House of Commons - Home Affairs

Select Committee on Home Affairs Written Evidence

51. Memorandum submitted by the Law Reform Committee of the General Council of the Bar

THE BACKGROUND

1. There has been public concern for many years that corporate responsibility for death has not been met by successful prosecution of any large corporate bodies. The same concern has been expressed in respect of the lack of accountability of the Crown and other public bodies.

2. The attempts to take action over the years stuttered to a halt at various stages following a number of disasters including the Herald of Free Enterprise Disaster, The King's Cross Fire, the Clapham Rail Crash and The Southall Rail Crash.

3. In 1987 the Herald of Free Enterprise capsized as it left the harbour at Zeebrugge, 150 passengers and 38 crew were killed. A coroner's inquest jury returned verdicts of unlawful killing. Many of the victims' families made it clear they wished to see the company directors of the shipping line (P&O which had taken over Townsend Thoresen) face prosecution, and not individual employees[28]. Following a public inquiry Mr Justice Sheen published a report in July 1987[29] which identified a "disease of sloppiness" and negligence at every level of the company's hierarchy.

4. Charges of manslaughter were laid against the company. A welcome confirmation of the law was achieved when the trial judge, Turner J, ruled that the company could be held criminally liable for manslaughter, that is, the unlawful killing by a corporate body of a person[30].

5. However, the prosecution of P & O for corporate manslaughter ultimately failed, as it has done in subsequent prosecutions of large companies, since the Courts have ruled that a prosecution can only succeed if within the corporate body a person who could be described as "the controlling mind of the company" could be identified as responsible, and that the identified person was guilty of gross criminal negligence.

6. The Law Commission, after a consultation period[31], reported in March 1996: Legislating the Criminal Code: Involuntary Manslaughter. Law Commission Report No 237. [32]A large part of the report was devoted to corporate manslaughter. [33]

7. The Law Commission proposed a draft Bill in 1996, broadly similar in effect to the present draft Bill now to be laid before Parliament, and proposing an offence of "corporate killing". It was based on the premise that a death should be regarded as having been caused by the conduct of a corporation if it was caused by a failure in the way in which the corporation's activities were managed or organised to ensure the health and safety of persons employed or affected by those activities and that such conduct fell far below what could reasonably be expected of a corporation in the circumstances[34].

8. The Law Commission recommended that the offence of corporate killing should be capable of commission by any corporation, however and wherever incorporated (ie including abroad) other than a "corporation sole"[35], but not to unincorporated bodies or by an individual even as a secondary party[36]. It made further recommendations as to jurisdiction, consent to prosecution, mode of trial, alternative verdicts and powers on conviction. [37]

9. In 1997, over a year after the Law Commission had reported, a high speed train from Swansea crashed into a freight train at Southall. Seven people were killed and over 150 injured. The train company operating the high speed train (Great Western Trains) was indicted on seven counts of manslaughter, but, after a ruling by Scott Baker J, no trial took place. The decision was referred to the Court of Appeal.

10. In February 2000, the Court of Appeal was constrained to rule "unless an identified individual's conduct, characterisable as gross criminal negligence, can be attributed to the company the company is not, in the present state of the common law, liable for manslaughter." [38]The Court referred to the Law Commission's analysis of the law (by then four years after the Law Commission had reported) and declined to alter the law in the way sought by the Attorney-General, indicating that such a change in the law was clearly a matter for Parliament.

11. In May 2000 the Government published the Consultation Paper Reforming the Law on Involuntary Manslaughter: The Government's Proposals[39] based on the Law Commission's proposals of 1996. The Government's proposals were wider than those of the Law Commission. The Government's proposals included:

(b) that the health and safety enforcing authorities, and possibly others, should have the powers to investigate and prosecute the new offence in addition to the Police and CPS;

(c) a proposal that individuals responsible for the management failures should be subject to disqualification from acting in a management role in any undertaking carrying on a business or activity in Great Britain; and

12. Over 150 responses were received by the Home Office. These came from a wide range of organisations covering industry, unions, the public sector and victims' groups, as well as from the Bar Council and members of the public. A summary of the responses has been published. [42]There was strong support for reform of the law; support for a wide application of the offence to cover all undertakings, including the Crown; divided views on the issue of individual liability; and little overall consensus on the issue of investigation and prosecution, save that it was agreed that whichever agency took the lead in investigating and prosecuting the new offence, there would need to be detailed working protocols in place to ensure effective partnership.

