Select Committee on Home Affairs and Work and Pensions First Report

10  CROWN IMMUNITY

Removal of Crown immunity

200. The legal doctrine of Crown immunity holds that unless Parliament intends otherwise, onerous legislation does not apply to the Crown.[242] The Crown for this purpose is not limited to the monarch personally, but extends to all bodies and persons acting as servants or agents of the Crown, whether in its private or public capacity, including all elements of the Government, from Ministers of the Crown downwards. Government departments, civil servants, members of the armed forces and other public bodies or persons are, therefore, included within the scope of the immunity.

201. Clause 7 of the draft Bill expressly removes Crown immunity, making it explicit that the offence would apply to the Crown. This marks a change to the Government's 2000 Consultation Paper which proposed the retention of Crown immunity with a separate declaratory remedy for Crown bodies.[243] The introduction to the draft Bill states:

"The Government recognises the need for it to be clearly accountable where management failings on its part lead to death. There will therefore be no general Crown immunity providing exemption from prosecution".[244]

It explains that "the Crown should not be exempt where it is in no different position to other employers or organisations". In 2000, the Government also committed itself to removing Crown immunity from statutory health and safety enforcement when Parliamentary time allowed.[245]

202. The proposal to remove Crown immunity has been widely welcomed.[246] Witnesses argued that life should be accorded the same degree of legal protection, and the bereaved the same degree of justice, regardless of whether a Crown or non-Crown body has caused a death[247] and that it is desirable, wherever possible, to enhance the accountability of public authorities in relation to deaths caused by gross negligence.[248] Other reasons given for welcoming the proposal to remove Crown immunity included the following:

• that a manslaughter conviction would produce benefits for the public in the form of a thorough review of procedures in the relevant authority;[249]
• that there should be a level playing field between the public and private sector;[250]
• and that failure to apply the offence to the Crown would constitute a breach of human rights law.[251]

203. JUSTICE raised the concern that public confidence in a public authority and the services it provides could be severely undermined by the stigma of a manslaughter conviction.[252] However, it did not believe this was a reason not to extend the Bill to Crown bodies:

"It is a slightly anomalous position for a public authority to subsist with a very serious criminal conviction against it. That applies all the more where it is a law enforcement or prosecution agency or a police force but to an extent, although it is a concern, we accept that it is perhaps more theoretical than practical and we would not use it as an argument to avoid extending the Bill to police forces because I think there are more important considerations in favour of its extension".[253]

204. We welcome the proposal to remove Crown immunity for the offence of corporate manslaughter. However, we consider that the force of this historic development is substantially weakened by some of the broad exemptions included in the draft Bill. We discuss these further in the section below.

205. We also note that five years have passed since the Government committed itself to removing Crown immunity for health and safety offences. We urge the Government to legislate on this issue as soon as possible.

Crown immunity "by the back door"?

206. A number of witnesses to our inquiry have argued that, in practice, Crown immunity has been retained in many respects because the draft Bill includes exemptions from the offence that will apply primarily to Crown bodies.[254] These exemptions are:

• exclusively public functions
• the public policy decisions of public authorities
• military activities
• services and goods "provided" by an organisation

207. We discuss these exemptions in detail below.

Exclusively public functions

1.  Lack of clarity

208. Clause 4 of the draft Bill expressly provides for two situations in which no relevant duty of care would exist. The first situation is the exercise of an "exclusively public function". This phrase is exhaustively defined in the Bill as

"a function that falls within the prerogative of the Crown or is, by its nature, exercisable only with authority conferred -

(a) by the exercise of that prerogative, or

(b) by or under an enactment".[255]

209. We were unclear about exactly which situations would fall under this definition. This uncertainty was shared by witnesses to our inquiry.[256] For example, the London Criminal Courts Solicitors' Association were unsure whether police operational activities would fall under this exemption (although these activities would already be exempt as activities "provided", see "Services "provided" by the State" below).

