairly disadvantaged by being charged with the corporate offence […] Any extension of the offence beyond incorporated bodies would therefore raise intractable problems as to the kinds of unincorporated body that ought not to be included".[54]

54. The application of the draft Bill to corporate bodies does, however, differ from the position the Government took in 2000 when it had declared that it did not wish "to create artificial barriers between incorporated and non-incorporated bodies".[55] In the introduction to the draft Bill the Home Office has justified its new position on the basis that unincorporated associations do not have a distinct legal personality to which liability can be assigned:

    "This is not simply a legal technicality but means that they do not exist as a legal person in the way that corporations do. As such, they cannot currently be prosecuted for gross negligence manslaughter, although individual members might".[56]

55. Some of our witnesses agreed with the decision to limit the offence to bodies corporate.[57] The President of the Queen's Bench Division, Lord Justice Judge, warned that including unincorporated associations within the scope of the offence in the draft Bill could "produce potentially serious miscarriages of justice" where small partnerships were being prosecuted:

    "Let us take two men, two people who run a business. The example that was drawn to my attention is running a gas fitting system. Partner A is negligent, something goes wrong, the elderly lady in the house has a cold and does not smell the gas and she dies. Partner B is not there at all; Partner B is working at another house doing a job perfectly well and has no idea what Partner A is up to. You could end up in that partnership with a very heavy fine, rightly imposed for the negligence of A, which has very serious effects on Partner B".[58]

56. A significant number of witnesses, however, criticised the Government's decision and called for the offence to be extended to all undertakings,[59] and in particular to all employing organisations.[60] The Transport and General Workers Union submitted that:

    "Any organisation - regardless of whether it is a private company, an unincorporated body or a Crown body - can cause risk to its workers and to members of the public. Therefore, if a corporate manslaughter law is to be effective then it must apply to every employing organisation, including unincorporated bodies and all Crown bodies".[61]

57. Others shared this opinion but acknowledged the difficulties in extending the scope of the offence to all unincorporated bodies.[62] Hugh Robertson from the Trades Union Congress argued:

    "We would like to see as broad a definition as possible but we do recognise the difficulties in drafting legislation that covers every single opportunity… Rather than making sure that every single individual, two-person, one-person, organisation is covered, the focus is to ensure that all large employers…are covered, [as] the problem is primarily large, unincorporated bodies".[63]

58. The Parliamentary Under-Secretary of State at the Home Office responded to this point in questioning by stating:

    "You could prosecute them [unincorporated bodies] in terms of their health and safety liabilities as an employer, which is the most likely occasion on which it might arise, but actually I do not think you could give them a corporate responsibility if they are not a corporation…One of our difficulties is that we have to draw a line somewhere and the easiest way to draw a line is where there actually is a corporate entity rather than trying to turn something which is not an entity into an entity".[64]

59. However, a selection of named unincorporated bodies are already included within the scope of the offence by virtue of being listed in the Schedule to the draft Bill. In Canada the federal criminal law has recently been altered to impose criminal liability on a wider range of "organisations" than under the draft Bill. The Canadian definition includes "a public body, body corporate, society, company, firm, partnership, trade union or municipality".[65]

60. The Home Office has also argued that there does not appear to be a problem in practice with the inability to prosecute unincorporated bodies under the common law:

    "…[the issue is] whether the law should be extended to apply to a new range of organisations. We have not established that the inability to bring a prosecution against an unincorporated body itself for manslaughter, as opposed to any of its members individually, creates a problem in practice".[66]

61. The Health and Safety at Work etc. Act 1974 applies to both incorporated and unincorporated bodies. However, the Health and Safety Commission was unfortunately unable to give us any information about how many unincorporated associations have been prosecuted for health and safety offences.[67]

62. As the Government's proposals stand, it will be possible to prosecute corporations under the provisions in the draft Bill, and individuals running smaller unincorporated bodies will be able to be prosecuted under the common law individual offence of gross negligence manslaughter. However, a gap in the law will remain for large unincorporated bodies such as big partnerships of accounting and law firms. We are concerned that such major organisations will be outside the scope of the Bill and would recommend that the Government look at a way in which they could be brought within its scope. We urge the Government to provide us with statistics in order to support its claim that the inability to prosecute large unincorporated bodies does not cause problems in practice. We would be particularly interested in seeing statistics detailing how many large unincorporated bodies have been prosecuted and convicted of health and safety offences.

