House of Commons - Home Affairs and Work and Pensions

Select Committee on Home Affairs and Work and Pensions First Report

8 GROSS BREACH

170. We have already stated that we believe it is unnecessary to limit the new offence to situations where a duty of care exists. Nevertheless, in this section we consider the draft Bill's proposals in relation to a gross breach of such a duty. We believe there are some valuable ideas contained in these provisions which could be employed without dependence on a concept of duty of care.

171. Under the Government's proposals, not all breaches of a relevant duty of care owed by an organisation would be sufficient to give rise to a successful prosecution for corporate manslaughter. In its introduction to the draft Bill, the Home Office explained:

"the new offence is targeted at the most serious management failings that warrant the application of a serious criminal offence…The offence is to be reserved for cases of gross negligence, where this sort of criminal sanction is appropriate. The new offence will therefore require the same sort of high threshold that the law of gross negligence manslaughter currently requires - in other words a gross failure that causes death."[203]

172. We appreciate the reason for limiting the application of the offence to gross breaches, if utilising a concept of duty of care. This targets this serious criminal offence at the gravest management failures.

"Falling far below"

173. The draft Bill provides that there would only be a gross breach "if the management failure in question "constitutes conduct falling far below what can reasonably be expected of the organisation in the circumstances".[204] The Government received comments in its 2000 consultation that the term "falling far below" was not, in itself, sufficiently clear. It has sought to address these concerns in the draft Bill. Clause 3 contains a list of factors which the jury must consider in deciding whether or not the conduct of an organisation has "fallen far below" what could reasonably have been expected. These are:

"…whether the evidence shows that the organisation has failed to comply with any relevant health and safety legislation and guidance, and if so -

(a) how serious was that failure to comply;

(b) whether or not senior managers of the organisation -

(i) knew, or ought to have known, that the organisation was failing to comply with the legislation or guidance;

(ii) were aware, or ought to have been aware, of the risk of death or serious harm posed by the failure to comply;

205

The criteria are not exclusive. Clause 3(4) adds that:

"Subsection (2) does not prevent the jury from having regard to any other matters they consider relevant to the question."

174. The Law Society and the Association of Principal Fire Officers (APFO) believed that, even with the addition of relevant factors for a jury to consider, the "falling far below" test remained unclear. They preferred the Adomako test, which defines a gross breach as something so grossly negligent as to be criminal. This test has been criticised for being circular, but APFO argued that "[T]here is at least some case law on what constitutes "criminal" behaviour and in our view juries are more likely to be able to assess whether behaviour is "criminal" than whether it falls "far below" a standard which they themselves have to establish".[206] However, a majority of those who submitted evidence on this issue preferred the "falling far below" test.[207] This standard was originally suggested by the Law Commission in 1996.[208] Many pointed out that it is also well established as the test used for the offence of causing death by dangerous driving.[209]

Relevant factors

175. The general proposal to include a list of relevant factors for the jury to consider attracted more comment. In particular several witnesses to our inquiry read the criteria in clause 3 as conditions that had to be satisfied in order for an organisation to be liable for the offence.[210] As we read the Bill, these factors are not conditions precedent to a conviction but simply factors intended to assist a jury's consideration.

176. Others were concerned that the inclusion of relevant factors could lead to matters which are not included in them to be overlooked.[211] Ms Sally Ireland from JUSTICE, for example, argued:

212

177. Another criticism was that clause 3(4) could mean that jurors would take into account subjective or unreliable factors.[213] One suggestion to counter this was that the list of indicative factors should be exhaustive.[214] The Engineering Construction Industry Association proposed that clause 3(4) be amended to read, "having due regard to paragraph 2, the jury may also have regard to any other factors they consider relevant to the question".[215] However, we feel that this criticism of the current drafting of clause 3(4) unfairly assesses the capabilities of most juries. As we were reminded in one of our evidence sessions:

216

178. Many other witnesses welcomed the clarity provided by the list of factors to the test of "falling far below". For example, the then Lord Chief Justice submitted that the clause was "a welcome and imaginative piece of drafting".[217] Some even suggested that there should be a list of indicative factors that would indicate that the breach of the relevant duty of care was not gross.[218]

179. We welcome the general proposal to include in the draft Bill an indicative, not exhaustive, list of factors which jurors are required to consider when determining whether an organisation's conduct is a gross breach. However, given the levels of apparent confusion, we would urge the Government to provide a clear explanation of how such a list of factors would be used in court.