210. A report by the Public Administration Select Committee suggests it is very difficult to determine what functions fall within the "prerogative of the Crown".[257] This view was shared by Professor Dawn Oliver, Professor of Constitutional Law at the Faculty of Laws, University College London, who submitted that there are different views in legal circles as to what functions would fall within this expression. On one narrow interpretation, the prerogative only covers the "special pre-eminence" of the Crown over and above that of private individuals, which would cover situations such as the making of treaties, the disposition of the armed forces, the granting of mercy and pardon, the dissolution of Parliament and, perhaps most importantly in this context, matters relating to national security like arming the police. A broad interpretation of the prerogative would, on the other hand, include all the powers of the Crown which are not expressly provided by statute, including, for example, the power to make contracts and to change civil service terms of employment.[258]

211. The scope of the functions encapsulated within the second limb of the definition of "an exclusively public function" is also unclear. This focuses on the difficult legal question of whether a function would "by its nature" only be exercisable with special legal authority. We heard evidence that while some examples would clearly require such authority, such as matters relating to the detention of prisoners, and others clearly would not, such as providing gas masks to members of the public, there was likely to be a substantial grey area between in which it is unclear whether a function does or does not, by its nature, require such authority.

212. Furthermore, Professor Oliver believed that an exclusively public function "exercisable only with authority conferred by or under an enactment" might in fact cover everything that statutory bodies did. She added that:

"local authorities owe all their powers to enactments and it would seem to follow that local authorities and other statutory bodies are immune under the bill as it places all activities exercised under statutory authority in the category of 'exclusive public function'. I think this must be an error".[259]

213. The definition of "exclusively public function" is unsatisfactory. If the Government does decide to retain this exemption, the definition would need further work to ensure that there is clarity about the situations in which it would apply.

SHOULD EXCLUSIVELY PUBLIC FUNCTIONS BE EXEMPT FROM THE OFFENCE?

214. The Government has submitted that areas which fall within the scope of "exclusively public functions" are more appropriately subject to wider forms of public and democratic accountability than the courts.[260] In response, the Transport and General Workers Union remarked that the exclusively public function exemption also applies to private bodies, which would not be subject to other forms of accountability.[261]

215. JUSTICE argued that:

"To create such an exception is to state that in those circumstances, gross negligence causing death on the part of a corporation is lawful under the criminal law. We do not believe that gross negligence causing death can ever be justified, even in an emergency". [262]

216. The London Criminal Courts Solicitors' Association criticised the exemptions for being too broad and stated that despite the removal of Crown immunity, many Crown bodies would not be properly held to account for deaths arising out of their management failures.[263] Other witnesses also expressed scepticism about the effectiveness of alternative accountability mechanisms:

"[E]ven 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". [264]

217. We are very concerned by the exemption for exclusively public functions and are not convinced by the Government's arguments for including in the Bill a blanket exemption for deaths resulting from the exercise of public functions. We do not consider that there should be a general exception under this heading since bodies exercising such public functions will still have to satisfy the high threshold of gross breach before a prosecution can take place, namely that the failure must be one that "falls far below what could be reasonably expected." We do not consider that a private or a Crown body should be immune from prosecution where it did not meet this standard and as a result, a death occurred.

DEATHS IN PRISONS AND POLICE CUSTODY

218. Given the uncertainties surrounding exactly what functions would fall under this exemption, we have decided to consider an area which the Government has expressly stated would be covered by this exemption: "functions relating to the custody of prisoners".[265]

219. The Government has argued that it is appropriate to exempt such functions because:

"The personal liability of individuals undertaking such functions will remain, as is proper, under the criminal law. However, organisational failings in these areas are more appropriately matters for wider forms of public and democratic accountability. Deaths in prisons are …already subject to rigorous independent investigations through public inquest before juries and through independent reports capable of ranging widely over management issue and punishable post inquest".[266]

220. The Association of Chief Police Officers welcomed the exemption for deaths in police custody. It argued:

"we have civil liability and I believe that the Independent Police Complaints Commission provides that level of scrutiny, independence and confidence in the service… we are not complacent about deaths in police custody. We are absolutely committed as a service to try to reduce the opportunity for these to occur…We are dealing with vulnerable people; people who come into our custody are vulnerable whether through mental illness, drink or drugs, and again I believe that the circumstances you are talking about there in terms of the coroner would fit very well with gross negligence manslaughter. That may be an individual act or an individual decision or poor practice that leads to a chain of events leading to someone's untimely death".[267]

