155. Memorandum submitted by the Association
of Chief Police Officers of England, Wales and Northern Ireland
This is the Association of Chief Police Officers
of England, Wales and Northern Ireland (ACPO) response to the
Corporate Manslaughter Bill.
In building this response ACPO has consulted
its membership and has invited comment from all of our Business
Areas.
ACPO agrees with the consultation document that
the current law on corporate manslaughter, linking a company's
guilt to the gross negligence of a person embodying the organisation,
fails to reflect the reality of modern corporate life and also
fails to deliver justice. The failure of numerous high profile
trials and proposed prosecutions for corporate killing in recent
years has indicated the need for change. ACPO notes Government's
own figures which show that since 1991 there have only been 34
prosecution cases for work related manslaughter and only six small,
organisations convicted.
1. POLICE SERVICE
GENERAL ISSUES
1.1 ACPO agrees with the statement at paragraph
18 of the Government's March 2005 publication in respect of an
offence of corporate manslaughter not being an appropriate way
of holding the Government or public bodies to account for matters
of public policy or uniquely public functions. ACPO would further
state that the police service, is arguably one of the most accountable
groups in society, through application of the criminal law, and
the scrutiny of other bodies such as the Independent Police Complaints
Commission, Police Authorities, the Home Secretary, the Home Affairs
Committee, and in London the Mayor's office. ACPO would submit
therefore, that there requires to be absolute clarity that the
police will not be held to be accountable under the proposed legislation,
for deaths relating to police operational conduct.
In the event of a death as a result of the police
use of firearms, for example, there is a full and independent
examination of the circumstances by the Independent Police Complaints
Commission. If it is found that an officer has acted outside of
the law, then that officer as an individual might be brought before
a Court to stand trial. The same applies when a person dies as
a result of police pursuits, or indeed any other form of contact
with the police. It is accepted that in the event of a death,
as a result of the activities stated above, there may be an examination
of the service policies. That examination should rightly be carried
out by the bodies charged with this scrutiny, as part of their
statutory duty eg the Independent Police Complaints Commission.
ACPO accepts the comments contained in paragraph
19 of the Government's March 2005 publication that we, as well
as the Crown, should not be exempt where we are in no different
position to other employers or organisations—for example
in relation to our role as employer or occupier of buildings
1.2 The Bill section 4 (1)(c)(i) as drafted
may have implications for police services:
A relevant duty of care, in relation to an organisation,
means a duty owed under the law of negligence by the organisation
…(amongst other things) in connection with the supply of
goods or services (whether for consideration or not).
1.3 Discussion with civil servants has indicated
that the police are not seen as suppliers of a service. However,
there is a counter argument that the act of policing is the provision
of a service to the community. ACPO submit that this issue requires
greater clarity, and that the provision of policing is not, as
far as the legislation is concerned, the provision of a service.
It would be sensible for this clarity to be provided prior to
enactment rather than allowing for expensive legal argument in
the future.
1.4 There is also an issue in relation to
the "carrying on of any other activity on a commercial basis"
[Section 4(1)(c)(ii)]. Where police are carrying out policing
in circumstances where the user pays eg football matches where
the club is being charged for the policing service, is this the
police operating on a commercial basis and therefore liable? Our
understanding is that the term "commercial" is not intended
to cover cost-recovery circumstances, but this is an area where
ACPO seek absolute clarity. We do not think that we should be
liable.
1.5 In recognising the exemption given in
those circumstances where the police act in pursuit of a legal
power or duty, a difficulty could arise where police operate outside
this framework, such as supporting local youth training/activity
schemes within the community. The risk here is perhaps small but
once again ACPO would welcome clarity on whether such activity
would create liability under the act. We do not think that we
should be liable.
2. INVESTIGATIVE
CONSIDERATIONS
2.1 It is implicit in the accompanying explanatory
notes that the Police would continue to lead on investigations
where death occurs because of potential gross negligence by individuals
or companies. Existing working relationships can only be strengthened
by this primary legislation. It is gratefully acknowledged that
the offence has been listed as a Serious Arrestable offence, within
the meaning of the Police and Criminal Evidence Act 1984.
