House of Commons - Home Affairs

Select Committee on Home Affairs Written Evidence

162. Memorandum submitted by Professor Frank B Wright

SUMMARY COMMENTS

Proposals for a new offence of corporate manslaughter have been under consideration for a number of years, because the current law in this area is ineffective. This proposed new offence could introduce an important new option for the prosecution of the worst forms of industrial negligence by corporations, whether they be in the public or private sectors. The current law operates too restrictively and fails to deliver an effective sanction but as the Home Secretary as observed the proposed new offence must complement, not replace, other forms of redress such as prosecutions under health and safety legislation. Moreover, this must be "fit for purpose".

The current provisions appear to go beyond the measures proposed by the Law Commission. These new proposals will inevitably give rise to difficulties.

First, the causal connection between the management failure envisaged and the death will be difficult to find. In fact, cases taken under this proposed statute would succeed only against the smallest of organisations. As has been said elsewhere there must be:

"A standard causal—connection between the acts or omissions constituting the management failure and the death(s), which have occasioned the prosecution."

Second, the definition of senior manager lacks an appropriate focus. In a large corporation the manager would need to be very senior indeed to have the influence described. Why are directors not identified? What is the position of Board Chairs and non-executive directors? What is the position when true control is to be found in the holding company? The position of Ministers and senior civil servants, local authority councillors and their leaders in the context of this legislation also remains unclear.

Third, the use assigned to health and safety legislation, approved codes of practice and guidance material is confusing. These provisions are not comprehensive and they were not designed for this purpose. Moreover, statutes, regulations, approved codes of practice, codes and guidance notes have different and carefully defined legal standing.

Fourth, senior managers whose behaviour has led to a conviction of corporate manslaughter will be stigmatised. They will be publicly associated with the commission of a very serious offence, even though not charged. Whilst it is clear that an individual cannot be guilty of aiding, abetting, counselling or procuring an offence of corporate manslaughter, will they be charged with another offence or offences under the Health and Safety at Work etc., Act 1974 or related legislation? Will they be disqualified under section 2, Directors Disqualification Act 1986?

Regard should be had to the approaches adopted by other European Union jurisdictions. Many have based liability on models of direct liability and vicarious liability. Others, for example, the Netherlands and Finland, have extended the scope of liability and allowed for the possibility of holding corporations liable without identifying particular individuals as responsible for the crime. These ideas are perhaps worthy of closer consideration by UK policy makers.

Indeed, given the recent penalties handed down in HMA v Transco 2005 (Larkhall) and R v Balfour Beatty and Railtrack 2005 (arising out of the Hatfield derailment) following convictions under the Health and Safety at Work etc., Act 1974 one is bound to enquire whether the "side effects" identified above are worth the risk, whether by pressing forward with this measure the United Kingdom is over-regulating and whether health and safety standards will thus be improved in overall terms.

COMMENTS

1. Proposals for a new offence of corporate manslaughter have been under consideration for a number of years, because the current law in this area is ineffective.[239] In "Munkman on Employers Liability"[240] Professor Smith[241] has said:

242

243

244

2. This proposed new offence could introduce an important new option for the prosecution of the worst forms of industrial negligence by corporations, whether they be in the public or private sectors. The current law operates too restrictively and fails to deliver an effective sanction but as the Home Secretary as observed[245] the proposed new offence must complement, not replace, other forms of redress such as prosecutions under health and safety legislation. Moreover, this must be "fit for purpose".

3. In 1996 the Law Commission in its Report: "Legislating the Criminal Code: Involuntary Manslaughter"[246] recommended that:

"(1) there should be a special offence of corporate killing, broadly corresponding to the individual offence of killing by gross carelessness.

(2) that (like the individual offence) the corporate offence should be committed only where the defendant's conduct in causing death falls far below what could reasonably be expected;

not

(4) that, for the purposes of the corporate offence, a death should be regarded as having been caused by the conduct of a corporation if it is caused by a failure, in the way in which the corporation's activities are managed or organised, to ensure the health and safety of persons employed in or affected by those activities."

4. CAUSATION

The Law Commission recommended that, for the purposes of the corporate offence, it should be possible for a management failure on the part of a corporation to be a cause of a person's death even if the immediate cause is the act or omission of an individual.