221. However, the exemption for prisoners in prison and police custody also attracted a significant amount of criticism. Ms Sally Ireland from JUSTICE, for example, described it as possibly "the worst thing about the Bill".[268] Many organisations were concerned that prisoners are in a particularly vulnerable position and that since they are under the control of the state, it should, therefore, take particular care to protect their lives.[269] For example, Mr Geoff Dobson from the Prison Reform Trust told the Sub-committees:

"It seems to us to be almost beyond belief that prisoners who are in a very powerless situation in an institution should be exempt".[270]

222. The Police Federation of England and Wales disagreed with the exemption for deaths in police custody, arguing that 'all aspects of policing should have the capability' of being liable for the offence.[271]

223. The Prison Reform Trust submitted that prosecutions for corporate manslaughter following a death in prison would not necessarily conflict with existing accountability mechanisms:

"The exemption of the critical functions involving duty of care to prisoners, on the basis that they are subject to separate enquiries, appears to arise from a confusion of means and ends. If investigations suggest that "management failure" did, in all probability, bring about the death of an inmate, then it is difficult to understand why the offence should be less relevant than in any other sphere of service delivery. The various tests set out under 'Management failure by senior managers' and 'Gross breach and statutory criteria' would still apply, providing a transparent framework, with necessary safeguards".[272]

224. The Centre for Corporate Accountability pointed out that deaths in police custody can at least be investigated by the Independent Police Complaints Commission who can then prosecute individuals for manslaughter or for health and safety offences, while deaths in prisons are not subject to investigations that can result in criminal offences.[273] JUSTICE submitted that the exemption in the Bill might therefore breach human rights law:

"The UN Human Rights Committee, in relation to a death in custody, was of the view that a state party to the International Covenant on Civil and Political Rights was "under an obligation to take effective steps…to bring to justice any persons found to be responsible for his death".[274]

225. It was also pointed out to us that private companies running prisons or custody suites would also be exempt for matters relating to the custody of prisoners. JUSTICE questioned whether existing accountability mechanisms applied effectively to such companies:

"In relation to private prisons, I think it is open to question what kind of accountability there really is at the moment. You may have read about recent events whereby some of the Home Office team were not allowed into a secure training centre to investigate the use of restraints. They underline this".[275]

226. In 2004, the Joint Committee on Human Rights (JCHR) examined the issue of "Deaths in Custody".[276] It found that during a period from 1999 to 2003 "a total of 434 prisoners in England and Wales took their own lives, equivalent to one every four day".[277] The report stressed the importance of a good management in preventing such deaths:

"At the level of the day to day operation of prisons and other places of detention, the culture of a prison or secure hospital, the extent to which people are treated with dignity, the quality of relationships between prisoners and staff, are all critically important. This is an aspect of suicide prevention which in the healthcare setting has been termed "relational security." It is also reflected in the standard against which the Chief Inspector of Prisons inspects, of a "healthy prison", which meets standards of decency, safety, and respect".[278]

227. We believe that there is no principled justification for excluding deaths in prisons or police custody from the ambit of the offence. The existence of other accountability mechanisms should not exclude the possibility of a prosecution for corporate manslaughter. Indeed public confidence in such mechanisms might suffer were it to do so. We are particularly concerned that private companies running prisons or custody suites, which are arguably less accountable at present, would be exempt. Accordingly, we recommend that, where deaths in prisons and police custody occur, they should be properly investigated and the relevant bodies held accountable before the courts where appropriate for an offence of corporate manslaughter.

Public policy decisions of public authorities

228. Clause 4 of the draft Bill also provides an exemption for public authorities making decisions as to matters of public policy. The meaning of "public authority" is defined in the draft Bill as having the same meaning as in section 6 of the Human Rights Act 1998.[279] Private bodies also fall within the definition of public authority if their functions are functions of a public nature. "Matters of public policy" are not defined in the draft Bill although it does state that they include "in particular the allocation of public resources or the weighing of competing public interest".[280]

229. The Home Office stated that the proposal makes explicit the position under the current law of negligence "that public authorities will rarely owe a duty of care where decisions involve weighing competing public interests dictated by financial, economic, social or political factors, which the courts are not in a position to reach a view on".[281] The Institute of Directors argued that the Government was justified in taking this approach:

