27. Joint memorandum submitted by
Rebecca Huxley-Binns and Michael Jefferson
We are grateful for the opportunity to comment
on the Home Office's paper Cm 6497, March 2005. We do not comment
separately on the Regulatory Impact Assessment except to note
that if the outcome of the bill is to make only an extra five
or so companies liable per year the gestation period has been
inordinately long and to mix metaphors completely a molehill has
been created and perhaps an Aunt Sally instigated. There are also
some aspects which fall beyond our concerns as criminal and employment
lawyers such as the requirement that the consent of the DPP is
needed for prosecutions. We comment in a series of points in no
particular order of importance but the order is one we see as
logical in view of the drafting of the bill. A preliminary remark
of ours would, however, be to say that the paper would have been
easier to respond to had there been a series of questions and
an attempt to express where policy issues had already been decided.
Such is the norm in criminal law projects under the auspices of
the Law Commission and this good practice was followed by the
DTI earlier this year in respect of its second consultation on
revision to the Transfer of Undertakings (Protection of Employment)
Regulations 1981 SI 1981/1794. We recognise that not all consultation
papers need be in the same format but the Home Office may receive
more detailed responses in relation to the issues on which it
desires commentary, and responses would not be directed at issues
where policy but not, say, wording had already been agreed. We
make these comments in a spirit of being helpful.
We fully endorse the views that current law
based on the identification doctrine does not act in accord with
public opinion as to how the law should be and that it is highly
detrimental that the present law should find liability in small
companies but not large ones. We do not comment on considerations
with which we agree eg the proposal that "senior managers
. . . were aware, or ought to have been aware, of the risk of
death or serious harm" (cl 3(2)(b)(ii)), which we consider
is a formulation which keeps the offence a serious one and in
line with murder where a mental state of intent to cause serious
harm suffices: certainly this proposal now makes it even more
necessary for a revision of gross negligence manslaughter where
only a risk as to death suffices. We found the table on p 44 very
helpful and express the hope that similar tables could be provided
in other law reform projects. We are pleased that the Government
considers the topic, after nearly a decade of delay, to be of
such importance that it formed part of the Queen's speeches of
November 2004 and May 2005.
1. While the draft bill probably had to
be restricted to killings in light of its genesis (and we would
criticise the Law Commission on the same ground), we strongly
consider that it is inappropriate to reform one area of wrongdoing
without dealing with others. The example we would use is that
of a killing and a serious injury arising out of the same facts.
To take a Sheffield example, if two workers suffer from a splash
of hot metal at a steel foundry occasioned by a gross breach by
a senior manager as defined in the bill (but not so high in the
corporate hierarchy as to be identified with the company), then
should the bill be enacted, it is absurd that if one died the
company would be convicted of the proposed offence, but the company
would not be liable for the other worker's serious injury—who
was saved in this hypothetical case from death only by the rapid
intervention of a skilled paramedic—because the actions/omissions
and state of mind of the manager in question were not identified
with the company under the doctrine whereby a company is liable
for the actus reus and mens rea of its directors
and similar high officers (see Tesco v Nattrass for common
law offences and Meridian for statutory ones). We consider
that any judge will find great difficulty in instructing a jury
on the law in a trial arising out of the same facts where liability
is founded on wholly different bases.
2. This is not the place to call for a review
of manslaughter by gross negligence or of any extension of gross
negligence from manslaughter to non-fatal offences, and we bear
in mind Misra, a Court of Appeal decision from last year
to the effect that the crime of gross negligence manslaughter
(whether committed by a natural or juristic person) is not contrary
to the European Convention on Human Rights and therefore to the
Human Rights Act 1998. Nevertheless in light of the recent House
of Lords' decisions in B v DPP and G among others
expressing a very strong predilection for criminal liability to
be based on subjective mens rea, we would have expected
the paper to have defended its preference for objective (negligence)
state of mind for this offence.
3. This point is linked with the first one
and can be seen as a subset of it. The paper at paragraph 4 of
the introduction says quite rightly that the proposed crime is
"extremely grave". It is we add aimed at extremely grave
events such as transport "disasters" over the last 20
years. However, to use the example in point 1 we see no reason
for basing liability for this form of manslaughter on the current
gross negligence manslaughter but not having a similar non-fatal
offence. In the instance given, if the proposed offence were enacted,
the company would be liable for the killing but not for the harm
short of death. Leaving aside the proposed offence and considering
the current offence of gross negligence manslaughter and the current
identification doctrine, even if the creator of the danger were
a director, the company would not be liable for negligently injuring
the victim even under the identification doctrine because there
is no crime of grossly negligently injuring the victim. This criticism
relates to the issue already raised of reforming one aspect of
manslaughter without considering the context. To concretise the
point, even if the NCB had been prosecuted and found liable for
its gross negligence in killing 144 persons at Aberfan, it could
not have been found liable for grossly injuring any survivors
because there is no such crime as grossly negligent grievous or
actual bodily harm. The same applies eg to the King's Cross escalator
fire (36 killed) and the sinking of The Herald of Free Enterprise
at Zeebrugge (192 killed) as well as non-transport killings
such as occurred in some of the (so far) six successful prosecutions
for corporate manslaughter under the current identification doctrine.
