Select Committee on Home Affairs and Work and Pensions First Report


72. Clause 1(1)(a) of the draft Bill proposes that an offence would be committed where:

  • there is a death ;
  • this is caused by the way an organisation's activities are managed or organised by its senior managers;
  • the organisation owes a relevant duty of care to the deceased; AND
  • the management failure constitutes a gross breach of the relevant duty of care.

73. We consider each of the terms highlighted in the chapters below. This chapter considers the issue of death.

Workers and the public

74. The offence not only covers the deaths of workers but also include deaths of members of the public when they were owed a relevant duty of care by the organisation (see Chapter 5 for further discussion of a relevant duty of care). Passenger deaths in major transport accidents are therefore included. We note that this differs from the equivalent statutory provision in another jurisdiction - the Australian Capital Territory (see para 125) - which frames the offence entirely in terms of employers killing workers.[81] A number of organisations witnesses supported the Government's broader approach.[82] We welcome the Government's proposal that the offence not be limited only to the deaths of workers.

Serious injuries

75. The offence only applies in the case of death and not, for example, serious injuries caused by senior management failures. According to the Health and Safety Commission, while there were 220 fatal injuries to workers in 2004/05, 30,213 employees sustained major injuries.[83]

76. Some witnesses felt that the failure to extend the application of the new offence to cover serious injuries would diminish its deterrent effect.[84] The Occupational and Environmental Health Research Group at the University of Stirling argued that "it may be sending out a confusing message to say that we will criminalize serious offences that result in death and not those that don't".[85] The Communication Workers' Union pointed out that the corporate liability provisions in Canada apply to both manslaughter and injury.[86]

77. Other witnesses added that it was illogical that in the same circumstances a company could be liable for the offence if an incident resulted in death, and yet escape liability if the individual involved happened to be saved from death due to the quick actions of emergency services or sheer luck.[87] Rebecca Huxley-Binns and Michael Jefferson, from Nottingham and Sheffield Law Schools respectively, argued:

    "if two workers suffer from a splash of hot metal at a steel foundry occasioned by a gross breach by a senior manager as defined in the bill…then…it is absurd that if one died the company would be convicted of the proposed offence, but the company would not be liable for the other worker's serious injury - who was saved…only by the rapid intervention of a skilled paramedic".[88]

78. Representatives from the construction industry accepted in oral evidence to the Sub-committees that there was an argument for extending the offence.[89] Although the Chairman of the Construction Confederation warned against trying to do too much in one Bill, he appeared to support the eventual extension of the offence:

    "we are big believers in not being able to run before you can walk…, but surely in time it must be extended".[90]

79. However, other witnesses felt that incidents other than death were best handled by existing health and safety legislation.[91] We note that the Canadian Criminal Code also has an individual offence of causing injury by criminal negligence, whereas in England and Wales only manslaughter (and deaths caused by dangerous driving) are based on a negligence standard. Thus extending this draft Bill to injuries would be to create a corporate offence where there is no equivalent individual offence, which is arguably inequitable.

80. The Scottish Expert Group on Culpable Homicide, set up to report to Scottish ministers on the law on corporate liability for culpable homicide in Scotland, was divided on the issue, with some members feeling that any offence introduced should be extended to cover serious injuries, but others considering that this "could lead to dilution of the corporate killing offence and could potentially over-stretch investigation and enforcement resources".[92] (The findings of the Scottish Expert Group are discussed in Chapter 11).

81. We believe that organisations should be punished where their failings cause serious injury but are not convinced that gross negligence resulting in serious injury needs to be brought within the scope of the draft Bill. If the draft Bill was amended in this way, it might lose its current clear focus on manslaughter, and the ensuing controversy and drafting difficulties might further delay the introduction of the actual Bill. We would, however, urge the Government to consider the possibility of using the Corporate Manslaughter Act as a template for introducing further criminal offences, such as an offence of corporate grievous bodily harm, in due course.