"It is inevitable that in the course of making decisions about allocation of scarce resources that trade-offs have to be made across the activity of an organisation. It would be wholly unrealistic to expect decision-makers to disproportionately allocate resources to one area of activity, without taking account of other policy aims and objectives".[282]

230. However, a survey by Cameron McKenna Solicitors indicated that 97.2% of their witnesses took the opposite view and believed that public bodies should be accountable in the same way that the private sector would be. The firm submitted:

"there is no reason in principle why any public body should be in a different position when it comes to consideration of its duties in terms of the offence of corporate manslaughter".[283]

231. The Ergonomics Society questioned why the allocation of resources should provide an exemption for public bodies:

"Such issues of resource allocation and other matters are not unusual in the management of safety in commercial and industrial contexts, and so we cannot accept this as an argument for excluding 'matters of public policy'."[284]

232. The Centre for Corporate Accountability also argued against the public policy exemption.[285] Its supplementary memorandum to the Sub-committees raised a tragic example of a suicide committed in a mental health hospital which might fall under this exemption. It submitted:

"One of the main issues in this particular case relates to whether the failure to remove a particular ligature point in a room where she committed suicide (despite repeated requests from NHS Estates and others that ligature points should be removed) could be considered grossly negligent. The question that we are concerned about is whether this or similar set of circumstances might result, under the proposed public policy exemption, in the public body arguing successfully that this was a matter of public body decision making. What would be the situation if the public body, for example, stated that they did not proceed with removing ligature points as they had to balance the expense of doing this with other costs and therefore it was a matter of "the allocation of public resources"? What would have happened if for example the NHS estates had itself not provided the advice because it was the outcome of the 'allocation of public resources or the weighing of competing public interests' - although there was clear evidence that they knew about the serious risks of not removing ligature points and had been advised to instruct Health Authorities to remove them?"[286]

233. We believe that there should be an exemption for those making overarching public policy decisions, where there may be very difficult decisions about allocation of resources. Using the example given to us by the Centre for Corporate Accountability, it might indeed be the case that the Department of Health has to weigh the safety benefits of removing all ligature points from all NHS estates against the cost of directing money away from other possible initiatives, such as making a new cancer drug available. However, we do not believe it should be open to a mental health hospital to argue that it had ignored the direction of NHS estates because it had to make a cost benefit analysis which was a matter of public policy. At this level we believe the hospital should be considered to be implementing public policy and not deciding it. We believe that there should be an exemption to the offence for public policy decisions. However, we believe that this should only apply at a high level of public policy decision-making.

Military activities

234. Although the Ministry of Defence is an organisation for the purposes of the draft Bill, clause 10 explicitly states that certain activities of the armed forces fall outside the scope of the offence. The exempt activities are defined as:

"(a) activities carried on by members of the armed forces in the course of or in preparation for, or directly in support of, any combat operations; [and] (b) the planning of any such operations".[287]

235. The "armed forces" is defined as "any naval, military or air forces of the Crown raised under the law of the United Kingdom".[288] "Combat operations" is broadly defined to include:

"(a) operations, including peacekeeping operations and operations for dealing with terrorism or civil unrest, in which members of the armed forces come under attack or face threat of attack or armed resistance; and (b) training that is designed to simulate operations of a kind mentioned in paragraph (a)".[289]

236. The Government has justified this exemption as follows:

"It is important that by applying criminal proceedings for this sort of offence to the Crown, we do not adversely affect matters of national security or the defence capability… It is also important that the ability of the Armed Forces to carry out, and train for, combat and other warlike operations is not undermined. The law already recognises that the public interest is best served by the Armed Forces being immune from legal action arising out of combat and other similar situations and from preparation for these, and this is recognised in the offence. We also consider it important that the effectiveness of training in conditions that simulate combat and similar circumstances should not be undermined and these too are not covered by the offence".[290]

237. A number of witnesses agreed that the exemption in the draft Bill for the armed forces was justified.[291] However, some felt the exemption was outdated and pointed out that it had been removed in other contexts, such as sex discrimination law[292] and some health and safety law cases.[293] Others argued that the military should be properly held to account for deaths arising from their management failures,[294] and that if it were not, the UK might be in breach of human rights law.[295]

