142. Memorandum submitted by Victim Support
Victim Support is the national charity for people
affected by crime. Staff and volunteers offer free and confidential
information and support for victims of any crime, whether or not
it has been reported and regardless of when it happened. Victim
Support works to increase awareness of the effects of crime and
to achieve greater recognition of vitims' and witnesses' rights.
The organisation operates via a network of affiliated local charities,
the Witness Service and the Victim Supportline (0845 30 30 9000).
A RESPONSE BY
VICTIM SUPPORT
We welcome the publication of Corporate Manslaughter,
the Government's Draft Bill for Reform. We share the concerns
of those who have argued that the existing law in this area is
ill defined and ineffective. It is right that the Government is
responding to the real concern that, as the law stands, "it
is not delivering justice".
Last year, Victim Support supported 1,136 relatives
of homicide. We also run the Witness Service which supports prosecution
and defence witnesses in every criminal court in England and Wales.
Last year trained volunteers supported 364,888 victims, witnesses
and their families[210]
before during and after hearings.
CROWN IMMUNITY
We welcome the widening of the offence to cover
many activities by Crown bodies however, we are concerned that
important exceptions remain. We feel it is anomalous that, for
example, hospital trusts may be prosecuted for gross negligence
causing the death of someone in their care while the prison service
may not.
Also, if as it is to be hoped, the threat of
prosecution for corporate manslaughter will promote better health
and safety practices, the law should apply to all employing organisations
with no exemptions for Crown bodies.
We would conclude that is not clear that these
restrictions are justifiable.
Unincorporated bodies
The provisions of this Bill will not cover unincorporated
bodies such as trade unions and solicitors' firms. We believe
that the proposals should cover all employing organisations as
was envisaged in the Government's 2000 proposals.
Extra territorial jurisdiction
Victim Support welcomes the proposal that if
a death took place in Britain, any company, whether it is based
here or abroad could be prosecuted in this country, even if the
management failure itself occurred abroad. However, we believe
that if a death took place abroad due to a management failure
in this country, the offence should still apply. Although we appreciate
that there are some practical difficulties in investigating, prosecuting
and enforcing such offences when the death occurred abroad, these
difficulties are not insurmountable, especially where the jurisdiction
in question criminalises such corporate conduct.
Private prosecution
In the Government's 2000 proposals,[211]
it was stated that it should not be necessary to get the consent
of the Director of Public Prosecutions (DPP) to bring proceedings
for the offence of Corporate Manslaughter. Furthermore, the Law
Commission's report stated, "the right of prosecution should
be unrestricted unless some very good reason for the contrary
exists".[212]
However, these proposals have been changed to require the consent
of the DPP in such circumstances. The DPP is unlikely to give
his consent if the CPS has refused to prosecute, thus these provisions
effectively rule out the possibility of private prosecutions.
We believe that the provision allowing private prosecution proceedings
to be started without the DPP's consent should remain as an important
right for relatives of victims of corporate manslaughter.
Penalties for corporate manslaughter
We believe that there should be two overriding
objectives with regard to penalties for this offence:
The first is that, in recognition of the desire
of bereaved relatives for positive action to be taken in response
to the offence, the requirement to correct practices and to undertake
remedial action should take precedence over the imposition of
a fine. Furthermore, the company that has been found guilty of
the offence should be banned from providing its service until
it has rectified the process which led to the breach of the duty
of care. Fines should be calculated only after sufficient resources
have been allocated to corrective measures, such as renewing equipment
or training staff.
Second, offending organisations, including Crown
bodies, should be required to pay compensation to the families
of victims. Although no amount of money can ever compensate for
bereavement, compensation does have considerable expressive power.
Stricter test for breach than 2000 proposals
We are concerned about the introduction of a
stricter test of whether or not the duty of care owed to the victim
was breached. The Government's proposals in 2000 suggested a focus
on all management levels, while this Bill focuses on "senior
management". Furthermore, the definition of the term senior
management itself is narrow, thus risking further gaps in accountability.
This means that even where there is gross mismanagement at middle
and lower levels of the organisation that results in death, it
may not be possible to prosecute for the corporate manslaughter
offence. We share other organisations'[213]
concerns that, as a result of this loophole, there is a risk that
it may become company policy to delegate responsibilities down
the management chain, thereby allowing the organisation to escape
manslaughter prosecution. By narrowing the net of accountability,
the government risks leaving many bereaved relatives without any
legal redress in the criminal law as well as increasing the vulnerability
of more junior staff.
Definition of gross breach
By including the consideration of whether or
not an organisation, "sought to cause the organisation to
profit from that failure" as part of the jury's deliberations,
this Bill causes two problems. First, it is very difficult to
obtain such evidence and second, it will not be relevant where
the organisation that is charged is a public body or any other
organisation that does not operate for profit. This provision
increases the risk of inappropriate acquittals.
Other issues
In 2000, the Government thought that the issue
of accountability of directors needed to be addressed. The current
problem is that it is not clear that directors have a duty of
care in relation to the person who dies as a result of an action
or omission by his or her company. If there is no duty, it cannot
be breached and a prosecution will be unsuccessful under this
law and under health and safety legislation. This gap should be
addressed as a matter of urgency either in this Bill or by other
legislative means.
17 June 2005
210 We often support more than one relative in the
same family. Back
211
Reforming the Law on Involuntary Manslaughter: The Government's
Proposals. Back
212
Legislating the Criminal Code: Involuntary Manslaughter, 1996. Back
213
Such as the Centre for Corporate Accountability (CCA). Back
| 
