63. Memorandum submitted by the London
Criminal Courts Solicitors' Association
The London Criminal Courts Solicitors' Association
(LCCSA) represents the interests of specialist criminal lawyers
in the London area. Founded in 1948, it now has over 1000 members
including Crown prosecutors, defence practitioners, freelance
advocates and many honorary members who are circuit judges and
district judges.
The objectives of the LCCSA are to encourage
and maintain the highest standards of advocacy and practice in
the criminal courts in and around London, to participate in discussions
on developments in the criminal process, to represent and further
the interests of the members on any matter which may affect solicitors
who practice in the criminal courts and to improve, develop and
maintain the education and knowledge of those actively concerned
with the criminal courts, including those who are in the course
of their training.
We anticipate that there will be a range of
views expressed by our members in relation to the Department of
Constitutional Affairs (DCA) consultation paper as the arguments
in favour and those that weigh against changes to the current
law need to be finely balanced and therefore we do not realistically
anticipate all members will share the same view. We have however
sought to put the views of those preparing the response as succinctly
as possible in order to contribute positively to the current debate
regarding corporate manslaughter.
INTRODUCTION
The need to reform the law of corporate manslaughter
has been highlighted in recent years by a series of high profile
cases in which companies have escaped conviction despite serious
loss of life.
A fundamental difficulty has been the requirement
that, before a company can be prosecuted for manslaughter, an
individual who can be said to be a `directing mind' of the company
must first be convicted of gross negligence manslaughter. This
hurdle has proved very high indeed and in many cases insurmountable.
Only those people at the top of the company
who can be said to embody the company in their actions and decisions
are capable of being considered as `directing minds'. In practice
this means a very small number of senior directors and managers.
The prime difficulty is proving that such a senior director or
manager is also personally responsible for a grossly negligent
act or omission, which results in loss of life.
These difficulties are compounded in cases against
large companies. Complex management structures make it more difficult
to identify a `directing mind' and the delegation of responsibilities
means one individual at the top is less likely to be proved to
be the cause of the death or deaths in question.
The very low number of prosecutions brought
against companies, and the even lower conviction rate, reflects
these problems. Of the 34 manslaughter prosecutions for causing
deaths in the workplace brought since 1992, only six, small, companies
have been convicted. A major corporate defendant is yet to be
convicted. The two major prosecutions brought in recent years
against large companies for disasters outside the workplace -
the Great Western Trains and P&O Ferries cases - both failed
in their early stages. Great Western Trains escaped conviction
following the deaths of seven people in the Southall train crash,
when the trial judge ruled that the prosecution could not proceed
without a conviction of an individual director or manager. A decade
earlier, the prosecution failed to get off the ground in the case
against P & O European Ferries following the sinking of the
Herald of Free Enterprise, in which 192 people died. Here, the
judge ruled there was insufficient evidence of wrongdoing by a
director or senior manager.
The failure of such high profile cases has led
to widespread public concern that the law is unable to hold large
organisations to account, and has so far failed to deliver justice.
It is against this backdrop that the government
has now set itself the challenge of creating a viable criminal
offence, which more adequately reflects the grave consequences
of a company's failings. Central to its proposal is "striking
the right balance between a more effective offence and legislation
that would unnecessarily impose a burden on business". The
core of the new offence is therefore a more workable scheme where
a company's failures can be more easily attributed to the way
those at the top of the organisation organise and manage its activities.
The question that falls to be asked is: does
the draft Bill achieve these aims? We raise three areas of concern:
1. Are the terms of the Bill sufficiently
precise?
(a) The requirement for the activity in question
to have been managed or organised by senior managers;
(b) The requirement to prove that gross negligence
was in pursuit of profit;
(c) The limitation of the "duty of care";
2. Should it extend to all Government bodies
and unincorporated associations?
(a) The excessively broad application of the
proposed exemptions;
(b) The apparent exclusion from liability of
public bodies carrying out an exclusively public function;
(c) The exclusion of The Prison Service;
(d) The exclusion of unincorporated associations;
3. Should there be sanctions available other
than fines on conviction?
(a) The inadequate financial penalties;
(b) The insufficiency of other sentencing powers;
(c) The necessity of disqualifying individual
managers from acting in a similar role in any future undertaking;
(d) The failure of the legislation to provide
greater powers to ensure the effectiveness of investigations,
prosecutions, and the promotion of safe systems of work;
(e) The limited effectiveness of the proposed
Remedial Orders;
(f) The failure of the legislation to provide
greater powers to ensure the avoidance of the frustration
of criminal proceedings.
1. IS THE
PROPOSED LEGISLATION
SUFFICIENTLY PRECISE?
1. The Proposed Legislation
1.1 An organisation will be guilty of the
new offence if the way in which its senior managers manage or
organise its activities causes a person's death, such that the
activity constitutes a gross breach of a duty of care that the
organisation owed them as their employer, or as the occupier of
a building, or in supplying goods or services or performing a
commercial activity.