238. Other witnesses considered that an exemption was appropriate in principle but that the draft Bill had drawn it too widely. The Bar Council submitted:

"Preparation for any combat operation may well include elements of basic training, rather than specialised activities directly in support of combat operations….The removal of the words 'or in preparation for' in the clause would not alter the effect of [the] clause in respect of specialised preparation for the combat operations, because training for such operations is covered by clause [10(3)](b). It would, however, remove the exemption from the level of basic training and other activities peripheral to the training for combat operations. This may go some way towards allaying the public concern particularly in respect of the responsibility for the implementation of standards of safety of young recruits entering the armed forces".[296]

239. Although we recognise the unique position of the armed forces, we consider that the exemption is drawn too widely. We are concerned that "preparation" for combat operations would encompass routine training and believe that such a wide exemption cannot be justified. We therefore recommend that the words "in preparation for" be removed from clause 10(1)(a) so that the exemption is restricted to combat operations and acts directly related to such operations.

Services "provided" by the state

240. In Chapter 5, we discussed the Government's use of the term "supply" in the list of relevant duty of care categories in order to expressly exclude certain services "provided" by public bodies. There we recommended that any exemptions in the draft Bill should be made explicit, as with the three exemptions already discussed above. One example of a service that would fall into the category of being "provided" and not "supplied" would be police and fire service operations. (As discussed in para 213, there is uncertainty whether these might also fall under the term "exclusively public function".) We discuss this particular exemption below.

THE OPERATIONAL ACTIVITIES OF THE POLICE AND FIRE SERVICES

241. The Association of Chief Police Officers (ACPO) and the Association of Principal Fire Officers (APFO) agreed with the Government that their operational duties should be exempt, arguing that their operational environment placed them in a unique position compared to other public bodies. Both organisations pointed out that their operations entailed a high degree of risk. ACPO wrote: "Policing is often a very dangerous business".[297] APFO gave an example of a case in Greater Manchester where the fire service was called:

"The fire tender had been called to a lake where a young person was in the lake swimming with his friends and went under the water…The friends pointed out where they had last seen their young friend. The fire officer tied a rope around his waist and swam out while his colleagues, on the side of the lake, held on to the rope. The fire officer swam around and dived under the water looking for this young person but could not find him. He then asked the crew to pull him back and they pulled him back but the line had sunk just beneath the water and it snagged on a branch, unbeknown to him and the crew. The result was he drowned …This is the operational environmental in which the fire and rescue service operates".[298]

242. Both organisations expressed concern that extending the offence to their operational activities could lead to a risk averse service with possible dangerous consequences for members of the public. APFO, for example, added:

"The concern of the fire and rescue services is that there will be a risk-averse approach to these types of incidents. What you will instruct, in Manchester for example, is when you arrive at the side of the lake you do not enter that water until a boat arrives and so the crew will be formally instructed by their senior management not to do that until a boat arrives".[299]

243. However, the Centre for Corporate Accountability was critical of the arguments given for this exemption:

"We would like to point out a serious contradiction in ACPO's response. It says that it is happy to comply with health and safety law - and there must therefore be an assumption that health and safety law compliance does not cause any particular problems of risk averseness. ACPO also notes that individually and organisationally the police are willing to be held account for health and safety offences. If this is the case, then it is difficult to see what are the particular problems that the police would face in relation to the new offence. If they seek to comply with health and safety law - then they have nothing to fear from the new offence and it is difficult to see what additional risk averseness would exist. Senior police officers would simply have to ensure that their force complies with existing health and safety law - as presumably these senior officers seek to do now".[300]

244. The Police Federation of England and Wales took a different view to ACPO. It believed that all aspects of policing should be capable of being liable to the offence. In oral evidence Mrs Jan Berry, Chairman of the organisation, gave a strong argument by analogy that overall an extension to operational activities would have a positive impact if it was accompanied by appropriate education:

"it is not to do with death but I think it demonstrates the point. Stop and search is something which has attracted a fair amount of attention and I do not think there is any doubt that a lot of police officers stopped using stop and search in circumstances where it may have been more appropriate because of the fear of action being taken against them. There was some work undertaken in one part of the country where they actively trained police officers in stop and search powers. Following that piece of training the powers were used far more effectively than they ever had been previously and therefore the quality of the searches was much better. The arrests that came from them was much better. If you are a learning organisation, if you make sure that your training is right and use the operational experience to good effect later and you train people properly, risk aversion does not have to be taken into account".[301]

245. We are concerned by the possibility that the inclusion of police and fire operational activities might lead to a culture of risk averseness. However, this could be countered by effective education. We believe that the Bill should be drafted so that emergency services' operational activities are only liable for the offence in cases of the gravest management failings.