4. We make three points about the name of
the offence, though the effect goes much wider. First, we consider
that "manslaughter" is a term which should not be used
in a modern system of criminal law. It is as outdated as "actual"
and "bodily" in actual bodily harm found in s47 of the
Offences against the Person Act 1861 ("actual" has no
meaning and "bodily" includes the psychiatric").
The Law Commission preferred "killing" and so do we.
The Law Commission's revised draft Criminal Code is due out later
this year and we would hope that the language of the Code is fully
modernised (in the same way that the outmoded term "conversion"
was replaced by "appropriation" in the Theft Act 1968
and the term "malicious" by "unlawful" in
the Criminal Damage Act 1971). It cannot be right that a modern
statute which has to be explained to a jury and to magistrates
contains outdated language, language that is not used in ordinary
parlance. We note that criminal law is replete with such inappropriate
language, the principal one being perhaps "malice aforethought"
as the mental element for murder despite the fact that neither
malice nor aforethought is necessary. We think that the bill should
mark a step in the modernisation of English and Welsh criminal
law both as to the doctrinal basis of the proposed offence and
as to its terminology.
5. The second point is that we would hope
that the Home Office would look again at its decision to exclude
unincorporated organisations from coverage. If it did so, the
title of the bill would have to change from that of corporate
manslaughter to something wider. If a person is killed as a result
of a gross breach by a senior official, again as defined in the
bill, but that official is an official of an unincorporated institution,
why should it matter that the body does not take corporate form?
To say that there is currently no difficulty invites the criticism
that surely such an event will happen one day, perhaps soon. If
one takes the facts of Zeebrugge, why should it matter that the
ferry was operated by Townsend Thorensen (later P&O) rather
than one person or an unincorporated body? We note that the 2000
proposals of the Government included unincorporated institutions
and there is no policy-based reasoning the paper for excluding
them.
6. Thirdly, to call the offence one of "corporate"
manslaughter is something of a misnomer if for instance Government
departments such as the Home Office itself are liable to prosecution.
To say that the Home Office or another government body is being
prosecuted for corporate manslaughter does not to us represent
the public's perception of "corporate" killing or manslaughter.
7. The work of Celia Wells, Professor of
Law at Cardiff University and author of the standard text in the
UK on corporate criminal liability, demonstrates, convincingly
to us, that when the public speaks of "corporate manslaughter",
it does not mean (only) that the public wants the law of manslaughter
to be fully extended to companies but that it wants directors
(and presumably other senior officers) to be legally susceptible
to going to jail for their wrongdoings. If the Home Office believes
that it is acting in conformity with public opinion we suggest
that that is only half the story. We would hope that in the near
future it will investigate the personal responsibility of directors
and other senior officers for killing and, we propose, for causing
injury. There is a good deal of helpful law and comment in the
USA and we think that English & Welsh law can avoid issues
such as "Vice-President responsible for going to gaol"
("scapegoating") found in the US literature. We note
that the proposed offence cannot be aided by personal defendants
(cl 1(6)), but we consider that there should be a separate offence
of killing etc by directors and senior officers. We note that
the 2000 HO document (Reforming the Law on Involuntary Manslaughter
www.homeoffice.gov.uk/docs/invmans.html) did relate that the
Government was concerned with the individual criminal liability
of directors but no proposals have been brought forward. We recognise
the concerns of bodies such as the CBI and the DTI (which apparently
lead to the previous Home Secretary's retreat from the commitment
to legislate against directors who caused death) but hold that
where such responsibility for actions and omissions is commensurate
with the wrongdoing, individual directorial liability contrary
to statute is well grounded in legal principle and theory. The
crime of gross negligence manslaughter as currently formulated
may not apply because for example there may not have been a risk
of death. At present there is the possibility of a prosecution
of a director under s37 of the Health and Safety at Work Act 1974
but the sanction is only a fine; there is the possibility of action
under the Company Directors Disqualification Act 1986 but use
has been minimal: eight in total, we believe, as of 2004. Perhaps
more dynamic use of the full range of existing legislation in
the past could have appeased some of the critics of the perceived
inaction of the authorities as regards corporate criminal wrongs.
8. We note that the bill is different from
the 1996 Law Commission's proposals (Legislating the Criminal
Code: Involuntary Manslaughter Law Com Report no 237, www.lawcom.gov.uk/files/lc237.pdf)
in several regards, one of which is that the proposed test is
restricted to senior management. In light of current HRM practices
of delegating and empowering we consider that companies may be
able to escape liability by introducing evidence that the management
of health and safety matters has been delegated so far down the
corporate hierarchy that they are not liable for the offence proposed.
9. While we welcome the recommended extension
of remedial orders to corporate killing cases, again we see no
difference between killing and injuring. To extend health and
safety measures in one area but not in another—and this
is exacerbated where the saving from death is fortuitous—is
indefensible. The fact of death, while irreversible, is not conclusive
as to which sanction or other "remedy" should be available.
