52. Memorandum submitted by the Association
of Principal Fire Officers
The Association of Principal Fire Officers (APFO)
recognises the need for reform in relation to the issue of Corporate
Manslaughter, and we therefore welcome the principals of the proposals
in the draft Bill.
We also welcome the opportunity to contribute
to the debate on behalf of our members, and our more detailed
observations and concerns are enclosed in our formal Response.
It is appreciated that it is now nine years since the first consultation
exercise in relation to such a Bill, and we recognise the need
and desire to move the process forward.
The Association of Principal Fire Officers (APFO)
represents Chief Fire Officers, Assistant Chief Fire Officers
and Deputy Chief Fire Officers in office in Local Authority Fire
Brigades constituted under the provisions of the Fire and Rescue
Services Act 2004 and previous legislation and the Chief Fire
Officers and Assistant Chief Fire Officers of the Fire Authorities
for Northern Ireland, the Isle of Man and the Channel Islands.
APFO exists to provide support to its members
in terms of negotiation, consultation, legal representation, and
personal assistance in matters involving pay, pensions, conditions
of service, grievances and disputes, and as such wishes to respond
on behalf of its members to the content of the draft Corporate
Manslaughter Bill.
By the very nature of the work undertaken by
the principal fire officers they will face circumstances which
involve fatalities. Principal fire officers are properly and understandably
interested in these legislative provisions.
APFO's concerns about the Bill are explained
below.
PRELIMINARY POINTS
Prior to examining in detail the provisions
of the Bill, it is appropriate to deal with several preliminary
issues.
We would argue that it is not appropriate for
fire authorities to be included within the remit of this Bill.
There are several reasons.
Fire authorities have little or no control over
the "work" environment to which their employees are
often subject. For example, when a fire brigade is called out
to attend upon a fire, the fire authority has no control over
the safety of the premises in which the officers will be required
to work. Equally, when a fire brigade is called out to cut someone
from a car, the fire authority has very little control over the
location of the car crash and of the dangers present at that location
for its employees.
Equally, application of this Bill to the fire
service may have an impact on civil resilience. In the event of
a terrorist attack or a natural disaster, the fire service has
a very important role to play. This Bill may well impact on the
ability or willingness of fire brigades to play a full and vital
role in such public emergencies.
Perhaps most importantly, as the Bill is currently
drafted, it is exceptionally difficult to see how it will apply
to the fire service. Our comments on the problems inherent in
the Draft Bill are explored fully below. Amendment of the Bill
would result in the resolution of some of the issues we raise;
however, the fundamental problem with the Bill is not it's drafting,
but its stated aims. Quite simply, the Bill was not created with
the special needs of the fire service in mind.
Finally, we note from paragraph 44 of the Introduction
to the Home Office Consultation Paper "Corporate Manslaughter:
The Government's Draft Bill for Reform" that police forces
are not included within the list of corporations/public bodies
affected by the Bill. The Home Office is considering how best
to achieve legislation which "should in due course extend"
to police forces.
There has been wide recognition of the exceptional
position of the emergency services and in particular the police
and fire brigades.
We fully agree with the comment of the Association
of Chief Police Officers as set out in the "Summary of Responses
to the Home Office's Consultation on Corporate Manslaughter"
that:
". . . there is a need to ensure that protection
for those who take on a duty or role which in turn protects society
against life threatening situations . . ."
Given that separate legislation is being considered
for police forces and that in relation to the public emergency
response role there is no difference in principle between the
police and fire services, that bespoke process would seem to be
more appropriate for the emergency services rather than inclusion
within unsuitable legislation.
THE OFFENCE
The Offence can only be understood when the
constituent elements of the offence are explained and understood.
Accordingly we will seek to explain our concerns by reference
to the constituent elements of the offence below. However, it
is worth setting out the offence as contained in schedule 1(1)
of the draft Bill here to provide a reference point:
"An organisation to which this section
applies is guilty of the offence of corporate manslaughter if
the way in which any of the organisation's activities are managed
or organised by its senior managers:
(a) causes person's death; and
(b) amounts to a gross breach of a relevant
duty of care owned by the organisation to the deceased."
Management Failure by a Senior Manager
We are concerned that the "management failure"
test is poorly worded. Given the content of the Introduction to
the Home Office Consultation Paper "Corporate Manslaughter:
The Government's Draft Bill for Reform", we are concerned
that the wording of the "management failure" test will
not achieve the Government's stated aims for the scope of the
new offence.
