Select Committee on Home Affairs and Work and Pensions First Report


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:

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 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

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Prepared 20 December 2005