Schedule of government departments or other bodies

63. In addition to the Crown bodies that are already covered by the draft Bill by virtue of being corporations, the Schedule to the draft Bill sets out a list of government departments and other bodies to which the offence will also extend. The Government has stated that:

64. A number of witnesses thought that the Schedule was too limited in scope. The then Lord Chief Justice Woolf, for example, described it as "remarkably short".[69] Witnesses suggested adding bodies to the Schedule including Parliament,[70] the National Assembly for Wales,[71] the Crown Estates,[72] the Food Standards Agency[73] and the Health and Safety Executive.[74] The manufacturers' organisation, EEF, criticised the principle of providing an exhaustive list by means of a Schedule. It argued that a list should be for "indicative purposes only and not exhaustive, as there are regular reorganisations of such bodies and any exhaustive list would quickly become out of date".[75]

65. We welcome the certainty provided by an exhaustive list of government departments and other bodies and believe that the alternative, providing a statutory definition, could prove very difficult if not impossible to achieve. We agree with the Home Office that the draft Schedule needs "further work" to ensure that a number of other bodies, including a range of executive agencies, are included. It should also be reviewed by the Home Office on an ongoing basis, and formally every six months to ensure it is up to date. We think it might also be useful to extend clause 7 to ensure that bodies which are successors to bodies included in the Schedule are treated as "organisations" to which the offence applies.

66. We also point out that if the Government were to decide to amend the definition of "organisation" to include unincorporated bodies there might be no need to include a Schedule listing Government departments and other bodies as, depending on the way such a wider definition was worded, such bodies might already fall within the scope of the offence.

67. The draft Bill proposes to delegate to the Home Secretary the power to amend the Schedule by secondary legislation.[76] This power would be subject to the negative resolution procedure. It would accordingly be possible for the Home Secretary to take bodies into and out of the scope of the offence without an explicit decision by Parliament to approve such changes, subject only to the possibility that Parliament could annul any order made by him. This power has been criticised by some witnesses as excessive.[77] An alternative would be for the power to be subject to the affirmative procedure, under which Parliament would have to make an active decision to agree to an amendment to the Schedule proposed by the Secretary of State. We prefer this option. We recommend that the Home Secretary's delegated power to amend the Schedule should be subject to the affirmative resolution procedure rather than the negative resolution procedure.

Police forces

68. The proposed offence of corporate manslaughter will apply to police authorities, as they are incorporated bodies, but since police forces are not incorporated and are not listed in the Schedule, they would not be covered. However, in the introduction to the draft Bill, the Government stated:

69. The Association of Chief Police Officers agreed with the Government that the police, like the Crown, should not be exempt from prosecution where they "are in no different position to other employers and organisations".[79] We discuss the exemption for police operational activities in Chapter 10.

70. In oral evidence to the Sub-committees, the Parliamentary Under-Secretary for State at the Home Office, Fiona Mactaggart MP, confirmed that the Government would ensure police forces were included when the Bill was published but that the mechanism by which this would be done had not yet been finalised.[80]

71. It is appropriate that police forces as well as police authorities should be subject to the proposed new offence. We welcome the Government's assurances that the Bill when introduced will contain such provision.

53   Clause 5 Back

54   Law Commission, Legislating the Criminal code: Involuntary Manslaughter: Item 11 of the Sixth Programme of Law Reform: Criminal Law: Report No 237, HC (1995-96), para 8.55 Back

55   Home Office, Reforming the Law on Involuntary Manslaughter: The Government's Proposals, May 2000, para 3.5.1 Back

56   Home Office, Corporate Manslaughter: The Government's Draft Bill for Reform, Cm 6497, March 2005, para 41 Back

57   See for example Volume II, Ev 113 and 119, and Volume III, Q 71 [Mr Donnellan]. Back

58   Volume III, Q 494 Back

59   See, for example, Volume III, Q 277 [Mr Day] and Volume II, Ev 43 and 49. Back

60   For example, Volume II, Ev 6, 24, 84, 103, and 133. Back

61   Volume II, Ev 24 Back

62   See, for example, Volume III, Q 71 [Mr Donnellan]. Back

63   Volume III, Q 31 Back

64   Volume III, Q 571 and Q 573 (Fiona Mactaggart MP) Back

65   Criminal Code, Chapter C-46, Section 2 Back

66   Home Office, Corporate Manslaughter: The Government's Draft Bill for Reform, Cm 6497, March 2005, para 43 Back

67   Volume III, Q 535 [Mr Rees] Back

68   Draft Corporate Manslaughter Bill, para 39 Back

69   Volume II, Ev 109 Back

70   Volume II, Ev 8 and 24 Back

71   Volume II, Ev 31 Back

72   Volume II, Ev 59 Back

73   Volume II, Ev 79 Back

74   Volume II, Ev 79 Back

75   Volume II, Ev 230 Back

76   Clause 1(3) Back

77   Volume II, Ev 32 and 86 Back

78   Draft Corporate Manslaughter Bill, para 44 Back

79   Volume II, Ev 323 Back

80   Volume III, Q 574 Back

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