It appears to us that the management failure
test is designed to catch those corporations who fail to have
in place the correct risk assessments, health and safety policies,
training programmes and the like (which is affirmed by the implications
of section 2(2) of the draft Bill). The reason that the law relating
to health and safety is successful is that it sets industry specific
targets and standards. We fail to see why the corporate manslaughter
offence should not be specifically linked in section 1 to a gross
failure to comply with applicable health and safety law by senior
management. Such amendment would not undermine the offence and
would provide much needed clarity.
Currently, the content of section 2(2) hints
at the offence being made out where there is a gross failure to
comply with relevant health and safety legislation or guidance.
However, the more general wording of section 1 could be interpreted
to have been deliberately left more vague than section 2(2) and
could therefore persuade judges to interpret section 1 widely.
Even if there is a desire to keep breach of health and safety
laws and corporate manslaughter separate, further clarification
is required on the intended scope of the offence.
If further clarification is not provided, we
fear that risk averse practices will ensue until the Courts provide
clarification on the extent of the offence.
Clarification is also required because it is
wrong as a matter of principle that those managers whose evidence
is essential to making out the offence should be subject to an
overly lengthy criminal investigation and court case. Under the
current legislation investigations are extremely lengthy, primarily
because the law is uncertain and the offence is difficult to make
out. Equally, court cases are brought which collapse, or run for
long periods of time before their final resolution.
It is wrong that a manager's career and personal
life (certainly in the case of a dedicated public servant such
as a fire officer) should be so utterly disrupted while circumstances
with which that person is linked only in a management sense are
tested before a judge and jury as to whether they constitute a
"management failure". Greater clarity is essential.
Gross Breach
Section 3(1) of the draft Bill provides that
the offence will only be made out if any breach of a relevant
duty of care is a "gross" breach. A breach is a gross
breach if "the failure in question constitutes conduct falling
far below what can reasonably be expected of the organisation
in the circumstances".
Again, we are concerned that the test as to
what constitutes a gross breach is not certain enough.
The requirement that behaviour falls "far
below" what is reasonably expected requires further clarification.
The test in Adomako; that an act was so grossly negligent as to
be criminal, has been criticised for being too uncertain. In our
view the new "far below" test is no more certain. Whether
behaviour is "criminal" or falls "far below"
what is reasonably expected are both uncertain yardsticks for
assessing behaviour. If a loose test is preferred, the Adomako
test should be retained. There is at least some case law on what
constitutes "criminal" behaviour and in our view juries
are more likely to be able to assess whether behaviour is "criminal"
than whether it falls "far below" a standard which they
themselves have to establish.
Presumably, in recognition of the difficulty
juries may have in ascertaining whether behaviour has fallen "far
below" what is reasonably expected, section 3(2) of the draft
Bill sets out matters that the jury must consider when considering
whether a breach of a duty of care constitutes a gross breach.
The jury is required to consider "whether the evidence shows
that the organisation failed to comply with any relevant health
and safety legislation and guidance". If the jury finds that
the evidence does show that the organisation failed to comply
with the relevant health and safety legislation/guidance it must
go on to consider the extent of that failure.
As already mentioned above what is not made
clear in section 3(2) is whether it is a requirement of a finding
of a gross breach of duty that the organisation failed to comply
with any relevant health and safety legislation, or whether such
failure is merely one way of identifying a gross breach of a relevant
duty. The section requires the jury to "consider" any
failure to comply with any relevant health and safety legislation
but does not make it clear whether a jury can go on to find a
gross breach of a relevant duty of care without evidence of a
failure to comply with any relevant health and safety legislation.
If section 3(2) is a list of indicators of a
gross breach of duty and such a breach cannot be made out without
evidence of those indicators, the requirement in section 3(2)(b)(iii)
that the senior managers "sought to cause the organisation
to profit from that failure" is at odds with section 4(1)(c)(i)
which provides that a relevant duty of care comprises "the
supply of goods or services (whether for consideration or not)".
The "Introduction" to the Consultation
Paper provides that the bill is intended to apply to organisations
like the NHS who provide services for nil consideration. However,
if it is a requirement that an organisation sought to profit from
a breach of a relevant duty of care to prove that such breach
was a gross breach and thus make out the offence, we cannot see
how organisations like the NHS would ever be found to have grossly
breached a relevant duty of care. Clarification is required.
