 House of Commons |
Session 2005 - 06 Publications on the internet Standing Committee Debates Corporate Manslaughter and Corporate Homicide |
Corporate Manslaughter and Corporate Homicide Bill |
The Committee consisted of the following Members:Emily
Commander, Sarah Hartwell-Naguib, Committee
Clerks †
attended the Committee Standing Committee BTuesday 24 October 2006(Afternoon)[Mr. Joe Benton in the Chair]Corporate Manslaughter and Corporate Homicide BillClause 3Meaning
of “relevant duty of
care” Amendment
moved [this day]: No. 92, in page 2, line 29, after
‘vehicle’, insert ‘, substance hazardous to
health,’.—[Tony
Lloyd.] 4
pm Tony
Lloyd (Manchester, Central) (Lab): I hope, Mr.
Benton, that you will give me some leeway and consider what I say now
not simply to be a repetition, but a
reminder. Amendment
No.92 is straightforward. The purpose of clause 3(4) is to delimit
construction or maintenance operations and members of the Committee
will see a whole series of activities that are caught by this part of
the Bill. What amendment No.92 seeks to do is insert the words
“substance hazardous to health” at page 2, line 29 after
“vehicle”. I do not wish to dwell on it, but it is a
matter of practical fact that substances hazardous to health are those
substances that can in some circumstances cause injury, but in some
circumstances can kill. It is important to recognise that in the
context of the Bill we are talking about those circumstances where
substances hazardous to health were sufficient to have resulted in
death. The purpose of
the amendment is simply to add words because at the moment it is not
obvious that among the activities listed, the failure to operate
properly and in a safe manner consistent with health protection in the
use of hazardous substances is covered by this part of the relevant
duty of care. The relevant duty of care must contain reference to the
question of substances hazardous to health. I would like the
Minister’s assurance—it would be helpful in terms of the
way in which the legislation is interpreted—that it is implicit
in the Bill that substances hazardous to health are included.
Alternatively, if he is unable to do that, will he accept that there
may be a need to amend the Bill? Obviously, I will listen to the
Minister’s words carefully and I hope we can make it clear that
there is no intent that these substances should be out of the scope of
the
Bill. Ian
Stewart (Eccles) (Lab): In support of my hon. Friend,
earlier in the sitting this morning the hon. Member for Beaconsfield
(Mr. Grieve) and other hon. Members talked about
the difference in breadth in terms of the Health and Safety at Work,
etc. Act 1974. