Select Committee on Home Affairs and Work and Pensions First Report


1.We welcome the Government's proposal to introduce a statutory offence of corporate manslaughter. (Paragraph 16)
2.We are concerned at the length of time it has taken the Government to introduce a draft Bill since it first promised legislation on corporate manslaughter. We believe there should be no further unnecessary delay. We urge the Government to introduce the Bill, including our recommended changes, by the end of the present parliamentary session, making provision for carry-over if necessary. (Paragraph 49)
3.As the Government's proposals stand, it will be possible to prosecute corporations under the provisions in the draft Bill, and individuals running smaller unincorporated bodies will be able to be prosecuted under the common law individual offence of gross negligence manslaughter. However, a gap in the law will remain for large unincorporated bodies such as big partnerships of accounting and law firms. We are concerned that such major organisations will be outside the scope of the Bill and would recommend that the Government look at a way in which they could be brought within its scope. We urge the Government to provide us with statistics in order to support its claim that the inability to prosecute large unincorporated bodies does not cause problems in practice. We would be particularly interested in seeing statistics detailing how many large unincorporated bodies have been prosecuted and convicted of health and safety offences. (Paragraph 62)
4.We welcome the certainty provided by an exhaustive list of government departments and other bodies and believe that the alternative, providing a statutory definition, could prove very difficult if not impossible to achieve. We agree with the Home Office that the draft Schedule needs "further work" to ensure that a number of other bodies, including a range of executive agencies, are included. It should also be reviewed by the Home Office on an ongoing basis, and formally every six months to ensure it is up to date. We think it might also be useful to extend clause 7 to ensure that bodies which are successors to bodies included in the Schedule are treated as "organisations" to which the offence applies. (Paragraph 65)
5.We recommend that the Home Secretary's delegated power to amend the Schedule should be subject to the affirmative resolution procedure rather than the negative resolution procedure. (Paragraph 67)
6.It is appropriate that police forces as well as police authorities should be subject to the proposed new offence. We welcome the Government's assurances that the Bill when introduced will contain such provision. (Paragraph 71)
7.We welcome the Government's proposal that the offence not be limited only to the deaths of workers. (Paragraph 74)
8.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. (Paragraph 81)
9.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. (Paragraph 84)
10.We are satisfied that the title of the offence should be "Corporate Manslaughter" not "Corporate Killing". (Paragraph 88)
11.We recommend that the Government provide certainty on the law of causation, as it applies to corporate manslaughter, by including the Law Commission's original clause in the Bill. (Paragraph 94)
12.We propose that the Home Office should remove the concept of 'duty of care in negligence' from the draft Bill and return to the Law Commission's original proposal that the offence should not be limited by reference to any existing legal duties but that an organisation should be liable for the offence whenever a management failure of the organisation kills an employee or any other person affected by the organisation's activities. We also recommend that whether an organisation has failed to comply with any relevant health and safety legislation should be an important factor for the jury in assessing whether there has been a gross management failure. Organisations are already required to comply with duties imposed under such legislation and so should already be familiar with them. (Paragraph 105)
13.If the Government does decide to continue to base the offence on duties of care owed in negligence we do not believe the common law concept concerned should be limited by introducing categories where a duty of care must be owed. We are particularly concerned that the material accompanying the draft Bill did not highlight the use of the word "supply" and its intended purpose of automatically excluding certain activities "provided" by the state. (Paragraph 108)
14.We agree that it should be possible to prosecute parent companies when a gross management failure in that company has caused death in one of their subsidiaries. (Paragraph 113)
15.We are concerned by the suggestion that it may not be possible to prosecute parent companies under the current law, as courts have not ruled that parent companies have a duty of care in relation to the activities of their subsidiaries. This is an additional argument in favour of our recommendation that the offence should not be based on civil law duties of care. (Paragraph 115)
16.We believe that, where a death of an agency worker or of an individual in a sub-contracting company was caused by a gross management failure by an employment agency or main contractor, it should be possible to prosecute these organisations jointly to establish either collective or individual corporate liability. We urge the Government to ensure that the Bill provides for this. (Paragraph 119)