2.2 Consultation has identified weaknesses
in the investigative process arising out of the assumption that
police will lead these investigations. Specifically these weaknesses
relate to the ability of police officers to access the premises
of corporations where material of significant value may be held,
and the ability of the police, to obtain necessary information
regarding the structure and processes within corporations.
2.3 Much of the evidence to support a Corporate
Manslaughter prosecution will be found in the documents created
by that Corporation in connection with their business. In order
to identify the relevant senior managers in accordance with section
2 of the act, the police will also require information as to the
structure, roles and responsibilities, and business processes
within the corporation.
2.4 It would help to speed up the process,
if such information and documentation were supplied or obtained
under a specific power. This would prevent the significant delay
that has historically happened in practice, if we rely on a process
of voluntary disclosure or seizure and then a period of an analysis.
2.5 Currently, material that would be extremely
beneficial to the investigation and prosecution will often fall
within the definition of "Special Procedure Material"
under the Police and Criminal Act 1984, ie material "acquired
or created in the course of any trade, business, profession etc.".
2.6 Access to this material may only be
secured under an order granted by a judge (Schedule 1 PACE), rather
than under warrant issued by a Justice of the Peace. This creates
particular problems in obtaining an appropriate authority to access
the business records of a company that is the subject of an investigation.
2.7 By the time arrangements have been made
to apply for such an order, and a hearing scheduled in front of
a judge, the passage of time may have had a detrimental affect
on the investigation. It is also the case that in normal circumstances,
before such an order can be made, a specific request for the relevant
material should have been made to the organisation involved, and
they must have refused to supply it on a voluntary basis. Some
recent experience suggests that this provision can be used by
suspect corporations to control the rate of supply of material
to an investigation.
2.8 In relation to the gathering of information
to identify the structure, roles and responsibilities, and business
processes within a corporation, this information will often be
in the knowledge or possession of employees of the corporation
itself. In these circumstances a conflict can often arise, between
the interests and liabilities of the corporation, and those of
the individual. Other Agencies charged with the investigation
of corporations, such as the SFO have powers of compulsion so
that this `master/servant' conflict can be overcome.
2.9 It is also anticipated that the use
of experts to examine the records of a suspect corporation would
probably require the use of experts beyond the normal forensic
experts used in examining a crime scene. Our view is that the
investigation of a death potentially caused by corporate mismanagement
would require independent experts to undertake an analysis of
how a company is structured and how it operates and then make
an expert judgement as to whether a `gross breach' may have been
committed. This may involve the use of forensic accountants, business
analysts, Risk Managers, computer experts and others.
2.10 We are concerned that if the investigation
team requires that type of non-police support to accompany the
police searching (for example) a company headquarters, that the
law is currently incompatible with their legal right to enter
the premises.
2.11 It is suggested that consideration
be given to changes in the law to permit:
— Urgent authorities, similar to Schedule
1 PACE, to be granted upon application to a senior police officer
(probably at Assistant Chief Constable level), to enter premises
and seize material where there is a high level of urgency and
where a delay would have a deleterious impact on the investigation;
To be used in conjunction with,
— The ability to compel an individual
or corporation to supply specific information or material (similar
to CJA 1987 S2 onwards), granted on authority of a senior police
officer (probably at Assistant Chief Constable level);
— The use of experts (as described
above) to accompany police and to exercise the same powers as
police whilst on business premises in support of a police investigation
3. COMMENTS ON
THE DRAFT
BILL
ACPO seek consideration of the proposed amendments
and additions in order to make the Bill more effective.
3.1 Senior Manager
Whilst Section 2 of the draft bill defines what
a senior manager is within an organisation, the consultative process
considered that there were two areas that could allow a ready
defence for a corporation. Both deal with the interpretation of
the activities of a person in a senior position within a corporation:
It is felt that the definition should include
the additions in the brackets below:
"A person is a "senior manager"
of an organisation if he plays [or ought to have played] a significant
role in [or had significant responsibility for] . . . etc.
This is intended to address the failure of a
person who holds a key position in a organisation but who is portrayed
by his defence as really quite inept. The current definition would
allow him to claim that he, as a mere figurehead, did not play
"a significant role".