1.2 The organisation's conduct will be assessed
against a number of statutory criteria, to include the extent
to which the company has breached relevant health and safety
legislation, whether senior managers were aware of the risks that
the company was running and whether they sought to profit
from that breach.
1.3 The offence will apply to all corporate
bodies. There will be no general Crown immunity and the offence
will apply to a wide range of Government departments and other
Crown bodies, as well as other parts of the public sector.
1.4 The new offence will target the liability
of organisations themselves and will not apply to individual directors
or others. Individuals will however remain liable to prosecution
for existing offences where they are personally to blame.
1.5 The offence will be tried in the Crown
Court and the penalty will be an unlimited fine.
1.6 The Court will have the power to make
remedial orders. Private prosecutions will require the consent
of the Director of Public Prosecutions. The offence will apply
in England and Wales and will not carry extra territorial jurisdiction.
2 Who is liable?
2.1 Clause 1(1)—"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 senior managers:
(a) causes a person's death; and
(b) amounts to a gross breach of a relevant
duty of care owed by the organisation to the deceased".
2.2 Sub section 2 states that "The
organisation to which this section applies are:
(b) a government department or other body
listed in the Schedule".
This offence is therefore limited to corporations
only, which contrasts with the previous proposals which had suggested
the offence apply to "undertakings", a much wider class
of potential defendants.
2.3 The term "organisation" doesn"t
include unincorporated associations. Currently, because gross
negligence manslaughter is a common law offence and, at common
law, an unincorporated association is not a legal person, an unincorporated
association cannot be convicted of gross negligence manslaughter.
However, the position might be different if the offence of gross
negligence manslaughter was created by statute because the Interpretation
Act 1978 defines "person" to include "a body of
persons corporate or unincorporate". We believe that there
is no good reason why unincorporated associations should not be
included within the term "organisation" and, therefore,
subject to the proposed Bill. The justification that many unincorporated
bodies do not have a distinct legal personality and have transient
structures and personnel is not accepted. Such assertions may
be true of some unincorporated organisations but certainly not
all.
3 Definition of Senior Manager
3.1 One of the primary criticisms of clause
1 of the proposed legislation is the requirement for the activity
to have been managed or organised by senior managers. In clause
2, a senior manager is defined as follows:
"A person is a `senior manager' of an organisation
if he plays a significant role in the making of decisions about
how the whole or a substantial part of its activities are to be
managed, or organised, or the actual managing or organising of
the whole or a substantial part of those activities."
3.2 According to the consultation document,
this principle of identifying the senior manager is intended to
replace the identification principle with a basis for corporate
liability that better reflects the complexities of decision taking
and management within modern large organisations, but which will
also be relevant for smaller bodies. The consultation document
confirms that the offence is targeted at failings in the strategic
management of an organisation's activities.
3.3 However, to come within the definition
of a senior manager, a person must play a role in managing or
making management decisions about the activities of the organisation
as a whole or a substantial part of it. Therefore, the role must
be "significant". The consultation document acknowledges
that the requirement that a senior manager's role extends to the
whole or a substantial part of the organisation will mean that
the definition will affect organisations differently depending
upon their size. "Management responsibilities which might
be covered by the offence within a smaller organisation . . .
may well be too low a level within an organisation that operates
on a much wider scale" (consultation paper—paragraph
30). This replicates one of the key criticisms of the existing
legislation, by creating a two-tier system of liability and is
inequitable in its operation. In reality, the effect will be that
two people doing much the same job within different organisations
of differing sizes will have a greater or lesser potential for
corporate liability, depending upon whether they work in a larger
company where the organisation of the company is more complex,
or within a smaller business enterprise. In our view, it would
be more appropriate for the legislation to require the management
failures to be those of managers rather than senior managers,
which would avoid the incongruity created between smaller and
larger organisations, and would mirror the current health and
safety legislation, where it is not necessary to show that the
directors or senior managers have personally failed to ensure
health and safety procedures are complied with.
3.4 If the legislation is altered to require
the management failures to be those of managers rather than senior
managers, it should no longer be necessary for the prosecution
to have to prove that those managers played a role in managing
or making management decisions about the activities of the organisation
as a whole. It would be sufficient for the definition to require
that a person be defined as a manager of an organisation, ie if
he plays a significant role in the organisation. Such a definition
would be easier for a jury to comprehend, thereby simplifying
the directions that would need to be given to a jury at trial.
The jury would have to consider the function the manager played
in the organisation and determine whether he/she played a significant
role.
3.5 One of the main objections to the current
law is that large companies escape prosecution because of the
ongoing difficulty in proving the involvement of a "controlling
mind". However, the Draft Bill's requirement to identify
"senior managers" carrying out a "significant"
role may be equally problematic in achieving successful prosecutions
for corporate manslaughter.
4. Definition of Gross Breach
4.1 Gross breach is defined in Clause 3
(1) as a failure constituting "conduct failing far below
what can reasonably be expected of the organisation in the circumstances".
