115. Memorandum submitted by Martin Elliott
This note refers to the Home Office publication
Cm 6497 "Corporate Manslaughter: The Government's draft Bill
for Reform". In this note, unless otherwise stated, references
to section numbers are to section or paragraph numbers in the
introduction to that publication, and the applicable text of the
publication is quoted in each case prior to answering the query
posed by the publication.
SECTIONS 25-31: MANAGEMENT
FAILURE BY
SENIOR MANAGERS
The heart of the new offence lies in the requirement
for a management failure on the part of its senior managers .
. . The definition of a senior manager is drawn to capture only
those who play a role in making management decisions about, or
actually managing, the activities of the organisation as a whole
or a substantial part of it . . . The definition then requires
the person to play a "significant" role . . . The term
"significant" is intended to capture those whose role
in the relevant management activity is decisive or influential,
rather than playing a minor or supporting role . . . What amounts
to a "substantial" part of an organisation's activities
will be important in determining the level of management responsibility
engaging the new offence. This will depend on the scale of the
organisation's activities overall . . . We look forward to receiving
comments on this key aspect of our proposals. We would in particular
welcome views on whether the proposals for defining a senior manager,
in terms of the management of the whole or a substantial part
of the organisation's activities and playing a significant role
in such management responsibilities, as illustrated above, strike
the right balance.
Agree that the current proposals strike the
right balance.
SECTION 32 AND
33—GROSS BREACH
AND STATUTORY
CRITERIA
The new offence is targeted at the most serious
management failings that warrant application of a serious criminal
offence. It is not our intention to catch companies or others
making proper efforts to operate in a safe or responsible fashion
or where efforts have been made to comply with health and safety
legislation but appropriate standards not quite met. The proposals
do not seek to make every breach of a company's common law and
statutory duties to ensure health and safety liable for prosecution
under the new offence. The offence is to be reserved for cases
of gross negligence, where this sort of serious criminal sanction
is appropriate. The new offence will therefore require the same
sort of high threshold that the law of gross negligence manslaughter
currently requires—in other words, a gross failure that
causes death. We have adopted the Law Commission's proposal to
define this in terms of conduct that falls far below what can
reasonably be expected in the circumstances.
A number of respondents to the consultation
exercise in 2000 were concerned that the term "falling far
below" was insufficiently clear and that further clarification
or guidance was needed in respect of this. The draft Bill therefore
provides a range of statutory criteria providing a clearer framework
for assessing an organisation's culpability. These are not exclusive
and would not prevent the jury taking account of other matters
they considered relevant. We are very much interested in further
debate on whether the criteria proposed are appropriate or whether
further or different criteria would be helpful.
Gross Breach
In the phrase "conduct falling far below
what can reasonably be expected", the expression "far
below" is imprecise and lacks the severity and overall impact
of "gross" in the definition of a "gross breach
of a duty of care". There would be closer correlation if
"far below" were replaced with "grossly below".
A "gross breach" of any legal duty would normally be
interpreted as conduct that falls little short of wilful default,
and that interpretation of the Bill would appear to reflect the
intention of the legislature here.
SECTION 37—CORPORATIONS
The Government's consultation paper in 2000
invited comments on whether action should be possible against
parent or other group companies if it could be shown that their
own management failures were a cause of the death concerned. A
large majority of respondents agreed with this proposal, but in
most cases on the basis that the parent company should only be
liable where their own management failings had been a direct cause
of death. Under the Bill, a parent company (as well as any subsidiary)
would be liable to prosecution where it owed a duty of care to
the victim in respect of one of the activities covered by the
offence and a gross management failure by its senior managers
caused death.
Agreed.
SECTIONS 38-40: THE
ARMED SERVICES
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. However . . . it is 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. However, the offence would otherwise
apply to the Armed Forces.
To avoid possible future accountability of individuals
deployed with the Armed Forces on Contractor on Deployed Operations
(CONDO) who by their nature are employees of a Company performing
work for the MoD but are also members of Reserve Forces Clause
10 (2) of the Bill should be amended by inserting after "armed
forces" the phrase "at the date of commission of any
offence to which this Act applies" and inserting "exclusively"
after employed.
SECTIONS 45-46—PUNITIVE
SANCTIONS
The Law Commission in its 1996 report argued
that it would not be appropriate for an offence that deliberately
stressed the liability of the corporation itself to involve punitive
sanctions for individuals. Secondary liability for the new offence
should only extend to individuals in circumstances where they
were themselves guilty of manslaughter.
In its consultation paper in 2000, the Government
expressed concern that without punitive sanctions against company
officers, there would be insufficient deterrent force to the new
proposals. The paper therefore asked for views on whether individual
officers contributing to a management failure should face disqualification.
It further sought views on whether imprisonment should be available
in proceedings for a separate offence of contributing to a management
failing that had caused death, and the sort of sanctions that
should be available.
Agreed—the approach of the Bill is right
ie there should be no additional jeopardy for the individuals
concerned, since they would in appropriate cases be subject to
separate prosecution for manslaughter or other offences, as well
as certain disqualification proceedings under existing legislation.
SECTION 57—INVESTIGATION
AND PROSECUTION
The consultation paper in 2000 invited views
whether health and safety enforcing authorities in England and
Wales should be given powers to investigate and prosecute the
new offence, in addition to the police and Crown Prosecution Service.
This attracted a range of comment, and little consensus of opinion.
The results of enforcing authorities investigations
should form the basis of decisions to prosecute.
Support the proposal that the consent of the
DPP is required before prosecution.
SECTION 62—COSTS
. . . we have identified costs of some £14.5
million to industry. A 1% increase in compliance with health and
safety measures would provide some £200-300 million in savings
in the costs associated with workplace injuries and death. We
will continue to develop the RIA (regulatory impact assessment)
in the light of comments on the draft Bill and would welcome further
information from respondents on potential costs.
No comment.
ADDITIONAL COMMENTS
OR NOTES
Clause 4 of the Bill: Relevant duty of care.
The second sentence of Clause 4(3) should be
removed. It is accepted that the issues surrounding the duty of
care are questions of law, but the underlying facts should always
be questions for the jury in a criminal trial and not for the
judge. This is a fundamental tenet of the English criminal justice
system and to exclude it would be potentially to deny some of
the basic human rights of the defendant. It is also difficult
to see how in practice the judge could be expected to rule on
the underlying facts relating to the duty of care when those facts
will almost inevitably consist wholly or partly of the very facts
of the case before the court, which are in any event reserved
to the jury.
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