House of Commons - Home Affairs

Select Committee on Home Affairs Written Evidence

147. Memorandum submitted by JUSTICE

1. JUSTICE is an independent all-party legal and human rights organisation, which aims to improve British justice through law reform and policy work, publications and training. It is the UK section of the International Commission of Jurists.

2. JUSTICE responded to the Home Office consultation on the Draft Corporate Manslaughter Bill. We are grateful for the opportunity to provide evidence to this inquiry, and are happy for our responses to be made public.

SUMMARY

3. We welcome the publication of the draft Bill, as it demonstrates the Government's recognition that the current law of manslaughter is ineffective in dealing with deaths caused by gross negligence at a corporate level. However, the law of homicide is in need of wholesale reform—as evidenced by the Government's announcement of an extensive review of the law of murder.

4. Ideally, corporate manslaughter should form part of that review and become part of a new, unified structure of homicide offences. However, the current situation necessitates urgent reform and we therefore support the draft Bill, in principle.

5. We do, however, have serious concerns about the scope and effectiveness of the new offence as currently drafted. Specifically, they are that:

— The reference to "managers" will complicate the offence and will make it more difficult to establish liability

— The requirement that the managers be "senior" will allow larger corporations to evade liability

— While we do not oppose the extension of the legislation to public bodies, we believe that care must be taken to avoid possible negative consequences of this move

— We are concerned at the exemption for "exclusively public functions", especially since this would include deaths in custody

— Consideration should be given to making some partnerships liable for the offence

— The existence of a profit motivation should not be used to decide whether gross negligence is present

— The Government should ensure that the provisions do not prevent prosecutions of individuals for homicide offences alongside corporations, when this is appropriate

— The armed forces exemption should be narrow and should not apply to deaths in military custody

GENERAL REMARKS

6. The Government is obliged, under Article 2 of the European Convention, to establish a legal framework in which those responsible for homicides may be brought to justice, which acts as a deterrent against the commission of such offences. In Keenan v. UK, the European Court of Human Rights said:

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7. In the recent case of Öneryildiz v. Turkey, the Court said that:

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8. In that case, death was caused by serious negligence on the part of state officials in the context of a dangerous activity for which the state was responsible. In those circumstances, the conviction of officials for a negligence offence, the provision for which did not relate to life-endangering acts or the protection of the right to life, and the imposition of suspended "derisory" fines, was judged not to have secured

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9. Following Öneryildiz, the current legal regime in England and Wales may not satisfy the Government's positive obligations under Article 2. In some cases of manslaughter attributable to grossly negligent acts or omissions within a corporation, it may be impossible or inappropriate to prosecute any individual for a homicide offence—but the current law of corporate manslaughter makes it very difficult successfully to bring prosecutions against larger corporate entities. Further, although the offence under section 3 of the Health and Safety at Work Act 1974 allows for substantial fines to be imposed against corporations, it does not carry the "label" of a causing death offence, and it has been observed that "apart from some notable exceptions, the fines imposed have been relatively small".[217]

10. While the deterrent effect upon corporations of a substantial fine may be considerable, the public opprobrium associated with a manslaughter conviction and its attendant publicity, which (for businesses) may result in loss of custom—particularly in cases where consumers/customers have died—may have a greater effect.

11. We therefore believe that the law of corporate homicide should be reformed in order to provide an adequate deterrent framework against gross negligence by corporate entities.

12. However, we also believe that the law of homicide is in need of wholesale reform. In May of this year, the Director of Public Prosecutions drew attention to the injustices that can be perpetuated under the current system. We therefore welcome the forthcoming review of the law of murder to be carried out by the Law Commission and Home Office. Without wishing to pre-empt its conclusions, we believe that it is likely (in the light of the Government's commitment to the mandatory life sentence and the murder sentencing principles in the Criminal Justice Act 2003) that following the review, the scope of the offence of murder will be narrowed, to exclude instances of intentional killing where greater flexibility in sentencing is desired (for example, some types of mercy killings).