13. In January 2005 the trial began of five rail managers and the company Balfour Beatty Rail Maintenance (which employed two of the managers), charged with manslaughter over the death of four men in the Hatfield Train Crash of 2000. [43]The Crown opened its case against the company on the basis that one manager, a civil engineer, was sufficiently senior that his acts were acts of omission of the company. [44]The trial continues and we are unable to comment further.

DRAFT BILL TO CREATE A NEW OFFENCE OF CORPORATE MANSLAUGHTER

14. In March 2005 the Government produced its proposals Corporate Manslaughter: The Government's Draft Bill for Reform.

15. The Bill is in draft, and accompanied by a Consultation Paper, to allow for a further period of consultation and comment "in this complex area affecting the criminal liability of organisations".

16. The accompanying introduction to the Bill sets out the intended proposal for a new offence of corporate manslaughter:

— the starting point is the current offence of gross negligence manslaughter, which applies where a duty of care is owed at common law (in the context of the tort of negligence); and

— such duties include the duties owed by employers to employees, transport companies to passengers, manufacturers to the users of products, the duties owed by construction companies and those owed by a range of other service providers.

17. The proposal is for an offence that applies if the way in which any of the activities of an organisation are managed or organised by its senior managers so as to cause the death of a person and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

18. An organisation is defined as a corporation or a government department or other body listed in the Schedule to the Bill. [45]

19. The organisation owes a relevant duty of care—which means a duty owed under the law of negligence:

20. Whether for the purposes of the new offence an organisation owes a duty of care to a particular individual is a matter of the law of negligence, and by clause 4(3) is a question of law, and the judge must make findings of fact necessary to decide that question.

21. The new offence is reserved for cases involving a gross failure that causes death. The test for "gross" is where the conduct falls far below what can reasonably be expected of the organisation in the circumstances[50]. Lesser failures can be adequately dealt with under the Health and Safety legislation.

22. We submit that, subject to the rare case when a Judge may intervene to rule that no jury properly directed could conclude that the conduct fell far below what can reasonably be expected, the decision is rightly one for the good sense of the jury.

23. We recognise that the concept of behaviour falling "far below" is often difficult to define in the abstract, but the essence of the test is applied daily in respect of dangerous driving and causing death by dangerous driving. Whilst most jurors either as drivers, passengers, or pedestrians are familiar with a standard applicable to road users, and can seek guidance from the Highway Code, they are capable of applying the standard without expert evidence; clearly they may need considerably more help with the standard applicable in a corporate environment, whether factory or shop, train or ship.

24. That assistance is helpfully provided in clauses 3(2) to 3(4).

25. Clause 3(2) directing that the jury must consider evidence of failure to comply with any relevant health and safety legislation or guidance, (this is defined in clause 3(3) to include not only the Health and Safety at Work etc Act 1974 but also all other legislation and guidance on health and safety) and if so:

(a) how serious was the failure to comply; and

(b) whether or not the senior managers of the organisation:

(i) knew or ought to have known that the organisation was failing to comply with that legislation or guidance;

(ii) were aware, or ought to have been aware of the risk of death or serious harm posed by the failure to comply;

(iii) sought to cause the organisation to profit from that failure.

26. We are unsure if the sub-clauses (a) and (b)(i) to (iii) are intended to be cumulative or separate. We submit that each is sufficiently serious to be regarded as significant, as well as it being right for the jury to consider two or more together, and clarification is therefore required as to how these matters are to be treated.

27. It is suggested in the Consultation Paper in respect of clause 3(2)(b)(i) of the draft Bill that the knowledge, or imputed knowledge, of the failure to comply, might be evidenced by warnings from health and safety enforcement authorities, prohibition or improvement notices or previous convictions for health and safety offences related to the activities causing death. We respectfully agree.