17.We believe that principal contractors and employment agencies should take responsibility for the health and safety conditions of their sub-contractors and workers but that it is a step too far to provide that they should always be liable when a death has occurred. Principal contactors and employment agencies should only be liable when their own management failure is at fault. Anything more than this might encourage sub-contracting companies and those employing agency workers to ignore their health and safety responsibilities. (Paragraph 122)
18.We are very concerned that the senior manager test would have the perverse effect of encouraging organisations to reduce the priority given to health and safety. (Paragraph 136)
19.We agree that the offence does appear simply to broaden the identification doctrine into some form of aggregation of the conduct of senior managers. This is a fundamental weakness in the draft Bill as it currently stands. By focusing on failures by individuals within a company in this way, the draft Bill would do little to address the problems that have plagued the current common law offence. (Paragraph 140)
20.We are greatly concerned that the senior manager test will introduce additional legal argument about who is and who is not a "senior manager". (Paragraph 149)
21.We believe that the Government should be aiming for an offence that applies equitably to small and large companies. (Paragraph 154)
22.We note that the reference to senior managers might also have the unfortunate effect of discouraging unpaid volunteers from taking on such roles. (Paragraph 158)
23.We recommend that the Home Office reconsiders the underlying "senior manager" test. (Paragraph 159)
24.We believe that a test should be devised that captures the essence of corporate culpability. In doing this, we believe that the offence should not be based on the culpability of any individual at whatever level in the organisation but should be based on the concept of a "management failure", related to either an absence of correct process or an unacceptably low level of monitoring or application of a management process. (Paragraph 169)
25.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. (Paragraph 172)
26.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. (Paragraph 179)
27.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. (Paragraph 187)
28.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. (Paragraph 191)
29.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. (Paragraph 194)
30.We urge the Government to consider returning to the Law Commission's original proposal as a starting point. We acknowledge the argument that the Law Commission's "management failure" test could cover failings within a company that occur at too low a level to be fairly associated with the company as a whole. Nevertheless, we recommend that the Home Office should address this specific concern without abandoning the Law Commission's general approach. We suggest that juries be assisted in their task by being required to consider whether there has been a serious breach of health and safety legislation and guidance or other relevant legislation. In assessing this they could consider whether a corporate culture existed in the organisation that encouraged, tolerated or led to that management failure. (Paragraph 199)
31.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. (Paragraph 204)
32.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. (Paragraph 205)
33.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. (Paragraph 213)
34.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. (Paragraph 217)
35.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. (Paragraph 227)
36. 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. (Paragraph 233)
37.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. (Paragraph 239)
38.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. (Paragraph 245)
39.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. (Paragraph 254)
40.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. (Paragraph 259)
41.We welcome the higher sentences given in recent cases by courts following convictions for high profile health and safety offences which involved deaths. Nevertheless, the evidence suggests that there is a need for an improved system of fining companies. We recommend that, following the enactment of the Bill, the Sentencing Guidelines Council produce sentencing guidelines which state clearly that fines for corporate manslaughter should reflect the gravity of the offence and which set out levels of fines, possibly based on percentages of turnover. The Committee recognises that a term such as turnover would need to be adequately defined o n the face of the Bill. It is particularly important that fines imposed for the corporate manslaughter offence are higher than those imposed for financial misdemeanours. We also believe that it would be useful for courts to receive a full pre-sentence report on a convicted company. This should include details of its financial status and past health and safety record. (Paragraph 268)
42.We believe that it is right in principle that prosecuting authorities should have the power in appropriate cases to ensure that companies do not try to evade fines by shifting assets. (Paragraph 270)