Clause 3(2) gives some statutory criteria, which
are intended to provide a clearer framework for assessing an organisation's
culpability. These require the jury to consider:
"whether the evidence shows that the organisation
failed to comply with any relevant health and safety legislation
or guidance and if so:
(a) how serious was the failure to comply;
(b) whether or not senior managers of
the organisation:
(i) knew or ought to have known, that
the organisation was failing to comply with the 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; and
(iii) sought to cause the organisation to
profit from that failure."
4.2 Clause 3 (4) entitles a jury to take
account of other matters that they consider relevant.
4.3 "Profit" is not defined in
the Bill. We would submit that having to prove that gross negligence
was in pursuit of profit constitutes an additional unnecessary
burden for the prosecution. Although profit isn't specified to
be purely pecuniary, there will be an obvious inference that financial
gain was intended. The inclusion of this element in the definition
of the offence seems to raise the possibility of excluding not
for profit organisations and to a large extent government departments.
In our view, the issue of whether the organisations sought to
profit from its failure is a matter for sentencing. In any event,
it will be very difficult to prove the motive of economic profit
and in the absence of such evidence, a loophole may be inadvertently
created whereby organisations will be able to show that their
conduct was not grossly negligent, simply because there was no
intention to create a profit from that conduct. This clause is
ambiguous and unnecessary and is not a relevant issue in negligence
law.
4.4 The directions to the jury will inevitably
be both complex and too vague and may make it extremely difficult
to mount a successful prosecution.
4.5 Clause 3(2)(b)(ii), as proposed, concerns
the risk of death or serious harm. However, current thinking in
the area of gross negligence manslaughter is that the risk should
be an obvious and serious risk of death.
5. Definition—Relevant Duty
5.1 The new offence is drafted to apply
only where an organisation owes a duty of care to the deceased
"under the law of negligence". Clause 4(1) also requires
the duty of care to arise out of certain specific functions or
activities performed by the organisation, so that the offence
will only apply where an organisation owes a duty:
(ii) As occupier of land (premises).
(iii) When the organisation is supplying
goods or services, whether or not for consideration. The consultation
document cites examples such as the duty owed by transport companies
to their passengers and further notes that services that are provided
to the public by public bodies such as NHS trusts will also be
covered, as well as those provided on a private basis.
(iv) When carrying out on a commercial basis
other activities, that are not the supply of goods and services.
5.2 We question whether it is necessary
to define and limit "duty of care". Should this not
be left to the judge to direct to the jury? We believe that there
should be a clear indication as to whether the fact that a duty
of care was owed is a question of fact for the jury or a question
of law for the judge. Alternatively, it may be more appropriate
for the question as to whether the circumstances were capable
of creating a duty of care to be a question of law for the judge,
and whether such a duty was owed to be a question of fact for
the jury.
6. Conclusion
6.1 The aim of the new Bill is to provide
an offence which is "clear and effective" to replace
the current law of corporate manslaughter, which has been so fraught
with problems as to make successful prosecutions in many cases
impossible. The draft Corporate Manslaughter Bill contains a new
offence, which is substantially different from to the proposals
in the 2000 Consultation Paper. Specifically, there are no proposals
for new offences creating individual liability. The drafting of
the new offence is in our view both too rigid and, in parts, too
vague, with the effect that the wording of the new offence may
act as a barrier to a successful prosecution.
6.2 If the Government is seeking to move
away from individual liability towards management failures of
companies, where their conduct falls "far below what could
reasonably be expected of the corporations in these circumstances"
thereby imposing a largely objective test, it is ill conceived
in our view to require a management failure by senior managers,
defined to be only those who play a role in management of the
organisation as a whole. The appropriate test is the one identified
in the 1996 Law Commission recommendation which considered failures
by "managers" not failings by "senior managers"
to be sufficient to give rise to a prosecution. In large organisations
the requirement for the failure to be that of a senior manager
would incentivise the delegation of responsibility down the management
chain, thereby avoiding any potential for a manslaughter prosecution.
Additionally, the reference to senior managers will inevitably
result in smaller organisations being held to account and more
easily prosecuted than larger organisations, which is one of the
primary criticisms of the current law.
6.3 The fact that the bill requires a "gross
failure" to establish liability, should justify a prosecution
proving a management system failure of even junior managers. This
in turn would avoid the need to give complex directions to the
jury on whether the senior manager was responsible for the whole
or a substantial part of the business, which requirement in our
view is a further unnecessary hurdle that in reality may prove
to be the final stumbling block to any future successful prosecution
for corporate manslaughter.
2. SHOULD THE
BILL BE
EXTENDED TO
ALL GOVERNMENT
BODIES AND
UNINCORPORATED ORGANISATIONS?
7. Crown Immunity
7.1 The current draft Bill makes the offence
of corporate manslaughter applicable to an "organisation".
Clause 1(2) specifies that the organisations to which clause 1(1)
applies are corporations and "a government department or
other body listed in the Schedule." Clause 1(3) allows the
Secretary of State to amend the Schedule by order.