13. The logical consequence of this move is that the scope of the offence now called "involuntary manslaughter" will alter. The word "manslaughter" may no longer even be used.

14. The timing of this draft Bill is therefore not ideal. The offence of corporate manslaughter, if created before the review is complete and new homicide legislation passed, may require amendment in order to interact correctly with individual liability. It is necessary, in order to promote fair labelling and legal certainty, that if the titles of corporate and personal offences are to both be "manslaughter", their constituent elements are similar (in so far as the different characteristics of natural and legal persons allow).

15. It is also necessary, in our view, that individuals can be tried alongside corporations in relation to a death where appropriate. A charge of corporate manslaughter should not result in impunity for individual corporate officers, employees or others whose individual acts would found a charge of manslaughter or murder in relation to the same death, either as a principal or a secondary party. This would be contrary to the rule of law, and, arguably, to Article 2 of the Convention.

16. In our view, the sub-committees should be alive to the danger that this draft Bill will "bind the hands" of future legislators seeking to establish a new structure of homicide offences. While there is no question, of course, that a future Parliament would be legally bound by the legislation, it might take the view that corporate manslaughter should not be reformed again so soon as, say, two years after the enactment of this Bill.

17. However, on balance, since the current situation is very unsatisfactory and since the review of the law of murder is likely to be lengthy and will not certainly result in substantial reform, we would urge that the offence of corporate manslaughter be created as soon as is reasonably practicable.

SPECIFIC CONCERNS

— The reference to "managers" will complicate the offence and will make it more difficult to establish liability

— The requirement that the managers be "senior" will allow larger corporations to evade liability

18. Section 1(1) of the draft Bill requires that the management failure that is a cause of death is committed by the organisation's "senior managers". We note that the Law Commission recommended only that the death should have been caused by a "management failure by the corporation".[218] We recommend the removal of the reference to "senior managers", so that the offence can be established by a "management failure by the corporation". This was the phrase proposed by the Government in 2000.[219]

19. The reference to "senior managers" brings in an element of the "identification" principle that has made convictions so difficult to obtain in the past.[220] To an extent, it substitutes a number of "controlling minds" for the single "controlling mind" previously required to establish liability, and will be an obstacle to successful prosecution in many cases.

20. The fact that the failure must have been committed by the corporation's "senior managers" will retain another problem with the current law—the larger a corporation is, the more difficult it will be to establish guilt. The Government acknowledges this, but does not seem to consider it a problem, saying in the current consultation paper that "management responsibilities that might be covered by the offence within a smaller organisation, such as a single retail outlet or factory, may well be at too low a level within an organisation that operates on a much wider scale".

21. We accept that vicarious liability should not apply to such a serious offence in relation to the acts of all employees. However, the appropriate level at which liability should be generated is, in our view, set by the phrase "management failure". We believe that it is wrong in principle that a death caused by grossly negligent practices in the management of, say, a single factory should be entitled "manslaughter" if the factory is run by a small business but should only be a health and safety offence if it is owned by a large company which has a number of factories. This disparity not only detracts from fair labelling but may also result in a lack of public confidence in the offence.

22. It may be possible for larger corporations to evade liability for corporate manslaughter entirely because of this requirement, merely by shifting responsibility for health, safety and other potential liability-attracting activities to junior managers, and not having generalised policies. The deliberate policy of decentralisation would not, in itself, be grossly negligent in most circumstances, unless, for example, those to whom responsibility was delegated were clearly incompetent.

23. The impact of this requirement will be, therefore, that larger companies will not feel the deterrent effects of the legislation, while smaller companies will bear a greater regulatory burden. It will also lengthen and complicate the process of investigation. It may necessitate an investigation of the activities of individual senior managers and even all of the senior managers in order to assess, as a whole, their conduct in relation to the relevant issue. In the case of a large company this will engage considerable investigative resources.

