124. Memorandum submitted by Public Concern
at Work
We are particularly pleased that the Government
has accepted that the new offence should not replace or prejudice
the application of the existing law of gross negligence manslaughter
to companies. We are also pleased that the Bill focuses—through
clause 3(2)—on whether or not senior managers were aware
or should have been aware of the risk of death or serious harm
posed by the failure to comply with relevant health and safety
legislation and guidance. While we still see merit in the Bill
providing a defence in the circumstances we outlined in our response
of 5 September 2000 to the initial proposals, we welcome the Government's
recognition of the relevance of this issue.
We have one minor observation on clause 3(2),
which we imagine others are also making, which is that the reference
to profiting from the failure in sub-clause (iii) will be problematic
in applying the offence to public and non-profit making bodies.
We would prefer the term "benefit" rather than "profit".
We have one other observation which may be caused
by our misunderstanding of the intent or application of one part
of the Bill. This relates to the proposed requirements that (a)
there should be a breach of a relevant duty of care in negligence
owed to the deceased and that (b) in considering whether that
breach was "gross", the jury should do so by regard
to relevant health and safety legislation and guidance.
As we understand the Bill, it will be for the
judge to determine whether there was a duty of care owed to the
deceased in negligence and it will be for the jury to determine
whether that duty of care in negligence was breached. It will
then be for the jury to determine whether that breach was, in
those circumstances, gross having regard to any failure to comply
with relevant health and safety legislation and guidance, the
seriousness of that failure and the matters set out in clause
3(2)(b).
It seems to us, then, that the key facts for
the jury as to whether criminal culpability for the death is made
out under the Bill will be:
(a) whether there was a failure to comply
with relevant health and safety legislation and guidance
(b) which was so serious, that
(c) having regard to the matters in clause
3(2)(b)
(d) the failure fell far below what would
reasonably have been expected of the conduct of the organisation
in the circumstances.
If this (although it is an oversimplification)
is essentially correct then it will be the grossness of the failure
to comply with relevant health and safety legislation and guidance
which will be the focus. If this is so, then we are not clear
why the Bill provides instead that the grossness of the breach
has to be found by reference to a duty of care in negligence owed
to the deceased.
We are conscious that this may seem an abstruse
point but our concern is that the stakes will be very high in
such cases and many may pan out like fraud trials where abstruse
points can cause additional confusion, time and cost without any
demonstrable countervailing benefit.
In an attempt to put this point more simply,
are there circumstances where the jury would find the four matters
summarised above are met but where the prosecution should fail
because they do not also find there was a breach of a duty of
care in negligence owed to the deceased?
If the answer is no, then we question what is
added by the requirement that the jury should also find there
was a breach of a duty of care in negligence. If the answer is
yes, then we wonder whether it might be simpler if, where a defendant
disputes that its conduct had been in breach of a duty of care
in negligence it owed the deceased, this is an issue that is first
determined in a civil court to a civil standard of proof, rather
than one for the jury in such a prosecution.
15 June 2005
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