7.2 Clause 5 defines "corporation"
and clause 7 removes Crown immunity from "an organisation
that is a servant or agent of the Crown". This therefore
explicitly removes Crown immunity. The Government in its commentary
on the draft bill at paragraph 38 states that it "recognises
the need for it to be clearly accountable where management failings
on its part lead to death. There will therefore be no general
Crown immunity providing exemption from prosecution."
7.3 This is subject to exceptions such as
for the armed forces in relation to combat operations to include
simulated combat exercises (clause 10) and also in the exercise
of an "exclusively public function". The terms of clause
4(1)(c)(ii) limits the duty of care owed by an organisation to
"the carrying on by the organisation of any activity on a
commercial basis, otherwise than in the exercise of an exclusively
public function." Clause 4(4) goes on to define "exclusively
public function" being "a function that falls within
the prerogative of the Crown or is, by its nature, exercisable
only with authority conferred by the exercise of that prerogative
or by or under an enactment."
7.4 The current Bill gives no satisfactory
definition of "exclusively public function". Its remit
would seem to include police forces insofar as they are carrying
out their public functions—and so would include those who
die in police custody or those killed as a result of police operations
which go wrong. This is despite the Government's signalled intention
(see below at paragraph 8.3) to extend the legislation to them
in due course. If it does not extend to them in the exercise of
their public functions, then it would be to omit an area, in which,
we would argue, it is perhaps particularly important to ensure
accountability.
7.5 The Government's commentary indicates
(at paragraph 22) that the exemptions are designed to exclude
examples such as "the Government providing services in a
civil emergency or functions relating to the custody of prisoners."
The Government considers that "organisational failings in
these areas are more appropriately matters for wider forms of
public and democratic accountability through public inquests before
juries and through independent reports capable of ranging widely
over management issues and publishable post inquest."
7.6 We would argue that organisational failings
in these areas are not more appropriately matters for other fora.
Rather, it is in these areas, where there can be serious risks
to life, that it is most important for Crown bodies to be held
to account. The same applies to other Government bodies such as
the military who, subject to certain proper exceptions in states
of emergency and combat, should be properly held to account for
deaths arising out of their management failures. If such bodies
are not properly accountable under the law, it is arguable that
the UK may be in breach of Article 2 of the European Convention
on Human Rights which protects the right to life and Article 13
(the obligation to provide an adequate and effective domestic
remedy in respect of breaches to the right to life under Article
2).
7.7 Too frequently deaths in circumstances
involving a Crown body are not subject to the scrutiny many believe
they should be and this has been an area of considerable public
concern.
7.8 In the case of Edwards v UK (2002),
which involved the death of a prisoner by the other cell occupant,
the European Court of Human Rights, held that the internal enquiry
that had been held failed to comply with the requirements of Article
2 to hold an effective investigation into Mr Edwards' death. The
Court held that as a general principle, "The essential purpose
of such an investigation is to secure the effective implementation
of the domestic laws which protect the right to life and, in those
cases involving State agents or bodies, to ensure their accountability
for deaths occurring under their responsibility."[86]
7.9 We would argue that the fact that the
Prison Service as a body cannot be held to account under the criminal
law for any criminal failures which may be found, may therefore
breach Articles 2 and 13.
7.10 It is fundamental in any democratic
society to ensure the accountability of State agents in circumstances
where there exists a power imbalance such as in the case of prison
officers and prison inmates. In our view, they should be included
within the scope of the new law on corporate manslaughter. The
application of the law to the military is plainly more difficult
and may require more detailed consideration but in principle we
do not see why the law should not also apply in that arena.
8. Unincorporated Bodies
8.1 In its previous consultation paper in
2000 the Government indicated its preference would be for the
law to apply to "undertakings" on the basis that it
did not wish to create "artificial barriers between incorporated
and non-incorporated bodies" and also to prevent enterprises
being deterred from incorporation, which might be the case if
the offence only applied to corporations. This was contrary to
the Law Commission's recommendation that the new offence should
not apply to unincorporated bodies despite the fact that "many
such organisations are for practical purposes indistinguishable
from corporations, and it is arguable that their liability for
fatal accidents should be the same." The Law Commission argued
that it would be wrong to extend the law to all unincorporated
bodies given that some (for example a two person partnership employing
no one) would be unfairly disadvantaged by being charged with
the corporate offence rather than the individual offence.
8.2 The justification for excluding unincorporated
bodies from the current proposed legislation is set out at paragraphs
41-43 of the Government's commentary. Reference is made to the
problems in bringing a prosecution against a body without a distinct
legal personality where the concept of management failure has
less ready application in the absence of a recognised structure
where designated post holders must be appointed and formally represent
the company. In light of the perceived practical difficulties
of bringing such prosecutions, the Government has suggested not
changing the law in this area "although we will keep this
position under review." It states that the inability to bring
a prosecution against an unincorporated body itself for manslaughter,
as opposed to any of its members individually, has not created
a problem in practice.
8.3 The commentary refers to the fact that
police forces are excluded on the basis that they are not incorporated
(unlike police authorities) but that the Government does 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."
8.4 We would argue that applying the law
differently dependent upon whether a body is incorporated or not
will result in a wholly arbitrary and unsatisfactory distinction.
