Where harm occurs
246. Clause 16(1) of the draft Bill states that the
offence will only apply if "harm resulting in death is sustained
in England and Wales" or in territorial waters or on an offshore
rig or British flagged ship or aircraft. The place where the initial
harm occurs is therefore the only relevant factor. The Government
has justified its restrictive approach to jurisdiction on the
following basis:
"there would be very considerable practical
difficulties if we were to attempt to extend our jurisdiction
over the operations abroad of companies registered in England
and Wales. Such difficulties would mean that the offence would
in practice be unenforceable".[302]
247. Some of the memoranda we received agreed with
the Government's approach.[303]
The Confederation of British Industry suggested that an even more
restrictive approach should be adopted, arguing that in practice
it will not be possible to impose sanctions against foreign registered
companies or those where the senior management is based abroad.[304]
248. A greater number of witnesses, however, believed
that the territorial application was too limited. The Trades Union
Congress called for the provisions to be extended to British Dependencies,
such as Bermuda, the Cayman Islands, Gibraltar and the Isle of
Man, which are often used to register Merchant Shipping.[305]
The Fire Brigades Union were concerned that they were being encouraged
to provide firefighting at sea services and major incidents abroad
and yet the offence would not apply to foreign-registered vessels
or when they were working overseas.[306]
249. Particular concerns were raised about the fact
that the offence would not apply where the harm results abroad
but the grossly negligent behaviour has occurred in England or
Wales.[307] The Transport
and General Workers' Union argued that unless jurisdiction was
extended in this way the new offence of corporate manslaughter
would have no deterrent value for UK companies operating overseas.
In other words, there would be no incentive for such companies
to improve or maintain acceptable standards of health and safety
in the activities they conduct abroad.[308]
Other witnesses felt that this would have particular implications
for southern hemisphere countries where regulatory standards,
it has been argued, can be driven down by the need to attract
foreign capital.[309]
250. It was pointed out to us that British citizens,
if they caused death abroad, could be prosecuted in the British
courts.[310] For example,
the Simon Jones Memorial Campaign submitted:
"In common law manslaughter an individual
can be prosecuted for a death which occurred abroad. We fail to
see why employing organisations should be treated more leniently
than individuals. While it might be difficult to prosecute in
some circumstances we feel that if a senior management failure
in England caused a death in say Northern Ireland or Germany,
then the organisation should be prosecuted because the crime took
place in England."[311]
The Occupational and Environmental Health Research
Group noted that there were a range of legislative provisions
(not least those covering financial wrongdoing and corruption)
that enabled the prosecution of UK companies operating abroad.[312]
251. The Centre for Corporate Accountability submitted
that:
"The bizarre thing about this is that would
be a much easier offence to investigate than the scenario of the
management failure outside Britain with the death in Britain.
It would be very difficult to investigate companies which were
operating abroad; it is much easier to investigate them in Britain".[313]
252. Other memoranda we received recognised the practical
limits to the scope of the Bill, but argued that the Home Office
had dismissed the issue too readily. The Institution of Occupational
Safety and Health acknowledged that it would be very difficult
to adduce the evidence where a death had occurred abroad but wanted
to see more effort invested in exploring how it might be done.[314]
The Centre for Corporate Accountability suggested that incidents
overseas "should be dealt with on a case by case basis".[315]
Others proposed bilateral agreements or protocols with other jurisdictions.[316]
253. We believe that in principle it should be possible
to prosecute a company for corporate manslaughter when the grossly
negligent management failure has occurred in England or Wales
irrespective of where a death occurred. If this was not the case,
there would be no incentive for such companies to improve or maintain
acceptable standards of health and safety in the activities they
conduct abroad. We also note that there is a general trend of
increased extra territorial application for crime. Money laundering
and sex trafficking are two such examples. The Attorney General
also recently spoke proudly of having secured a conviction of
a non-British citizen for torture committed in Afghanistan (using
international war crime law).[317]
254. Although we accept that there may be some practical
difficulties in investigating a corporate manslaughter offence
when an individual has died in some jurisdictions outside the
European Union, we consider that within the rest of the UK there
will be no such difficulty and that in the rest of Europe there
will be minimal practical limitations. We recommend that the
offence be extended so that deaths that take place in the rest
of the UK are within the scope of the offence when the management
failure occurred in England and Wales. We also urge the Government
to make provision in the Bill for the offence later to be extended
at least to cover cases where deaths have occurred in the rest
of the European Union. Although we understand that evidential
and jurisdictional factors mitigate against the offence applying
to UK bodies operating elsewhere in the world, we consider that
the Government should take to itself a power to require information
from the relevant UK body about such a death.
