18. Memorandum submitted by Niall Tierman
SUGGESTIONS AND
IMPROVEMENTS
1. Jurisdiction
In a global economy with ownership of companies
often being separate from the location of the work, and the fatality,
there is a problem with some aspects of the offence not occurring
in England or Wales.
The Draft Corporate Manslaughter Bill is only
applicable in England and Wales, s16. This means that in terms
of territorial coverage the offence will apply if the injury that
results in death occurs in a place where the English courts have
jurisdiction. This will be the case if the management failure
occurred either here or abroad, as might be the case with a foreign
company operating in England. However, there is a problem in that
there is no extra-territorial jurisdiction proposed. There would
be huge practical difficulties in trying to extend jurisdiction
over the operations abroad of English companies. Still, this means
that if the company is managed in England and the fatality happens
at an Eastern European site this legislation could not be used.
The prosecution may not want to be stepping on the toes of the
local laws yet many deaths could go unpunished.
What often happens in such a situation is that
the English company will employ a local company and instruct them
to comply with all local laws. This is a problem as it could effectively
get around the legislation and means that a "Bhopal"
situation would not be liable.
A more likely problem could be that if an English
employee travelled to a foreign site and suffered a fatality,
Corporate Manslaughter charges could not be brought. On the other
hand, the Health and Safety at Work Act might still be used in
this situation.
A situation such as Zeebrugge would be covered
by s16(2)(b) if the deaths occurred on a British ship registered
under the Merchant Shipping Act 1995. The Piper Alpha scenario
would also be covered due to s16 (2)(e).
The intention of the Bill is that it is the
decisions about processes that are punished, yet the lack of extra
territorial jurisdiction means the decisions could be made with-in
the court's jurisdiction, lead to a death and still go unpunished.
2. Foreign companies
Another potential loophole is if the injury
occurs in England and the company is based abroad then the legislation
could not be used. It is unlikely that extradition proceedings
would be brought to bring managers to England from abroad.
What can often happen in such a scenario is
that the foreign parent company would set up operations in England
or purchase an existing English company. The management decisions
would thus be made within the jurisdiction and so a prosecution
could be brought. Nonetheless, there are many potential fatalities
that are not covered.
3. Changed ownership
Just as Railtrack changed to Network Rail, other
companies may change ownership between the date of the death and
the prosecution. There is a question about whether the new firm
should be affected by the previous companies errors. This potential
problem could be resolved by the fact that the judge can levy
a fine to an appropriate level, or can issue a remedial order
if the error has not been resolved by the new company.
4. Timing
Companies will not be able to be prosecuted
for "anything done or omitted before it comes into force",
S15(2). However, there could be a potential problem if the management
decisions are taken before the Act comes into force and yet the
incident leading the fatality is after the Act is in force. The
company could try to defend itself by showing that the "way
in which the organisation's activities are managed or organised"
(s1(1)) occurred before the change in the law. The prosecution
would have to show that there is a duty to change the procedures
of the company after the Act even though the decision that is
the actus reus of the offence occurred before it was illegal.
5. Gross breach and awareness
There would be merit in allowing non-disclosure
to the prosecution of company procedures. Otherwise firms making
an effort, but where managers did not follow their own company's
advice, could be more easily seen to commit a gross breach, and
hence be more easily convicted, than a firm that does not even
have procedures in place. In s3(2)(b)(i) the proposed test is
conduct falling far below what can reasonably be expected. This
should probably be conduct that ought to be reasonably expected,
so that a firm is not more harshly treated just because it has
high in house standards. An example is that the HSE see most work
place deaths as preventable, but some construction companies have
taken the position that all work place deaths are preventable.
This could make prosecuting these firms easier than a company
that has lower standards in its procedures.
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