To make the application of the law dependent upon the legal form
of a body which bears no relation to the function it is performing
is an arbitrary criterion and one which undermines one of the
purposes for the law being reformed. The justification set out
in paragraphs 41-43 is not convincing. We do not accept that the
potentially changing membership of unincorporated bodies is a
relevant consideration; the same is true of companies. Most unincorporated
bodies have a formal structure with recognised and defined positions
and posts in the same way that companies do. Furthermore, the
legislation should be able to be drafted in a way which allows
for the practicalities of identifying the management failure within
different structures. We consider that a distinction on this basis
may breach Article 14 of the European Convention of Human Rights.
Article 14 provides a guarantee against discrimination in the
enjoyment of the rights and freedoms set out in the Convention
unless there is objective and reasonable justification for such
discrimination. In most cases, we would argue that there will
be no such justification.
3. ARE THE
PENALTIES ON
CONVICTION SUFFICIENT?
9. Introduction
9.1 Organisations are systems, not just
aggregations of individuals. Accordingly, it is only right that
the organisation itself should be held to account for the consequences
of its acts or omissions. However, the stigma of an organisation
receiving a criminal conviction alone is not enough. The Court
ought to have adequate and proportionate sentencing powers both
in relation to the organisation and the culpable individuals within.
9.2 The proposed legislation would provide
the Court with two powers in relation to dealing with an organisation
convicted of the new offence of corporate manslaughter, but there
are no proposals for dealing with the culpable individuals within
the organisation. The powers are as follows:
(i) Sentencing the organisation to a fine.[87]
(ii) Make a remedial order against the organisation.[88]
9.3 In relation to the fining of a convicted
organisation, the fine could be unlimited due to the fact that
the offence could only be tried on indictment.
9.4 In relation to the making of a remedial
order, the Court could order the convicted organisation to take
specified steps to remedy the breach and/or any matter that appears
to the Court to have resulted from the breach and to have been
a cause of the death.
9.5 We set out below our comments on the
proposed legislation and our proposals for amendment. In doing
so, we have not concentrated solely on the effect of the proposed
legislation on large organisations; we have also considered its
effect on smaller organisations. We are aware that the proposed
legislation is directed at the perceived inability of the current
law to deliver a successful prosecution of a large company with
complex management structures. However, we note that the proposed
legislation applies to a corporation[89],
which is defined as any body corporate wherever incorporated not
including a corporation sole[90],
and abolishes the common law offence of gross negligence manslaughter
in its application to corporations[91].
Accordingly, a small company would not be liable to prosecution
for the common law offence of gross negligence manslaughter and
would have to be proceeded against under the proposed legislation.
10. Financial Penalties
10.1 In relation to corporate accountability
generally and corporate manslaughter specifically, financial penalties
levied against organisations are problematic and lack sufficient
teeth. We set out below a variety of reasons why we believe that
other forms of sentencing powers ought to be available:
(i) A fine fails to provide a sufficient
deterrent to an organisation: a fine of several hundred thousand
pounds diminishes next to profits of billions of pounds. That
is particularly the case in relation to a large or wealthy organisation
or an organisation that is part of a group of organisations. In
reality, fines only really punish the innocent shareholders, creditors
or employees who suffer redundancy as a result. In addition, as
unattractive as it may seem, organisations, especially those
that operate in high-risk industries, may be compelled to factor
into their running costs the possibility of a very large fine.
(ii) Offences under the Health and Safety
at Work Act 1974 can attract very heavy fines. However, such offences
are investigated by the Health and Safety Executive and the fines
are generally viewed in a regulatory context. It is proposed that
corporate manslaughter will be a criminal offence investigated
by the Police and prosecuted by the Crown Prosecution Service
or with the consent of the Director of Public Prosecutions. Accordingly,
a distinction should also be made in the penalties available on
conviction for such a serious criminal offence.
(iii) The Powers of Criminal Courts (Sentencing)
Act 2000[92]
states that the Court, when imposing a fine, shall make an order
fixing a term of imprisonment in default of payment. Obviously,
the threat of a sentence of imprisonment in default of the payment
of a fine has no deterrent effect on an organisation and the sentence
of imprisonment in default would be unenforceable against the
organisation. However, in default of payment, the Magistrates'
Court enforcing a fine can issue a warrant of distress; apply
to the County Court and/or the High Court for attachment of debts
or garnishee proceedings, a charging order, or the appointment
of a receiver for land or rents and profits; and, where a warrant
of distress has been issued against a company and it appears that
the company's assets are insufficient, apply under the Insolvency
Act 1986 for administration or winding up. (It is worthy of note
that such procedures are rarely, if ever, invoked, partly, no
doubt, because they require a great deal of resources.) Nonetheless,
a convicted organisation may still be able to escape liability
to pay the fine by ceasing to exist (voluntary liquidation, dissolution
etc.). In addition, the culpable individuals within a convicted
organisation would be able to escape liability to pay the fine
by starting a new company, as the fine would be the liability
of the convicted organisation alone, and be able to continue business
without having a criminal conviction or the burden of a heavy
fine.
(iv) A fine would not prevent culpable individuals
within a convicted organisation from setting up a new business
or managing another organisation, which would leave the public
exposed to the consequences of possible future similar conduct
by the same individuals. This raises the issue as to whether there
ought to be provisions in place to deal with the culpable individuals
within the organisation and even when they leave the organisation
(see below for further discussion on this point).
(v) There is little or no practical purpose
in fining government departments, as it would effectively involve
the recycling of public money through the Treasury. However, in
the event that such an organisation was convicted of corporate
manslaughter, the Court ought to be able to pass a sentence that
would have a punitive effect on the organisation and a deterrent
effect on like organisations.
11. Remedial Orders
11.1 As stated above, the proposed legislation
would provide the Court with the power to issue a remedial order
requiring the convicted organisation to take specified steps,
within a specified time, to remedy the breach in question and/or[93]
to remedy any matter that appears to the Court to have resulted
from that breach and to have been a[94]
cause of the death. Failure to comply with such an order would
render the organisation liable to a fine (see above for discussion
on the problems associated with fines).
11.2 It is imperative that the Court has
access to powers to deal with identified risks. However, it is
the common experience of practitioners in the area of the prosecution
of organisations for gross negligence manslaughter that the investigations
and prosecutions can take a very long time. Under the proposed
legislation, the Court's power to make remedial orders would only
become effective after conviction, long after the death had occurred
and, significantly, the risk identified. Such delay could result
in the unnecessary further loss of life and injury.
12. Our Proposals
12.1 In summary, in order that organisations
and the individuals within such organisations take seriously their
responsibility to guard against the avoidable and unnecessary
loss of life, we believe that the Court requires more effective
sentencing powers to strike at the heart of the organisation and
the individuals within. In addition, we believe that other ancillary
powers and proceedings are required to ensure that investigations
and prosecutions are effective and that safe systems of work are
maintained, implemented and promoted. We set out below our proposals,
which can be separated into four categories, as follows:
(i) Extension to the power to make remedial
orders.
(ii) Disqualification proceedings and individual
liability.
(iv) Avoiding the frustration of criminal
proceedings by dissolution etc.
13. Extension to the Power to Make Remedial
Orders
13.1 As stated above, under the proposed
legislation, the Court's power to make remedial orders would only
become effective after conviction. In order to avoid unnecessary
further loss of life and injury, it might be said that it would
be preferable for the power to make a remedial order to be available
to the Court right from the start of the investigation. The ensuing
investigation and possible prosecution could then uncover the
cause and attribute liability in the knowledge that interim measures
had been taken to address the risk. However, we have very real
concerns about the Court having such a power prior to a conviction,
as follows:
(i) It is likely that the power would be
viewed as disproportionate and in breach of Human Rights law.
(ii) It would create an overlap of powers
between the Health and Safety Executive and the Court, which in
turn would create uncertainty.
(iii) As a supervisory, regulatory and enforcement
authority, the Health and Safety Executive is far more experienced
and qualified to exercise such a power.
(iv) It is likely that a significant amount
of time would pass before an organisation was charged and the
matter came before the Court.
13.2 Therefore, we believe that the responsibility
to ensure that unnecessary further loss of life and injury is
avoided should remain with the Health and Safety Executive: informed
action could be taken immediately. However, we believe that the
Court ought to be able to make recommendations early on to ensure
that the necessary action has been taken by the Health and Safety
Executive.
13.3 In addition, further types of orders
may be required, as follows:
(i) The power to issue an improvement notice
after conviction requiring the organisation to improve specified
conditions.
(ii) The power to issue a prohibition notice
after conviction prohibiting the organisation from undertaking
a specified activity.
(iii) The power to recommend after conviction
the revocation of any relevant licence or statutory authorisation
allowing the organisation to undertake its respective business
activity.
(iv) The power to order the seizure of dangerous
or defective equipment etc prior to conviction and the forfeiture
and destruction of such equipment etc after conviction.
14. Disqualification Proceedings and Individual
Liability
14.1 As stated above, a fine would not prevent
culpable individuals within a convicted organisation from setting
up a new business or managing other organisations, which would
leave the public exposed to the consequences of possible future
conduct by the individuals who had already been integral in the
management and/or running of an organisation convicted of corporate
manslaughter. Therefore, it may be worth considering the introduction
of a regime similar to that currently in force under the Director's
Disqualification Act 1986 that would enable separate proceedings
to be brought against culpable individuals within the organisation
after the organisation had been convicted of corporate manslaughter.
14.2 Any individual who could be shown to
have had some material influence on, or material responsibility
for[95],
the way in which the relevant activity of the organisation was
managed and/or organised, which was a substantial (not minimal)
cause[96]
of the death should be subject to disqualification from acting
in a similar role in any undertaking[97]
carrying on business or activity in England and Wales. Normally,
the disqualification should be for a limited time, but, in the
most serious cases, it could be unlimited. Acting in contravention
of a disqualification should be a criminal offence punishable
by an unlimited fine, imprisonment or both.
14.3 Disqualification would protect the
public and provide a meaningful deterrent for individuals, as
it would have a direct effect on their personal income. It may
also be worth considering the possibility of being able to bring
disqualification proceedings against individuals within the parent
organisation or of other organisations in the group who exercised
control or influence over the management of the company that was
convicted of corporate manslaughter.
14.4 However, disqualification would still
only be a regulatory matter and not a criminal conviction. A further
step could be to criminalise the acts or omissions of individuals
in a similar way to Section 36 and Section 37 of the Health and
Safety at Work Act 1974.
14.5 Section 37 states:
(1) Where an offence under any of the relevant
statutory provisions committed by a body corporate is proved to
have been committed with the consent or connivance of, or to have
been attributable to any neglect on the part of, any director,
manager, secretary or other similar officer of the body corporate
or a person who was purporting to act in any such capacity, he
as well as the body corporate shall be guilty of that offence
and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate
are managed by its members, the preceding subsection shall apply
in relation to the acts and defaults of a member in connection
with his functions of management as if he were a director of the
body corporate.
14.6 Section 36 states:
(1) Where the commission by any person of
an offence under any of the relevant statutory provisions is due
to the act or default of some other person, that other person
shall be guilty of the offence, and a person may be charged with
and convicted of the offence by virtue of this subsection whether
or not proceedings are taken against the first-mentioned person.
14.7 The penalties available upon conviction
for such an offence should be an unlimited fine, imprisonment
or both.
15. Other New Powers
15.1 Clearly, the Court will have its ordinary
powers to make a compensation order and a costs order. However,
we suggest that other powers that may be worth considering are
as follows:
(i) The power to make a restraint order over
the organisation's assets to ensure the availability of funds
to pay any resultant fine.
(ii) The power to direct the use of restrained
funds to pay a fine.
(iii) The power to order the appointment
of a temporary health and safety consultant, director or management
receiver to ensure the implementation, promotion and/or administration
of a safe system of work.
(iv) The power to order monthly reports on
the adequacy of any relevant safe systems of work.
(v) The power to disqualify the organisation
from undertaking certain activities for a limited time or, in
the most serious cases, for an unlimited time.
15.2 In addition, in order to aid in the
investigation of suspected offences of corporate manslaughter,
we believe that it would be beneficial for the Police to have
additional investigatory powers such as being able to apply to
the Court for an order for the provision of documents, an order
for the attendance at interview, an order for the provision of
information etc.
16. Avoiding the Frustration of Criminal
Proceedings by Dissolution etc . . .
16.1 It is also worth noting that it may
be possible to frustrate criminal proceedings against an organisation
for an offence of corporate manslaughter by its individuals dissolving
the company, deliberately making it insolvent etc Before charge
or trial those same individuals could then go on to set up a new
organisation undertaking exactly the same business as the earlier
organisation (a "phoenix" organisation). Such conduct
would leave the public exposed to the consequences of possible
future conduct by individuals who had already been integral in
the management and/or running of an organisation suspected of
corporate manslaughter.
16.2 In such circumstances, any powers available
to the Court after conviction would be useless, including any
power to instigate disqualification proceedings, as they would
necessarily require a conviction. Therefore, provisions may need
to be put in place to enable proceedings to be instigated or continued
against an organisation despite its insolvency or dissolution
and/or against the phoenix organisation. Alternatively, it may
be necessary to ensure that an organisation remains in existence
for a prosecution by making its assets the subject of a restraint
order with the appointment of a management receiver. The Court
would need to be able to make such restraint orders and appoint
such management receivers in the very early stages of an investigation,
as is possible under the new asset restraint regime under the
Proceeds of Crime Act 2002.
17. Conclusion
17.1 We believe that the proposed penalties
available on conviction are inadequate. They do not provide an
effective deterrent or a sufficiently punitive effect. In addition,
we believe that the proposed legislation does not provide the
Court with sufficient and effective powers to ensure that individuals
and organisations take seriously their responsibilities to guard
against the avoidable and unnecessary loss of life. Further, we
believe that the proposed legislation should provide the Court
with more powers to ensure that investigations, prosecutions,
and the promotion of safe systems of work are effective.
CONCLUSIONS
1. Are the terms of the Bill sufficiently
precise?
(a) The requirement for the activity in
question to have been managed or organised by senior managers
Our foremost concern is that this requirement
is likely to be as problematic as the existing law in achieving
successful prosecutions for corporate manslaughter. We would suggest
that it is too restrictive to limit the application of the Bill
to senior managers who play a role in management of the organisation
as a whole. The concern is that in large organisations this requirement
would incentivise the delegation of responsibility down the management
chain, thereby intentionally circumventing potential liability.
Furthermore, the reference to senior managers will inevitably
result in smaller organisations being held to account and more
easily prosecuted than larger organisations. The creation of a
two-tier system of liability is not only inequitable, but replicates
one of the key criticisms of the existing legislation.