28. We would submit that to give effect to the use of previous conduct as relevant material for the jury to consider, provision will need to be made for Part 11 Chapter 1 of the Criminal Justice Act 2003 (sections 98-113) to apply where the Defendant is not a person but is an organisation, within the meaning of this Bill.

29. Clause 3(2)(b)(ii) provides the test of foreseeability. The Law Commission[51] had rightly pointed out that the corporate body can have no mens rea, but that would not prevent juries finding in appropriate circumstances that the risk was or ought to have been obvious to an individual or group of individuals within the company who were, or should have been, responsible for taking safety measures.

30. We agree that the jury should be able to consider the evidence not only in respect of those senior managers who were aware of the risk of death or serious harm posed by the failure to comply, but also in respect of those senior managers who ought to have been aware, but turned a "blind eye" to such risks.

31. Clause 3(2)(b)(iii) raises an important consideration, and follows the warning given by the Law Commission that although businesses are run with a duty to shareholders, this should not be at the expense of the duty to run a safe business: "A company must not cut corners in its desire to make profits for its shareholders, and in particular it must not cut overhead costs at the expense of safety. [52]" This sub-clause considers the motive behind the breach, and whilst it may often be a case of inferences being drawn from other evidence, for example a reduction in staffing, there may be direct evidence of a cut in the budget for a particular area of the business, following which the standards of safety are reduced.

32. In addition to the provision of matters the jury must take into account, a wide discretion is conferred by Clause 3(4) which provides that the jury may have regard to "any other matter they consider relevant to the question".

— There has been much debate about the cost of introducing train protection systems and the time and disruption it may take to install such a system into a fully operational activity. In this regard, in relation to a particular train protection system there may be no health and safety legislation or guidance. Nevertheless, it would appear to be open to the jury to consider the failure to install such a system as one of "any other matters they consider relevant to the question" under clause 3(4). A business making very large profits and failing to upgrade its safety systems may find a jury is less sympathetic than it would be to an organisation that is barely making ends meet and simply does not have the capital or investment opportunity to upgrade.

33. The type of body liable for an offence is described as an "organisation":

— Such an organisation would be prosecuted for the offence if a gross failing by its senior managers to take reasonable care for the safety of their workers, or members of the public, caused a person's death.

— The new offence would apply (as now) to all companies and other types of incorporated body (including many in the public sector, such as local authorities).

— Action against parent and other group companies should be possible but only where their own management failures were a direct cause of death.

34. The offence is based on "management failure":

— failures in the way an organisation's activities were managed or organised, rather than any immediate negligent act by an employee (or potentially someone else) causing death;

— the offence is designed to capture truly corporate failings in the management of risk, rather than purely local ones;

— the management failure must amount to a gross breach of the duty to take reasonable care—a high threshold; and

— the management failure must have been a cause of death, more than a minimal contribution to the death.

35. The draft Bill has not followed the recommendation of the Law Commission that there should be a clause to deal with a concern that an intervening act would break the chain of causation.

— We suggest that the inclusion of such a clause in the Bill would give statutory effect to the development in the case law and have the merit of clarity within the provisions specifically drafted for the purpose of corporate manslaughter.

— Further, we suggest that the inclusion of such a clause would also underline the proposed aim set out in paragraph 26 of the Introduction to the Bill. The stated aim is that the test for management failure "focuses on the way in which a particular activity was being managed or organised. This means that organisations are not liable on the basis of any immediate, operational negligence causing death, or indeed for the unpredictable, maverick acts of its employees. Instead, it focuses responsibility on the working practices of the organisation.

36. The management failure is the failure by senior managers, not the failings at junior level. The intended focus is "not limited to questions about the individual responsibility of senior managers, but instead considers wider questions about how, at a senior management level, activities were organised and managed." [58]We agree that this allows senior management conduct to be considered collectively as well as individually. The intention is to target failings where the corporation as a whole has inadequate practices or systems for managing a particular activity.

37. Clause 2 provides:

A person is a "senior manager" of an organisation if he plays a significant role in:

(a) the making of decisions about, how the whole or a substantial part of its activities are to be managed or organised, or

(b) the actual managing or organizing of the whole or a substantial part of those activities.

— The term "significant" is intended to capture those whose role in the relevant management activity is decisive or influential, rather than playing a minor or supporting role.