5. POTENTIAL DEFENDANTS

The Law Commission recommended that the offence of corporate killing should be capable of commission by any corporation, however and wherever incorporated, other than a corporation sole.

The Law Commission recommended that the offence of corporate killing should not be capable of commission by an unincorporated body.

The Law Commission recommended that the offence of corporate killing should not be capable of commission by an individual, even as a secondary party.

6. TERRITORIAL JURISDICTION

The Law Commission recommended that there should be liability for the corporate offence only if the injury that results in the death is sustained in such a place that the English courts would have had jurisdiction over the offence had it been committed by an individual other than a British subject.

7. CONSENTS

The Law Commission recommended that there should be no requirement of consent to the bringing of private prosecutions for the corporate offence.

8. MODE OF TRIAL

The Law Commission recommended that the offence of corporate killing should be triable only on indictment.

9. ALTERNATIVE VERDICTS

The Law Commission recommended that, where the jury finds a defendant not guilty of any of the offences, it should be possible . . . for the jury to convict the defendant of an offence under section 2 or 3 of the Health and Safety at Work etc. Act 1974.

10. REMEDIAL ACTION

The Law Commission recommended that:

(1) a court before which a corporation is convicted of corporate killing should have power to order the corporation to take such steps, within such time, as the order specifies for remedying the failure in question and any matter which appears to the court to have resulted from the failure and been the cause or one of the causes of death;

(2) the power to make such an order should arise only on an application by the prosecution (or the Health and Safety Executive or any other body or person designated for this purpose by the Secretary of State, either generally or in relation to the case in question) specifying the terms of the proposed order; and

(3) any such order should be on such terms (whether those proposed or others) as the court considers appropriate having regard to any representations made, and any evidence adduced, by the prosecution (or any other body or person applying for such an order) or on behalf of the corporation.

11. CORPORATE LIABILITY FOR THE INDIVIDUAL OFFENCES

The Law Commission recommended that the ordinary principles of corporate liability should apply to the individual offences proposed.

The Government subsequently published a consultation paper in response to the Law Commission's recommendations set out above.[247]

12. CURRENT PROVISIONS

The current provisions appear to go beyond the measures proposed by the Law Commission. These new proposals will inevitably give rise to difficulties.

13. First, the causal connection between the management failure envisaged and the death will be difficult to find. In fact, cases taken under this proposed statute would succeed only against the smallest of organisations. As has been said elsewhere there must be:[248]

"A standard causal—connection between the acts or omissions constituting the management failure and the death(s), which have occasioned the prosecution."

14. Second, the definition of senior manager lacks an appropriate focus. In a large corporation the manager would need to be very senior indeed to have the influence described. Why are directors not identified? What is the position of Board Chairs and non-executive directors? What is the position when true control is to be found in the holding company? The position of Ministers and senior civil servants, local authority councillors and their leaders in the context of this legislation also remains unclear.

15. Third, the use assigned to health and safety legislation, approved codes of practice and guidance material is confusing. These provisions are not comprehensive and they were not designed for this purpose. Moreover, statutes, regulations, approved codes of practice, codes and guidance notes have different and carefully defined legal standing.

16. Fourth, senior managers whose behaviour has led to a conviction of corporate manslaughter will be stigmatised. They will be publicly associated with the commission of a very serious offence, even though not charged. Whilst it is clear that an individual cannot be guilty of aiding, abetting, counselling or procuring an offence of corporate manslaughter, will they be charged with another offence or offences under the Health and Safety at Work etc., Act 1974 or related legislation? Will they be disqualified under section 2, Directors Disqualification Act 1986?

17. Regard should be had to the approaches adopted by other European Union jurisdictions. Many have based liability on models of direct liability and vicarious liability. Others, for example, the Netherlands and Finland, have extended the scope of liability and allowed for the possibility of holding corporations liable without identifying particular individuals as responsible for the crime. These ideas are perhaps worthy of closer consideration by UK policy makers.[249]

18. Indeed, given the recent penalties handed down in HMA v Transco 2005 (Larkhall) and R v Balfour Beatty and Railtrack 2005 (arising out of the Hatfield derailment) following convictions under the Health and Safety at Work etc., Act 1974 one is bound to enquire whether the "side effects" identified above are worth the risk, whether by pressing forward with this measure the United Kingdom is over-regulating and whether health and safety standards will thus be improved in overall terms.

October 2005