24. Further, it will make trials longer and more complex. Court time and argument may be spent on deciding who is a "senior manager" under the section 2 definition. One of the advantages cited by the Court of Appeal of the development of vicarious liability for section 3 of the Health and Safety at Work Act 1974 was that it would reduce the time taken up in trials by such enquiries.[221] Further, if the activities and/or states of mind of a large number of senior managers have to be put before the jury this will, again, lengthen the trial.

25. The definition is too similar to the Tesco Supermarkets Ltd v. Natrass[222] 9 formulation, which omits "from its compass middle-level managers who may have considerable authority and discretion but lack the capacity to bind the company as a whole by their decisions".[223] We agree that:

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26. It is the Government's intention that parent companies could be liable where a death occurred in a subsidiary company, provided that causation can be established in relation to the activities of the senior managers of the parent company. However, under these provisions it would be very difficult, again, to establish liability, since policies regarding, for example, health and safety could be devolved to subsidiary level.

27. We therefore recommend that the offence should not refer to "managers"—especially to "senior managers"—but instead should be defined in terms of a "management failure" by the corporation.

A. Gerry, "Case Analysis: Oneryildiz v. Turkey", [2005] EHRLR Vol. 2, 203-212 at 212.

Liability of local authorities, central government bodies and police forces.

28. In our response to the Home Office consultation on the draft Bill, we opposed the extension of liability for this offence to public authorities. While we retain concerns about such liability, on reflection we no longer oppose such a move, for two reasons. Firstly, we think that it is desirable, wherever possible, to enhance the accountability of public authorities in relation to death caused by gross negligence. Secondly, following the case of Öneryildiz, where the state is responsible for a death and no criminal case against an individual for a "causing death" offence is possible, it is arguable that an offence of this nature is a necessary part of an adequate deterrent framework against violations of Article 2.

29. However, while it is to be hoped that a manslaughter conviction would produce benefits for the public in the form of a thorough review of procedures in the relevant authority, we have some concerns about the effects of a conviction on the public. In some cases, there would be no alternative provider of the relevant service available. Public confidence in a public authority and the services provided by it could be severely undermined by the stigma of a manslaughter conviction.

30. Particular issues are raised in this regard in the case of law enforcement bodies, such as the CPS and the police. It is notable that a homicide conviction would usually bar an individual from working as a police officer or prosecutor. To allow a police force, prosecuting authority or law enforcement agency to operate with such a conviction could bring the machinery of justice into disrepute.

31. There are also conceptual and practical problems generated by the sentencing exercise in relation to a public authority. If financial penalties were available, guidance would have to provide for very careful "ring-fencing" of funds to ensure that public services, and non-managerial staff, did not suffer from the imposition of a fine.

32. In relation to central government departments, the use of remedial measures is also problematic, since it requires the courts to become involved in executive functions in ways in which they have been reluctant to do in the past. In R v Secretary of State for the Home Department, ex parte Mersin,[225] an appellant who asked for an order that the Secretary of State carry out remedial measures and provide a progress report to the court was refused: the court said that:

The courts can identify breaches of the law by the Secretary of State, but I would be trespassing on the Respondent's own discretion if I were to formulate an injunction or mandamus directing him how to deal with these cases in the future. Furthermore, in my view I would be trespassing on the function of Parliament if I were to try to hold the Minister to account to the court for his future conduct in the manner proposed. Ministers report and are accountable to Parliament, not to the courts. Even if I were to find that the respondent was in continuing breach of his legal obligations, it would be quite wrong to assume that he would be unwilling to abide by those legal obligations in the future in accordance with any judgment I would give, yet that seems to me to be the assumption that would need to be made if any such order were even to be considered. There is no basis at all for making that assumption here.

33. Further, in many public authority cases the criminal courts will simply not be best placed to assess the funding questions, public policy considerations and other matters of specific expertise that will be relevant to the imposition of remedial measures.