One of us has written in the UK perhaps the most searching examination
of sanctions available in England & Wales and the USA (see
the Journal of Criminal Law for 2001) and while loath to
refer to such material, we think that the proposed reform can
best be described as timid in comparison with that in other jurisdictions
including Commonwealth ones. There is also no discussion whatsoever
of "overspill", ie the effect of fines against companies
on their trading position including creditworthiness, on their
employees and on consumers. Sentencing guidelines will have to
be developed as they have been at least for Federal offences in
the USA and we would refer the Home Office to s 718.21 (fines)
and 732.1 (3.1) (probation) of the Canadian Criminal Code. There
is also no discussion of the adverse effect of prosecution and
conviction under the proposed law or of any effect on insurance.
We see the possibility here of the Home Office giving a lead to
States throughout the common law world.
10. Again, while we welcome the removal
of Crown immunity (any line, for example, between deaths in private
prisons and state-run ones would be indefensible), we criticise
the failure to extend the offence to public policy matters. Whilst
we accept there are sound policy reasons in the law of torts for
such an exception to the duty of care relationships, we consider
both that the same principles do not apply in this context and
further that the possibility, and it is only a possibility, of
judicial review with its three months' time limit and with its
requirement that only victims may commence proceedings not commensurate
with the wrong done, namely, causing death. We note the clause
which excludes the armed forces from liability for management
failure at a senior level. If there is say a tactical exercise
with troops, we do not see why the services should remain immune
from prosecution if as a result of a gross breach by a senior
manager a soldier is killed. We note the extension of sex discrimination
law into the military and consider just as women were for a long
time banned from serving on board Royal Navy ships but now do
so, the exclusion of the armed forces is unacceptable in 2005.
11. We note the use of the word "substantial"
in cl 2(a) and (b). The non-criminal law reader might expect,
particularly in light of its context ("whole or a substantial
part") that "substantial" would mean something
like "almost all" but its meaning in other areas of
criminal law is that of "more than trifling or trivial".
This meaning is not intended in this paper but the context alone
may be insufficient to make the term be read as meant. (For example,
murder is very serious offence and one commits the actus reus
if one substantially causes the victim's death; one might
expect "substantial" in light of the severity of the
offence and the mandatory life sentence to be read very narrowly
as falling only slightly short of totally causing death but cases
have for many years held that provided the accused has more than
minimally caused the victim's death, he or she has substantially
caused it. See for example Notman.) Besides the definitions
found in cll 2-5 we suggest that the concept of "substantial"
also needs to be defined. We note the concerns of the CBI that
who is a "senior manager" ought to be defined clearly.
12. We say similarly about "significant"
in cl 2. If the question is for the jury as it is, one jury may
say this actor's role was significant and another jury may hold
to contrary effect about another actor on exactly the same facts
and neither determination is appealable.
13. Continuing our theme of coverage, we
are unsure of the impact of the proposals on previous fact situations.
As is well-known the assistant bosun was asleep at the time when
the ship was sailing out of the harbour in the Zeebrugge incident.
He is not in the bill's terms a "senior manager"; the
director who had heard about the demand for lights signifying
to the bridge is a senior manager; what about the captain of the
vessel? Surely it cannot matter in view of the origin of these
proposals how large the company is as to whether the captain manages
a substantial part of the activities? If it is uncertain whether
such a person as the captain of a ship is a senior manager, surely
this points to a defect in drafting? We think that the definition
does cover the captain in the Zeebrugge facts (but we are uncertain)
but we suggest that since the company as a whole was in the words
of the maritime report by Sheen J infected by "sloppiness",
the company ought to be held liable for the proposed offence without
the requirement for determining whether a certain person was a
senior manager or not. We do not further consider the basis of
this offence because we take it for granted that the policy or
juridicial basis of this offence is not to be changed at this
stage.
14. We regret that the Home Office is proposing
a restriction on the territorial extent of this offence. If a
British subject is triable in the English and Welsh courts for
murder or manslaughter committed anywhere in the world, we would
expect an English company to be so triable too. No policy concerns
are advanced for such a distinction.
15. We believe that proposals for reform
of the law in Scotland are currently in stasis and we would hope
that a joint England & Wales and Scotland approach would be
appropriate, though we recognise that this issue is a devolved
matter. It should not matter whether the company is based in Berwick
or Dunbar, in Carlisle or Lockerbie. The Piper Alpha explosion
should not be treated differently if it occurred in "Scottish"
or "English" waters.
As a summary we quote Brendan Barber, the General-Secretary
of the TUC, at the Centre for Corporate Accountability's conference
on the bill on 13 June 2005 as related in a TUC press release
of that day: "I welcome the proposed legislation. It has
been far too long in coming. Most of what has been proposed has
a lot of merit but the main problem for us is not what is in the
bill, but what is not in the bill. What we need is not just a
technical clarification of manslaughter law, what we need is a
whole cultural change which actually shows that both Government
and society recognise that working people need justice and protection.
A strong framework of laws is the hallmark of a civilised society.
While this is a very important step in the right direction, there
is still a long way to go."
16 June 2005
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