We therefore suggest that the legislation requires
management failures to be those of managers rather than senior
managers, with a manager being defined as someone who plays a
significant role in the organisation.
(b) The requirement to prove pursuit of
profit
The draft Bill's requirement that prosecutors
must prove that the gross negligence was in pursuit of profit
is an additional unnecessary burden. Our concern is that the difficulty
of proving a motive of economic profit may create a loophole whereby,
despite serious failings, organisations escape conviction because
an intention to create profit could not be proved.
(c) Limitation of the "duty of care"
We question whether it is necessary to define
and limit "duty of care".
2. Should it extend to all Government bodies
and unincorporated associations?
(a) The broad application of the proposed
exemptions
Our key criticism is that although the draft
Bill explicitly removes blanket Crown immunity, the exceptions
created in its place are too broad and will still preclude many
Crown bodies being properly held to account for deaths arising
out of their management failures.
(b) The apparent exclusion from liability
of public bodies carrying out an exclusively public function
The limitation of the duty of care in Clause
4 would appear to exclude from liability public bodies where they
are carrying out an exclusively public function. The definition
contained in the draft Bill is unsatisfactory and would, inter
alia, appear to extend to police forces insofar as they are
carrying out their public functions. We consider that the legislation
should extend to police forces in the exercise of their public
functions. To limit the liability of police forces in this way
would be to fail to ensure accountability in an area where it
is vitally necessary.
(c) Inclusion of the Prison Service within
the scope of the new corporate manslaughter legislation
We would suggest that failure to include the
Prison Service within the scope of the new legislation would not
only result in inadequate scrutiny, but may well constitute a
breach of Articles 2 and 13 of the European Convention of Human
Rights.
(d) Inclusion of unincorporated associations
within the scope of the new corporate manslaughter legislation
We make the case that unincorporated associations
should be included within the term "organisation" and,
therefore, subject to the proposed Bill. We would argue that applying
the law differently, depending upon whether a body is incorporated
or not, will result in a wholly arbitrary and unsatisfactory distinction,
which may breach Article 14 of the European Convention of Human
Rights.
3. Should there be sanctions available other
than fines on conviction?
(a) Inadequate financial penalties
We believe that the proposed penalties available
on conviction are inadequate. The financial penalties available
lack sufficient teeth and therefore fail to act as an effective
deterrent or to provide a sufficiently punitive effect.
(b) Insufficiency of sentencing powers
We consider that the proposed legislation does
not provide the Court with sufficient and effective powers to
ensure that individuals and organisations take responsibility
to guard against avoidable and unnecessary loss of life. We therefore
suggest that other forms of sentencing powers ought to be made
available.
(c) Disqualification from acting in a similar
role in any future undertaking
We argue that any individual who is shown to
have had a material influence on the management of the organisation
in question should be subject to disqualification from acting
in a similar role in any undertaking in the future.
(d) Powers to ensure the effectiveness of
investigations, prosecutions, and the promotion of safe systems
of work
We believe that the proposed legislation should
provide the Court with more powers to ensure that investigations,
prosecutions, and the promotion of safe systems of work are effective.
We would suggest that such powers may include the power to make
a restraint order over an organisation's assets, the power to
direct the use of restrained funds to pay a fine and the power
to appoint a temporary health and safety consultant. We also consider
that it would be beneficial for the police to have additional
investigatory powers.
(e) The limited effectiveness of the proposed
Remedial Orders
We consider that the proposed remedial orders
would only become effective after conviction, long after the death
had occurred and, significantly, the risk had been identified.
However, we believe that the responsibility of ensuring the avoidance
of further loss of life remains with the Health and Safety Executive.
Nonetheless the Court ought to have the power to make recommendations
early on in proceedings to ensure the Health and Safety Executive
take any necessary action.
(f) Avoidance of frustration of criminal
proceedings.
We consider it may be possible to frustrate
proceedings by dissolving the company or making it insolvent.
We therefore suggest that provisions be put in place to enable
the instigation or continuance of proceedings in relation to such
defunct companies.
86 Edwards v UK [2002] ECHR 303. Back
87
Clause 1(4) of the Corporate Manslaughter Bill. Back
88
Clause 6 of the Corporate Manslaughter Bill. Back
89
Clause 1(2) of the Corporate Manslaughter Bill. Back
90
Clause 5 of the Corporate Manslaughter Bill. Back
91
Clause 13 of the Corporate Manslaughter Bill. Back
92
Section 139. Back
93
We assume that the semicolon in Clause 6(1) can be interpreted
to mean "and/or". Back
94
We assume that the phrase "a cause of the death" in
Clause 6(1)(b) is the equivalent of "the cause or one of
the causes". Back
95
It may also be necessary to show that the senior manager was aware
of, consented to, or connived to the way in which the organisation's
activities were managed or organised. Back
96
We note that the Bill refers on a number of occasions to the cause
of the death, as opposed to one of the causes. Back
97
The term "undertaking" may need to be defined in far
broader terms than the term "organisation" to include
unincorporated associations. Back
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