— It is to be presumed that it will be a matter of law for the Judge to determine whether a person within an organisation is capable of being a senior manager within the definition of clause 2, in relation to any particular organisation, and then for the jury to determine whether such a person was a senior manager.

— We welcome the wider definition of such a person, which is a significant move away from the concept of a "controlling mind" at common law, and the avoidance of a narrow definition allows for the full assessment of the role of such a person within the whole of a particular organisation thus preventing the purpose of the proposed statute being defeated.

38. It follows that the decisions for the court, on the issue of identification of a senior manager, should be taken in the following order:

(a) what are the activities of the organisation;

(b) does the individual under scrutiny play a significant role:

(i) in making the decisions about how the activities are managed or organised, or

(ii) in the actual managing or organizing of the activities of the organisation

(c) is that significant role in relation to either (a) or (b), in respect of the whole or substantial part of its activities.

39. This definition of senior manager would appear to be sufficiently wide to encompass the relatively low level manager "on the ground" who permits a train to depart on a journey without a fitted fail-safe system in full operation, but would enable the liability behind that decision to be examined as to the structures operated by the senior managers within which that local manager decision had been taken. This might include operating pressures set by senior managers as to timetabling, staffing levels, maintenance etc. It would also attach liability to the senior managers if the structures of the organisation place too much responsibility on lower level employees without proper supervision.

40. We suggest that the proposed definition in the Bill of "senior manager" is a necessary safeguard for the junior employee, and appears to meet the public concern that the junior employee should not be "a scapegoat".[59] We respectfully agree.

Potential Defendants

41. As set out in the Consultation Paper with the draft Bill, the new law, rightly in our view, will apply to all corporate bodies, those incorporated under statute or Royal Charter including local authorities, NHS trusts and many non-departmental Public Bodies. [60]Clause 1(2) identifies the organisations to which the offence should apply:

(a) a corporation; [which is further defined in Clause 5 as including any body corporate wherever incorporated]; and

(b) a government department or other body listed in the Schedule.

— We suggest that, either by way of amendment to clause 5, or by use of a Schedule to the Bill, specific reference to incorporation by whatever means, including by statute or by Royal charter, could be made, so as to leave no doubt that all those public bodies that are identified in the Consultation Paper at paragraph 36 are to be included in the definition of "organisation".

42. As the issue of the failings of the current law on corporate manslaughter has been directed at the large corporate bodies, the exclusion of unincorporated bodies is, on balance, a fair conclusion. It is consistent with the original proposal of the Law Commission. Further the use of this new law would generally be unnecessary for the smaller undertakings, such as the small gas fitter business[61], where the individual responsibility for gross negligent manslaughter, which existed before, remains[62]. As has been illustrated by the conviction in Kite and OLL Ltd[63] where the company was a one man concern whose "directing mind" was plainly its managing director: the company's liability was established automatically on his conviction.

43. As set out in the Consultation Paper[64]: "Whilst the new offence would apply to police authorities (as incorporated bodies), police forces themselves are not incorporated and therefore would not be covered. (Nor are they Crown bodies and so they are not covered by that aspect of our proposals either). We do not consider that, in principle, police forces should be outside the scope of the offence and our intention is that legislation should in due course extend to them. We are currently considering how best to achieve this, given their particular legal status."

44. We suggest that it is not necessary to delay the inclusion of police forces within the ambit of the proposed offence. The inclusion in the Bill of some government departments or other body by way of the Schedule, and the exclusion of "corporation sole" and certain activities of the armed forces, provide examples of the selection of organisations, or activities within an organisation, to which the proposed offence should apply. We respectfully submit that a new clause 1(2)(c) could specifically include the Police Forces of England and Wales, the Metropolitan Police and the City of London Police.

45. The Crown is included as such an organisation when it owes the duty of care as employer or occupier of land or supplier of goods or services or operating commercially. To that extent it is fair to say that the effect is to create a broad level playing field between public and private sectors.[65]

46. There is an exemption provided in clause 4(2):

"An organisation that is a public authority does not owe a duty of care for the purposes of this Act in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests)."