34. It is also possible that acquittals or the discontinuance of cases against public authorities, especially law enforcement bodies, may give rise to allegations of a lack of independence. We recommend that consideration be given to ensuring that investigating and prosecuting authorities are both independent, and seen to be independent, from the public authority defendant. Where a police force, law enforcement agency or prosecuting authority is the defendant in a case, this will be particularly important.

35. Other methods of holding public authorities accountable—such as inspection reports, investigations and inquiries—are in some ways preferable. This is not only because they avoid some of the problems outlined above, but also because they are likely better to address the organisation's failings and make recommendations for change. A criminal prosecution is focused upon the events leading up to a single death, whereas the remit of an investigation could be expanded to cover the general activities of the organisation. Further, the body making the recommendations can be appointed so as to have an appropriate level of expertise in the relevant field. Public authorities can also, of course, be held accountable in the civil courts both in private and public law (including under the Human Rights Act 1998). However, in many cases this will depend upon the victim's family being willing and able to sue.

36. We therefore do not oppose the extension of liability to public authorities but emphasise that such extension will require attention to make sure that it is workable. We note that in 2000 the Government considered the adoption of an approach similar to that of the Food Safety Act 1990, which, rather than applying criminal liability to government departments, allowed courts to make a declaration of non-compliance with statutory requirements, requiring immediate action on the part of the Crown body to rectify the shortcoming intended.[226] We do not recommend this approach, as we do not consider that it would solve most of the problems highlighted above; it would also lessen the deterrent effect of the legislation.

There should be no exemption on the grounds that the corporation is performing an "exclusively public function"

37. We are concerned at the exemption for "exclusively public functions". To create such an exception is to state that in those circumstances, gross negligence causing death on the part of a corporation is lawful under the criminal law. We do not believe that gross negligence causing death can ever be justified, even in an emergency. We note that no derogation is permitted from Article 2 of the Convention in times of war or emergency (save for deaths resulting from lawful acts of war themselves).

38. We are particularly concerned that the Government's proposals would exclude deaths in custody from the ambit of the offence. It has proved particularly difficult to establish successful prosecutions in relation to deaths in custody, even after an inquest verdict of unlawful killing. The European Court of Human Rights has emphasised that "[i]n the context of prisoners . . . persons in custody are in a vulnerable position and . . . the authorities are under a duty to protect them".[227] The UN Human Rights Committee, in relation to a death in custody, was of the view that a state party to the International Covenant on Civil and Political Rights was "under an obligation to take effective steps . . . to bring to justice any persons found to be responsible for his death".[228]

39. We believe that there is no principled justification for excluding deaths in custody from the ambit of the offence. In relation to publicly managed custodial provision, current mechanisms of accountability do not seem to be proving sufficient in practice to prevent such deaths. In relation to private custodial companies, we do not believe that public law remedies provide an effective deterrent or a sufficient degree of accountability.

40. We therefore recommend that there should be no general exception for "exclusively public functions". If the Government wishes to prevent liability in specific situations, these should be specified and justifications provided so that they can be individually considered.

Consideration should be given to making some partnerships liable.

41. While we accept that liability may not be appropriate in the case of all unincorporated organisations, we are concerned as to the position of large partnerships such as major law firms (who operate as Limited Liability Partnerships). Such firms characteristically have an established management structure and policies in relation to employees etc. that are equivalent to those operating in companies. We believe that the Government should consider including unincorporated organisations of a sufficient size and with a sufficiently established structure within the terms of the Act.

42. We note that in 2000 the Government was inclined to the view that the offence should apply to all "undertakings",[229] rather than merely to corporations. Provided that the entity in question had a sufficiently defined identity and structure, we would welcome a more expansive application of the Bill than the current definition of "corporation".

The existence of a profit motivation should not be used to decide whether gross negligence is present.