We hold the view that unless those who make
the decisions about how a company is managed are clearly identified,
not only in role but also in the actual decision-making process,
then the first threshold in Section 1 will not be met (and the
prosecution may flounder).
3.2 Gross Breach
The consultative process considered that Section
3(4) should be rephrased to allow a more active interpretation
by a trial judge of the possibility of a jury considering other
matters.
We feel that S. 3(4) is too passive and permits
a judge to not give any direction on the rights of a jury to consider
other matters when reaching its verdict.
Whereas S. 3(2) puts a positive onus on the
jury to consider health and safety breaches (which we support)
the inclusion of S. 3(4) appears to be too passive and we suggest
that the draft be:
"The jury may consider any other matters
they consider relevant to the question"
Similarly the Police Service believes that the phrase
at section 3(2)(b)(iii) "sought to cause the organisation
to profit from that failure" is too narrow and ought to consider
the possibility that the driver for the company activity was to
save money (which is, of course part of a profit cycle, but ought
to be viewed as a separate entity).
It is suggested that this sub-paragraph be redrafted
to include:
— "Sought to cause the organisation
some benefit from that failure"
— "Sought to cause the organisation
prevention of loss or cost from that failure"
3.3 Relevant duty of care
In S.4 (1) there is the inclusion of the word
"or" between sub-paragraphs `b' and `c' but no link
between sub paragraph `a' and `b'. This may merely be a typographical
error.
3.4 Sanction and Secondary Liability
The Bill sets out the sole sanction as a financial
penalty to the company. ACPO would suggest that some consideration
be given to providing a sanction against those individuals established
as having been significant contributors to the gross breach. This
could take the form of a disqualification from holding office
as a director or a position as senior manager for a set period
of time. This would have the benefit of ensuring that the public,
including the bereaved, can identify individuals, that were being
called to account, rather than simply shareholders and tax payers
footing the bill for company fines. Individual failings which
fall short of the very high test required for gross negligence
manslaughter could also be dealt with through such secondary liability
sanctions, perhaps by means of a form of `Show Cause' proceedings
(a legal hearing in which individuals must show cause why they
should not face disqualification or other sanction).
There is no provision in the draft which allows
compensation to be awarded as part of the overall punishment of
corporations convicted of this offence. We believe that a mechanism
should be built into the legislation allowing for the Court to
award financial compensation to dependents of the deceased without
recourse to civil action.
3.5 Remedial Orders
It is unclear why a company that is convicted
at the Crown Court and breaches or fails to comply with a Remedial
Order should be prosecuted at a Magistrate's court. It seems unusual
that an order from a higher court that is ignored is prosecuted
at a lower court.
It seems that the only driver for this would
be the scale of the breach. For instance, if a firm is directed
to undertake some relatively minor work at its premises and fails
to do so, is this minor breach too inconsequential to take up
the time of the Crown Court?
3.6 Armed forces
We have concerns that the exemptions to the
Armed forces may be too broad and should be narrowed considerably.
The key phrase is the connection to "combat
operations". We envisage that a defence argument could be
raised that a wide variety of activities could be covered by this
exemption.
For instance if a soldier dies whilst in the course
of extensive physical activity as part of routine fitness training
would this fall within the scope of "in preparation for .
. . combat operations"?
Is a civilian truck driver, in England who is
moving munitions or other hardware from a warehouse to a cargo
plane for delivery to Iraq, acting "directly in support of
… combat operations"?
We believe this needs further clarification.
3.7 Territoriality
A death that occurs within the jurisdiction
of the courts in England and Wales is liable to prosecution if
the offence is proven.
However whilst it is accepted that the law is
not intended to deal with deaths outside this jurisdiction there
are investigative problems that arise.
If a corporation headquarters is in Germany
and the death occurs in England will existing powers and international
co-operation laws be sufficient to allow investigators the right
to investigate in that other country?
4. CONCLUSION
ACPO considers this proposed legislation to
be significant and would seek to continue to engage in the scrutiny
process in order to ensure that the enacted legislation is effective
and fit for purpose.
19 Septmber 2005
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