Fatal damage to health

82. A number of witnesses were concerned that the offence, as currently proposed, would only capture deaths which are due to one-off incidents.[93] The Royal Society for the Prevention of Accidents, for example, believed that if the draft Bill were enacted in its present form, it would be very difficult to show causation through management failure where fatal damage to health was caused by sustained exposure to harmful agents or by the contraction of diseases with long latency.[94]

83. However, other witnesses argued that any difficulties in achieving successful prosecutions in such cases would not arise from the drafting of the legislation, but from a lack of resources for investigating and gathering evidence. The Occupational and Environmental Health Research Group at the University of Stirling, for example, submitted:

    "In the UK at the moment there remains a woeful lack of enforcement for offences that cause deaths and diseases following exposure to harmful substances (such as the exposure of workers to asbestos or chemicals). Across the UK, only 1% of deaths resulting from occupational exposures, as opposed to sudden deaths from injuries, are currently prosecuted as offences. Any new law on corporate killing will by definition, cover many of those deaths caused by exposure to harmful substances. This is not so much a substantive issue of law, but an issue relating to the gathering of evidence and of the rules and procedures used in investigations. The government should immediately review those aspects of evidence gathering and investigation used by the police and the HSE following deaths related to occupational health causes. Those aspects of the process are also resource intensive and we would urge the government to provide resources immediately to reverse the unacceptable shortfall in occupational health related prosecutions".[95]

84. We are satisfied that the Bill as currently drafted covers long-term fatal damage to health as well as deaths caused by immediate injury. However, we would urge the Government to ensure that sufficient resources are available and appropriate procedures in place to make certain that in practice prosecutions are brought for deaths related to occupational health causes.

Corporate "killing"

85. Some witnesses also criticised the title of the proposed offence. Rebecca Huxley-Binns and Michael Jefferson, of Nottingham and Sheffield Law Schools respectively, for example, argued that manslaughter was an "outdated" term "which should not be used in a modern system of law".[96]

86. The Law Commission's proposals and the Home Office's 2000 consultation paper used the term "corporate killing" rather than "corporate manslaughter". The former expression stemmed from the Law Commission's proposals to replace the law on involuntary manslaughter in general with crimes of "reckless killing" and "killing by gross carelessness" (see para 17).

87. JUSTICE pointed out that following the Law Commission and Home Office's forthcoming review of the law of murder, the scope of the common law of "involuntary manslaughter" might change and the word "manslaughter" might no longer even be used.[97] However, on balance, they believed that the introduction of a Corporate Manslaughter Bill should not wait for the review of the law of murder, as reform was not certain and, if undertaken, was likely to be a very lengthy process.[98]

88. We are satisfied that the title of the offence should be "Corporate Manslaughter" not "Corporate Killing".

81   Crimes Act 1900 (amended by Australian Capital Territory Crimes (Industrial Manslaughter) Amendment Act 2003) Back

82   Volume II, Ev 17, 30 and 298 Back

83   National Statistics and Health and Safety Commission, Health and safety statistics 2004/05, p 5-6 Back

84   Volume III, Q 27 [Mr Griffiths] Back

85   Volume II, Ev 11 Back

86   Volume II, Ev 257 Back

87   Volume II, Ev 11, 55, 263 and 255 Back

88   Volume II, Ev 55 Back

89   Volume III, Q 211 [Mr Smith] and Q 222 [Mr Commins] Back

90   Volume III, Q 222 Back

91   Volume II, Ev 261 and Volume III, Q 519 [Lord Justice Judge] Back

92   Scottish Executive, Corporate Homicide: Expert Group Report, November 2005, p 16 Back

93   Volume II, Ev 67  Back

94   Volume II, Ev 44 Back

95   Volume II, Ev 11 Back

96   Volume II, Ev 55-56 Back

97   Volume II, Ev 310-311 Back

98   Volume II, Ev 311 Back

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