Relationship with the rest of
the UK's law
255. The draft Bill when enacted would apply to England
and Wales only.[318]
The introduction to the draft Bill explains that "Criminal
law in Northern Ireland is the responsibility of the Secretary
of State for Northern Ireland and is a devolved matter in Scotland".[319]
We heard evidence from representatives from industry that it was
important that there was as little practical difference between
the law in England and Wales and the rest of the UK. For example,
Cameron McKenna Solicitors submitted:
"It is regrettable that there is a separate
process underway to review the law in Scotland. The Scottish law
of culpable homicide for companies is already different to that
of England and Wales. The government should endeavour to promote
a consistent UK-wide reform".[320]
256. The Northern Ireland Office (NIO) took the view
that "the same proposals should be consulted upon in Northern
Ireland and, subject to that consultation, that the Bill to be
brought forward in due course for England and Wales should be
extended also to Northern Ireland".[321]
Its deadline for consultations was 25 August 2005.
257. In Scotland, the Scottish Executive created
an "Expert Group" with a remit to "review the law
in Scotland on corporate liability for culpable homicide and to
submit a report to the Minister of Justice by the summer, taking
into account the proposals recently published by the Home Secretary".[322]
The Group published its conclusions on 17
November 2005.[323]
Its proposals for reform go much further than the draft Bill in
certain respects. These include provisions that:
- there be created a secondary
offence for directors or senior managers where their actions and
omissions directly contributed to the death and a stand alone
individual offence which would apply to any person who causes
a death through their work, without requiring that the employing
organisation is guilty of corporate killing;
- the offence should apply to unincorporated bodies;
- the offence should apply to situations where
the management failure took place in Scotland but the death took
place abroad;
- the removal of Crown immunity should be more
extensive than in the draft Bill; and
- the offence should be subject to wider penalties
than fines and remedial orders.
258. The Group wrote:
"the majority of members feel that alignment
is secondary to getting the law right in Scotland. We all agree
that alignment need not be on the basis of the current Home Office
proposals, on which we have a number of reservations. Indeed the
Group believes that the approach which we outline… provides
a useful basis for amending the law in all UK jurisdictions, not
just in Scotland".[324]
259. Although we accept that it will be inevitable
that there are some differences between the law on corporate manslaughter
or culpable homicide in England and Wales and in Scotland because
of the difference in the two legal regimes, the Government should
be doing all it can to ensure there is as little practical variation
as possible. We note that the recommendations in our report would
bring the Government's draft Bill closer to the reforms proposed
by the Scottish Expert Group.
302 Home Office, Corporate Manslaughter: The Government's
Draft Bill for Reform, Cm 6497, March 2005, para 56 Back
303
Volume II, Ev 121 Back
304
Volume II, Ev 249-50 Back
305
Volume II, Ev 17 Back
306
Volume II, Ev 217 Back
307
Volume II, Ev 9, 11, 17, 25, 30,36,59, 85,133, 170, 207, 220,
234, 255, 276 and 302 Back
308
Volume II, Ev 25 Back
309
Volume II, Ev 9 and 25 Back
310
Volume II, Ev 11, 170 and 220 Back
311
Volume II, Ev 85 Back
312
Volume II, Ev 9 and 25 Back
313
Volume III, Q 66 [Mr Bergman] Back
314
Volume III, Q 171 [Mr Waterman] Back
315
Volume II, Ev 170 Back
316
Volume III, Q 171 [Mr Waterman] Back
317
IBA conference, Prague, 'How far can laws reach? The problem of
extraterritoriality', 28 September 2005. This speech can be found
at http://www.lslo.gov.uk/speeches.htm. Back
318
Clause 16(1) Back
319 ,
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, para 63 Back
320
Volume II, Ev 104 Back
321
Northern Ireland Office, (2005) Corporate Manslaughter: Northern
Ireland Back
322
Scottish Executive, (2005) "Expert Group on Corporate Homicide"
2005 (08/09) Back
323
Scottish Executive, Corporate Homicide: Expert Group Report, November
2005 Back
324
Scottish Executive, Corporate Homicide: Expert Group Report,
November 2005, p 4 Back