180. We discuss the drafting of these particular factors below.

HEALTH AND SAFETY LEGISLATION AND GUIDANCE

181. Some witnesses raised concerns about the reference to health and safety legislation in the list of factors for the jury to consider.[219] The Federation of Master Builders believed that it was unfair to proliferate health and safety legislation and then use non-compliance with these regulations as evidence to convict a company.[220]

182. There was significant concern about the reference to health and safety guidance in addition to legislation. Some argued that guidance was not designed to have legal force and should not be used to establish criminal liability.[221] Witnesses questioned whether the reference to guidance would include any document or piece of advice or whether it would only refer to Approved Codes of Practice or other more general guidance.[222]

183. However, others felt that it was appropriate to refer to guidance and that such concerns were misplaced. Mr Lawrence Waterman from the Institution of Occupational Safety and Health, for example, argued:

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184. A number of local authorities and other groups believed that the reference to guidance would discourage local authorities from taking innovative approaches.[224]The Royal Borough of Kensington and Chelsea, for example, wrote:

"The specific example in our case… relates to our recent improvements to Kensington High Street. In this case we undertook a radically new design approach and this involved disregarding Department for Transport design prescriptions whilst at the same time closely monitoring the consequences of deviation from DfT design, for personal injury accidents. To date the accident record has in fact shown an improvement. Furthermore the new improvements have received accolades and awards.

225

185. We note these concerns but believe they are based on a misunderstanding of the draft proposals. The close monitoring described would fall under the category of another relevant factor for the jury to consider, as they could do under section 3(4), and would therefore make it highly unlikely that a successful prosecution could be mounted in respect of such a case. It is important, however, for councils and other organisations to be liable when divergence from guidance arises from gross negligence and not from carefully monitored innovation.

186. Some witnesses, by contrast, argued that the factor was not wide enough and that the jury should consider compliance with any relevant legislation, not just any relevant health and safety legislation.[226] The Working Time Directive[227] and the Food Safety Act[228] were cited as examples.

187. We welcome the proposal in clause 3 of the draft Bill that the jury be required to have regard to whether the organisation has failed to comply with relevant health and safety legislation and guidance and that they be required to consider how serious was the failure to comply. This is an appropriate factor for juries to consider when determining whether there has been a gross management failure. We further recommend that after "legislation," the phrase "or any relevant legislation" be inserted in order to widen the scope of this factor.

REFERENCE TO SENIOR MANAGERS

188. Some witnesses felt that the reference to individual senior managers in the test for gross breach raised the same problems as in the senior manager test.[229] They also believed it raised practical problems. For example, Ms Sally Ireland from JUSTICE argued:

230

189. Others argued that the reference to what senior managers knew or ought to have known would be very difficult to establish as under the current law there is no legal obligation on directors to ensure that their organisation is complying with health and safety law (see "Directors' duties" in Chapter 13).[231]

190. Lord Justice Judge and the London Criminal Courts Solicitors' Association also felt that the proposal in clause 3(2)(b)(ii), which refers to awareness by senior managers of the risk of "death or serious harm", should be brought into line with the current law of gross negligence manslaughter under which there has to be gross negligence as to death only.[232]

191. We recommend that juries should not be required to consider a factor which makes reference to senior managers in an organisation. However, if this factor is retained, we believe it should refer to the "risk of death" only and not the "risk of death or serious harm" as this would be inconsistent with the current law of gross negligence manslaughter.

PROFIT FROM FAILURE

192. Clause 3(2)(b)(iii), which requires a jury to consider whether senior managers of the organisation sought to cause the organisation to profit from that failure, attracted particular comment during our inquiry. Many witnesses pointed out that this factor would be difficult to apply to public bodies.[233] Some called for the term "profit" to be replaced by "benefit".[234] The Parliamentary Under-Secretary of State at the Home Office, Fiona Mactaggart MP, welcomed this suggestion.[235] However, Sir Igor Judge argued that "You could use both almost interchangeably".[236] The Centre for Corporate Accountability suggested that the jury should instead be required to consider "the reason for the failure".[237]

193. Other evidence submitted to us called for this factor to be removed from the gross breach factors altogether.[238] The Simon Jones Memorial Campaign argued, "many of the cases that have reached public notice indicate that the main problem is a lack of care for the welfare of others".[239] Witnesses argued that profit from failure might only be relevant to the penalty imposed.[240] In oral evidence the Parliamentary Under-Secretary appeared to agree with this view, stating:

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194. We are not convinced that the question of whether senior managers sought to cause the organisation to profit or benefit from the failure is relevant to determining whether there has been a gross breach. We therefore recommend that Clause 3(2)(b)(iii) be deleted. This factor should, however, be considered in sentencing.

203 Draft Corporate Manslaughter Bill, para 32 Back

204 Clause 3(1) Back

205 Clause 3(2) Back

206 Volume II, Ev 123-4 Back

207 For example, Volume II, Ev 261 Back

208 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) 171, para 8.34 Back

209 Road Traffic Act 1991 (c.40) Section 2(A)1(a). See for example, Volume II, Ev 169 and 239. Back

210 Volume II, Ev 17, 30, 41, 61, 82, 91, 124, 132 and 301 Back

211 Volume II, Ev 14, 46 and 67 Back

212 Volume III, Q 483 Back

213 Volume II, Ev 3, 41 and 77 Back

214 Volume II, Ev 41 Back