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242   On the basis that legislation is made by the Sovereign in Parliament for the regulation of Her subjects, not Herself. Back

243   Home Office, Reforming the Law on Involuntary Manslaughter: The Government's Proposals, May 2000, para 3.2.8 Back

244   Home Office, Corporate Manslaughter: The Government's Draft Bill for Reform, Cm 6497, March 2005, para 38 Back

245   Revitalising Health and Safety: Strategy Statement, June 2000, Action Point 15 Back

246   See for example Volume II, Ev 9, 18, 24, 31 and 133  Back

247   Volume II, Ev 24 and 62  Back

248   Volume II, Ev 312 Back

249   Volume II, Ev 312 Back

250   Volume II, Ev 90 Back

251   Volume II, Ev 24 and 313 (Articles 2, 13 and 14 of the European Convention on Human Rights) Back

252   Volume II, Ev 312 Back

253   Volume III, Q 454 [Ms Ireland] Back

254   Volume II, Ev 32 and 164 Back

255   Clause 4(1) and (4) Back

256   Volume II, Ev 141 Back

257   Volume II, Ev 186 and Public Administration Select Committee, Fourth Report of 2003-04, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, HC 422 Back

258   Volume II, Ev 186 Back

259   Volume II, Ev 187 Back

260   Home Office, Corporate Manslaughter; The Government's Draft Bill for Reform, Cm 6497, March 2005, para 6 Back

261   Volume II, Ev 24. See also Volume II, Ev 103. Back

262   Volume II, Ev 313 Back

263   Volume II, Ev 142 Back

264   Volume III, Q 113 [Mr Caplan] Back

265   Home Office, Corporate Manslaughter: The Government's Draft Bill for Reform, Cm 6497, March 2005, para 22 Back

266   Ibid Back

267   Volume III, Q 424-425 [Mr Stoddart] Back

268   Volume III, Q 464 [Ms Ireland] Back

269   Volume II, Ev 84 Back

270   Volume III, Q 464 Back

271   Volume III, Q 452 [Ms Berry] Back

272   Volume II, Ev 283 Back

273   Volume III, Ev 121 Back

274   Volume II, Ev 313 (Barbato v. Uruguay, Communication No. 84/1981, UN Doc Supp No. 40 (A/38/40) at 124 (1983)) Back

275   Volume III, Q 468 [Ms Ireland] Back

276   Joint Committee on Human Rights, Third Report of Session 2004-5, Deaths in Custody, HL Paper 15-I, HC 137-I Back

277   Deaths in Custody, para 41 Back

278   Deaths in Custody, para 370 Back

279   Clause 4(4) Back

280   Clause 4(2) Back

281   Home Office, Corporate Manslaughter: The Government's Draft Bill for Reform, Cm 6497, March 2005, para 23 Back

282   Volume II, Ev 46 Back

283   Volume II, Ev 103 Back

284   Volume II, Ev 36 Back

285   Volume II, Ev 158 Back

286   Volume III, Ev 120 Back

287   Clause 10 Back

288   Clause 10(3) Back

289   Clause 10(3) Back

290   Home Office, Corporate Manslaughter: The Government's Draft Bill for Reform, Cm 6497, March 2005, para 40 Back

291   See for example, Volume II, Ev 79. Back

292   Volume II, Ev 57 Back

293   Volume II, Ev 158 Back

294   Volume II, Ev 314 Back

295   Volume II, Ev 142 and 159  Back

296   Volume II, Ev 120 Back

297   Volume III, Q 403 [Mr Stoddart] Back

298   Volume III, Q 412 [Mr Pritchard] Back

299   Volume III, Q 417 [Mr Pritchard] Back

300   Volume III, Ev 120 Back

301   Volume III, Q 461 Back

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Prepared 20 December 2005