136. Memorandum submitted by Mr Justice
Silber
1. I was the member of the Law Commission,
who was primarily responsible for producing its report Legislating
the Criminal Code-Involuntary Manslaughter (LC 237), which
constituted the starting point for the present draft Bill.
THE NEED
FOR REFORM
2. The responses to the Home Office's consultation
in 2000 and to the Law Commission's Consultation Paper show very
strong support for the reform of the present law on manslaughter.
There are many serious defects in the present law such as that:
(i) at present, corporations - other than
one-man companies - have consistently escaped conviction for corporate
manslaughter merely because of the requirement that a "directing
mind" is also guilty of manslaughter. The failures of the
prosecutions after the Herald of Free Enterprise ferry disaster
and the Southall rail disaster reveal starkly the glaring defects
in the present law, which cries out for immediate reform;
(ii) we now have a state of affairs by which
one man companies are liable to be convicted for manslaughter
while their larger counterparts cannot be convicted; this position
is in direct conflict with the aim of our criminal justice system,
which is to treat wrongdoers equally; and
(iii) as a matter of public policy, if companies
were liable in appropriate cases to be convicted of corporate
manslaughter, this sanction would provide a powerful incentive
for companies to be especially concerned about safety issues.
Obviously convictions for breaches of Health and Safety legislation
are not adequate substitutes for convictions for manslaughter.
which alone would mark society's condemnation of the grossly negligent
conduct of a company, when it causes death.
3. Although there have been judicial requests
for there to be no further criminal legislation, this Bill is
long overdue and should be implemented. It will not burden the
legal system as it will not lead to a great increase in work for
the court but will ensure that the present anomalous position
described in paragraph 2 above is ended
THE PROPOSALS
FOR REFORM
4. The proposals for the scope of the new
offence in the Bill are admirable. The threshold of liability
based on gross negligence achieves a fair balance as it will lead
to the convictions of only those who should be held culpable.
Experience has shown that the law of gross negligence manslaughter
as effecting individuals has been widely understood and has been
applied without undue difficulty by juries. Thus the requirement
of gross negligence will also be relatively easy for a jury to
understand and to apply.
5. Furthermore, I regard as fair and striking
the correct balance, the proposals for defining a senior manager
in terms of the management of the whole or a substantial part
of the organisation activities and playing a significant role
in such managerial responsibilities.
6. 1 am content with the proposals about
the bodies, which should be exempted as again it seems that a
fair balance has been achieved so to exclude organisations such
as the armed forces for which different consideration is applied.
7. The sanctions in the Bill are adequate.
In my view, it is very important that the Crown should in appropriate
cases be fined if found guilty of corporate manslaughter even
though the fine would be recycled through the Treasury; the important
factor, which cannot be exaggerated, is the shame and chagrin
that a public body will suffer by being fined for corporate manslaughter
and lot merely for what is perceived to be a regulatory offence.
It would be very unsatisfactory if public bodies were exempt from
being fined or found guilty of corporate manslaughter as this
would seriously reduce the effectiveness of the new provisions.
8. I am no longer a member of the Law Commission
and so this response is mine alone.
24 May 2005
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