47. In our view the public policy exemption, developed in the law of negligence since the decision in Anns v London Borough of Merton [1978] A.C. 728 HL, creates a degree of tension where the safety of lives is at stake. A careful judgment needs to be made as to which functions of government should fall within the exemption and those that do not.

48. If a company such as Railtrack made a decision on the allocation of resources and as a result failed to allocate sufficient resources into a safe system of work resulting in a death, the directors as senior managers would have no exemption from the relevant duty of care. We pose the question as to whether, if that same company was taken into public ownership, it should suddenly be right for an exemption to apply to a similar decision as to the allocation of resources?

49. A further exemption from the "relevant duty of care" is expressed at the end of clause 4(1) where the organisation is conducting its activity "otherwise than in the exercise of an exclusively public function". "Exclusively public function" is defined in clause 4(4), and therefore, in respect of other activities performed by Government, under the prerogative or of a type of activity that requires a statutory or prerogative basis (examples of this might include the Government providing services in a civil emergency or functions relating to the custody of prisoners), it is intended that the organisational failings will therefore fall to be dealt with by wider forms of public and democratic accountability. These other lines of accountability, include through Ministers in Parliament, remedies under the Human Rights Act, public inquiries and other independent investigations, judicial review and Ombudsmen.

50. We respectfully agree with the observation in the Consultation Paper that the personal liability of individuals undertaking such functions should remain as it is under the present law.

51. The Consultation Paper accompanying the draft Bill contains observations, by way of example, that deaths in prisons are already subject to independent investigations through inquests and through independent reports capable of ranging widely over management issues.

52. The view expressed in the Consultation Paper is that "cases under the law of negligence already make it clear that public authorities will rarely owe a duty of care where a decision involves weighing competing public interests dictated by financial, economic, social or political factors, which the courts are not in a position to reach a view on".[66] The draft Bill makes clear that the principle applies to the new offence which would not therefore apply to deaths resulting from such public policy decisions.

53. We submit that any diminution in the responsibility for the relevant duty of care in relation to deaths in custody is a cause for concern and requires appropriate justification. If, for example, the management of the prison service or a relevant part of it is identified as having "negligence at every level of the hierarchy",[67] we raise the question why should that hierarchy be exempted from criminal liability for a death arising as a result?

54. A further exclusion is provided for the Armed forces by clause 10 in respect of:

(a) activities carried on by members of the armed forces of or in preparation for, or directly in support of, any combat operations; and

(b) the planning of such operations.

55. We submit that the exemption is too widely drawn. Preparation for any combat operation may well include elements of basic training, rather than specialised activities directly in support of combat operations as defined in clauses 3(a) and (b). The removal of the words "or in preparation for" in the clause would not alter the effect of clause 1(a) in respect of specialised preparation for the combat operations, because training for such operations is covered by clause 3(b). It would, however, remove the exemption from the level of basic training and other activities peripheral to the training for combat operations. This may go some way towards allaying the public concern particularly in respect of the responsibility for the implementation of standards of safety of young recruits entering the armed forces.

Investigation and prosecution

56. The Bar Council position remains as quoted in the Summary of Responses document:

"There is no reason why, in an appropriate case, a Health and Safety Enforcement Agency ought not to prosecute for the new offence of corporate killing." Bar Council [2000]

57. The essential requirement is co-operation between agencies, including the use of expertise in investigation, and smooth compliance with disclosure duties: joint agency prosecution will need allocation of responsibility and clear guidelines to ensure all material, including third party material is identified and disclosed in a full and timely manner[68]. However, no statutory provision would appear to be required to enable a protocol to be devised and implemented to enable smooth co-operation and wise use of resources.

Extent and Territorial application

58. The new offence would apply to a death resulting from harm caused in England and Wales; or within United Kingdom territorial waters; on British registered ships; on British controlled aircraft and hovercraft; and offshore installations.[69] All companies, including foreign registered companies, would be subject to prosecution. The proposal in the Consultation Papers is that the offence should apply provided that the injury that results in death occurs in a place where the English courts have jurisdiction. This would be the case whether the relevant management failure took place here or, as might be the case with a foreign company, abroad.