Since the intention appears to be that the Section
3(2) list is no more than to aid and guide the jury, then we request
that a separate factor be introduced which illustrates the invidious
position of the emergency services when responding to the multitude
of different life-threatening situations with time critical decisions
to be taken.
Relevant duty of care
Firstly, as the Bill is currently drafted, it
appears to us that there are two possible interpretations of section
4(1) as follows:
1. Those corporations involved in an
"exclusively public function" will not have a relevant
duty of care where that duty arises from "the supply by the
organisation of goods or services (whether for consideration or
not), or the carrying on by the organisation of any other activity
on a commercial basis" (ie those duties under section 1(c)
of the draft Bill); or
2. The fact that the statement "otherwise
than in the exercise of an exclusively public function" is
placed at the end of section 4(1) points to an intention to indicate
that those organisations which carry out an exclusively public
function will not have a relevant duty of care howsoever that
duty arises (ie whether by a liability in negligence to its employees,
in its capacity as an occupier of land or via the carrying on
of an activity on a commercial basis or the supply of goods and
services).
A court may well favour the latter interpretation
given the definition of "an exclusively public function".
"An exclusively public function" is
defined in section 4(4) of the Bill as follows:
". . . exclusively public function"
means a function that falls within the prerogative of the Crown
or is, by nature, exercisable only with authority conferred:
(a) by the exercised of that prerogative;
or
(b) by or under any enactment."
It is a principle of public law that if a body
created by statute (such as a fire authority) acts outside its
statutory remit, it is acting ultra vires. Therefore, any
and all activities undertaken by public bodies are carried out
"by or under any enactment", unless the body is acting
ultra vires.
Given the public law principle outlined above,
it is easy to see why the Courts may well prefer the second interpretation
of section 4(1) as outlined above.
Section 4(1) therefore requires clarification.
Secondly, assuming that the first interpretation
of section 4(1) as outlined above is the correct one, it seems
to us that the fact that the offence is made out by reference
to a specific duty of care and that breach of only certain duties
will result in liability, means that the Bill is inherently unsuitable
to apply to the fire service.
The ability of the fire service to provide a
fire fighting service is inextricably linked to its employees.
Therefore to separate criminal liability so that the fire service
will not be guilty of corporate manslaughter when it has a duty
of care based on the provision of a service, but can be guilty
of corporate manslaughter when it has a duty of care based on
employers liability is a false separation and will not work in
practice.
Take for example a fire fighter who dies whilst
fighting a fire. Would it be the case that by virtue of section
4(1) the fire service may be guilty of corporate manslaughter
via its duty of care to its employee, the fire fighter? Or, would
it be the case that because the fire service was providing a service
which was an exclusively public function (fighting fires), that
it could not be guilty of corporate manslaughter?
Although this separation of the relevant duties
of care may work for bodies like local authorities when they are,
for example, carrying on a leisure centre business, it is not
appropriate in circumstances where the provision of the service
is inextricably linked to the employees of the organisation, and
where those employees risk their lives on a daily basis to provide
that service.
In our view, this inherent difference between
the fire service and other public bodies makes it untenable for
the Bill in its current form to apply to the fire service. Equally,
we believe that it would be exceedingly difficult to amend the
Bill to ensure that it fulfilled the Government's aims in relation
to private corporations and other public bodies, and also for
it to realistically provide for the fire service. Accordingly,
we believe strongly that this Bill should exclude the fire service
from its remit.
CONCLUSION
1. APFO feels strongly that the Bill as
currently drafted lacks clarity and will be likely to lead to
further confusion in the area of Corporate Manslaughter.
2. Further, and more importantly, APFO does
not feel that it is appropriate for the fire service to fall within
the remit of the Bill, given its unique role.
3. It is noted that the current Bill has
not addressed the position of the police and there are substantial
analogies between their incident response role and that of the
fire service. APFO would like to know why the police have received
separate attention and specifically request that proposals for
the police (which may be suitable for, or applicable to, the Fire
Service) should be consulted upon with APFO prior to public consultation.
4. If there is a determination to retain
fire services within the ambit of this legislation, then a specific
clause is sought which properly illustrates what kind of default
on the part of fire service officers could ever amount to a "gross
breach".
5. Notwithstanding the reservations advanced
in this response, the Association supports effective reform of
the law relating to corporate manslaughter.
15 June 2005
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