43. We do not believe that reference to a profit motivation should be included in clause 3(2). If it is included, we recommend that the jury should receive careful direction (via a specimen direction developed by the Judicial Studies Board) that they do not have to find all three factors listed in clause 3(2) to be present in order to convict.

44. The motivation of managers, if proven, should be taken into account at the point of sentencing if relevant to culpability, but should not, we believe, be regarded as directly relevant to the degree of negligence present. The inclusion of this factor in clause 3(2) may encourage the jury to focus upon the underlying motivations of managers instead of the degree to which relevant standards were breached and the nature of the risk created. In our view the important matters are the degree of risk created and the extent to which the management fell below the standard that could reasonably be expected. The mens rea element is comprised in the consideration of how apparent the breach and risk of death would, or should, have been to the management.

45. We believe that sub-clause 3(2) should refer to "managers" of the organisation, rather than "senior managers", for the reasons outlined above in relation to clause 1.

The Government should ensure that the provisions do not prevent prosecutions of individuals for homicide offences alongside the corporation when this is appropriate.

46. In principle, the liability of a corporation for a homicide offence, in our view, should not result in automatic impunity for individuals who are responsible for a homicide, either as a principal or a secondary party. The threat of individual prosecution can operate as a very effective deterrent and should not be excluded.

47. We are concerned that the Bill may prevent the imposition of secondary liability in two situations. The first situation is that where there is evidence that an individual, as principal, has committed a homicide offence, and there is evidence that a corporation has committed corporate manslaughter in relation to the same death. We are concerned that the draft Bill, if passed into law, may frustrate such proceedings. If the individual was charged with manslaughter, it would be very difficult to try both the individual and the corporation together, since the jury would have to consider similar but distinct tests in relation to the guilt of both parties. If separate proceedings were brought, this could generate unfairness to one or more parties in some cases. The bringing of a prosecution against both an individual and a corporation might even give rise to an abuse of process argument in some cases.

48. The second situation is where an individual would, had another individual or group of individuals been responsible for manslaughter, have been guilty as a secondary party. There may be good reason for excluding liability for aiding and abetting an act of corporate manslaughter on the grounds that this would result in liability in an undesirably wide range of circumstances. However, we would welcome consideration of liability for individuals for counselling or procuring an act of corporate manslaughter.

The armed forces exemption should be narrowly defined; consideration should be given to extending jurisdiction to deaths in military custody

49. We are concerned about the extent of the armed forces exemption in clause 10. While there may be good public policy reasons for exempting combat operations themselves from the ambit of the offence, any extension beyond combat should be carefully scrutinised. In particular, the reference in subclause 10(1)(a) to "activities . . . in preparation for, or directly in support of, any combat operations" could be capable of a wider interpretation than is justified. We are also unsure as to why members of the armed forces should not be protected against gross negligence causing death during combat training, as provided for in clause 10(3)(b).

50. We also believe that consideration should be given to extending the clause to cover deaths in military custody. In R. (on the application of al-Skeini and others) v. Secretary of State for Defence[230] it was held in relation to the death of Baha Mousa, who died in a military prison in Iraq in British custody, both that his death took place within the jurisdiction of the United Kingdom so as being capable of falling within the scope of the European Convention and the Human Rights Act, and that the enquiries that had taken place into his death did not satisfy the procedural requirements of Articles 2 and 3 of the Convention.

51. The effect of this judgment is that the jurisdiction of the Convention can apply to a prison operated by a state party in the territory of another state with the consent of that state. The court in al-Skeini said of Mr. Mousa's death that:

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52. Since it may be difficult to prosecute individuals in relation to deaths in military custody, existing remedies may not satisfy Article 2 of the Convention. We therefore recommend that consideration be given both to providing that the clause 10 exception does not apply to deaths in military custody, and to extending the extra-territorial jurisdiction of the Act to military custodial facilities under British control in foreign territory.

14 September 2005