43.We consider that remedial orders are unlikely to be frequently used in practice, as the Health and Safety Executive and local authorities are likely to have acted already. However, we believe they are an additional safeguarding power for cases where companies do not take appropriate action. We recommend that judges who do make use of this power should make full use of the expertise of the Health and Safety Executive and local authorities available to them. (Paragraph 275)
44.We recommend that the Government considers mechanisms for monitoring whether an organisation, including a Crown one, has complied with a remedial order and includes a provision for this in the Bill. (Paragraph 276)
45.We believe it is sensible to encourage directors of a company to take responsibility for ensuring their company complies with a remedial order. We therefore recommend that the Government amends the Bill in order to make it possible for directors to be charged with contempt of court if the company has failed to take the steps required by the court. (Paragraph 278)
46.We believe that it is important that Crown bodies do not escape sanction and that fines and remedial orders can serve a practical purpose in signalling culpability. (Paragraph 282)
47.We share the disappointment of many that the Government has not included more innovative corporate sanctions in the draft Bill. We welcome the fact that the Government is now looking at the issue of alternative penalties but believe that the scope of this review should be widened to look at alternative sanctions for non-regulatory offences. Remedial orders and fines provide an inadequate range of sanctions for sentencing. It is not clear, for example, if remedial steps already taken by an organisation will be taken into account in assessing the level of a fine. There clearly would be difficulties if fines made a company bankrupt if it had already taken successfully implemented remedial orders. We therefore think a wider range of sanctions is essential. (Paragraph 287)
48.Irrespective of this dispute it is our view that the draft Bill should make provision for companies to be required to pay compensation. (Paragraph 293)
49.We believe the Government should be aiming towards implementing a wide package of sanctions for corporate manslaughter, so that courts have the flexibility to match sanctions to the broad range of cases that might come before them. (Paragraph 298)
50.We do not believe it would be fair to punish individuals in a company where their actions have not contributed to the offence of corporate manslaughter and we therefore reject the argument that individuals in a convicted company should be automatically liable. However, we believe that if the draft Bill were enacted as currently drafted there would be a gap in the law, where individuals in a company have contributed to the offence of corporate manslaughter but where there is not sufficient evidence to prove that they are guilty of individual gross negligence manslaughter. (Paragraph 308)
51.The small number of directors successfully prosecuted for individual gross negligence manslaughter shows how difficult it is to prove the individual offence. Currently the only alternative would be to prosecute individuals for the less serious offence of being a secondary party to a health and safety offence. We believe that, just as the Government has taken the decision that when a company's gross management failing caused death it should be liable for a more serious offence than that available under health and safety legislation, so it should be possible to prosecute an individual who has been a secondary party to this gross management failing for a more serious offence also. We therefore recommend that secondary liability for corporate manslaughter should be included in the draft Bill. (Paragraph 309)
52.By analogy with the offence of causing death by dangerous driving the maximum term of imprisonment could be set at 14 years. (Paragraph 314)
53.We acknowledge that statutory health and safety duties could be introduced outside the Bill, but believe that since they might help clarify directors' duties with regard to corporate manslaughter law the Government should aim to introduce them either in the Bill, alongside the Bill, or as closely as possible afterwards. (Paragraph 320)
54.We agree that the investigation and prosecution of corporate manslaughter should remain the responsibility of the police and Crown Prosecution Service. However, the Home Office should consider whether the police might need further training in investigating and prosecuting the offence. (Paragraph 327)
55.We have yet to be convinced that the police require additional powers to investigate corporate manslaughter effectively. The requirement in the Police and Criminal Evidence Act 1984 to obtain judicial authority for entering and searching premises is an important safeguard. However, there does appear to be an inconsistency in the powers of the police and those of the Health and Safety Executive. We therefore urge the Government to consider this issue further. (Paragraph 334)
56.We recommend that the Government remove the provision in clause 1(4) requiring the Director of Public Prosecution's consent before a prosecution can be instituted. (Paragraph 340)
57.  We did not receive much substantial evidence to suggest that companies that currently have adequate health and safety arrangements in place would incur major costs when complying with this legislation. We recommend that the Government works with industry advisory bodies to try to educate industry about the offence and therefore minimise the cost of legal advice and training. (Paragraph 352)

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