59. We accept that the proposal as to jurisdiction is consistent with the rules relating to the territorial extent as now apply to the offence of gross negligence manslaughter, and we agree that there are insuperable problems with regard to investigation and enforcement if the territorial application were to be extended to operations abroad of companies registered in England and Wales.

Sentence and Remedies

60. The sentence for the offence is an unlimited fine. [cl 1(4)]

61. The draft Bill provides no exemption from the imposition of a fine on a Crown body. Whilst it is accepted that there will be an element of the "recycling"" of public money[70], we suggest that there should be no exemption. The discretionary imposition of a fine has the merit that the public can see, by the level of the fine, that an assessment of culpability has been made. Further, within the relevant department, the financial penalty will carry with it issues of accountability.

62. A welcome addition to the orders available to the sentencing court is the power to order breaches to be remedied.[71]

63. Failure to comply with the remedy will result in a further offence being committed[72], which in turn will incur a further financial penalty. No guidance is given as to how the specified steps are to be monitored.

64. We suggest that an enforcement body should be identified, and be given the duty to report back to the court that compliance with the remedy has been effected, or not, as the case may be. Alternatively or in addition, the enforcement body could be vested with powers to issue a certificate of satisfactory compliance. In the event of failure to comply, the enforcement body should have the power to prefer a charge pursuant to clause 6(4).

65. Although proposed in the Consultation Paper in 2000, there are no specific powers included in the Bill to enable the court to disqualify a senior manager of the organisation, on conviction of that organisation, from acting in a management role. In appropriate cases the remedies remain available in the Company Directors Disqualification Act 1986 section 2 where a person as an individual is convicted of an indictable offence in connection with the management of a company, and may be so disqualified. The prosecuting authority will therefore have to consider carefully whether individual charges should be laid against the identifiable senior managers, either for gross negligence manslaughter or under other health and safety legislation.

66. Where no individual director has been prosecuted, but the court having heard the evidence is satisfied that individual failings have been sufficient to warrant disqualification, we submit that the court should be given the discretion to order such disqualification subject, of course, to hearing representations from or on behalf of the individual concerned.

67. The Law Commission indicated that following a conviction the court would also have its ordinary powers to order compensation.[73] We recognise that the power to order compensation would be rarely used because of the likely complexity of the assessment. It is suggested that, if the intention is to provide the court with such powers in appropriate circumstances, then it should be clearly spelt out that the relevant powers provided by the Powers of Criminal Courts (Sentencing) Act 2000 which are stated in that Act to apply to a person, should be extended to apply to any organisation convicted of an offence under the Corporate Manslaughter Act.

Conclusion

68. The new offence of corporate manslaughter will now permit the effective prosecution of those large organisations who have, through their senior managers, shown gross failures in the conduct of their activities as a result of which a death has been caused.

69. This Bill is long overdue and, subject to our proposed modifications, it is to be welcomed.

24 June 2005

28 http://news.bbc.co.uk/onthisday/hi/dates/stories/october/8/newsid-2626000/2626265.stm Back

29 DEPARTMENT OF TRANSPORT (UK)-MV Herald of Free Enterprise. Report of Court No. 8074-at paragraph 14.1 Formal Investigation (The Hon. Mr Justice Sheen-Wreck Commissioner), 29 July 1987. London, Her Majesty's Stationery Office, 1987, ISBN 0 11 550828 7. Back

30 R -v- P. & O. European Ferries (Dover) Ltd: (1991)93 Cr App R 72, Turner J ; [1991] Crim L.R. 695 and LC 237 (see footnote 4 below) at paragraphs 6.43 et seq. Back

31 Consultation Paper 135. Back

32 The Law Commission: Legislating the Criminal Code: Involuntary Manslaughter. Law Commission Report No 237. HMSO March 1996 http://www.lawcom.gov.uk/files/lc237.pdf Back

33 Parts VI, VII and VIII. Back

34 para 8.35 and Clause 4(1) and 4(2)(a) of the Law Commission's draft Bill, LC 237. Back

35 not a corporation of a single person, but a legal device for differentiating between an office holder's personal capacity and capacity qua holder of that office for the time being-eg a government ministers and archbishops. Back

36 Recommendations 13,14 and 15. Back

37 Recommendations 16 to 20. Back