173. Supplementary memorandum
submitted by the Rt Hon Sir Igor Judge
May I explain, again, my concern about remedial orders.
I am not sure that my evidence was sufficiently clear. Naturally,
an organisation that fails to comply with an order cannot be imprisoned.
Nevertheless, where the activities of the organisation have been
managed or organised in such a way as to amount to a gross breach
of duty, it should be open to the court to identify the senior
managers responsible for ensuring that the appropriate remedial
steps should be taken. That does not imply that they are personally
guilty of anything: merely that the organisation for which they
are responsible was guilty, and that as the senior managers of
the organisation, they have a responsibility for seeing that the
relevant breach is remedied. Ultimate responsibility for seeing
that the breach is remedied would rest on senior officers of the
corporation.
Once it is accepted that an individual or individuals
may be identified as the persons responsible for remedying the
breach, there then is no reason why failure to remedy the breach
should not be punishable by imprisonment. As I explained, of course,
that does not mean that they may not delegate those functions,
and if they do, and they delegate to an appropriate responsible
employee they may then use the equivalent of section 36(1) of
the Health and Safety Act or, for example, section 24 of the Trade
Descriptions Act, or section 21 of the Food Safety Act as a defence.
The decision as to whether this is appropriate
is a matter for Parliament.
December 2005
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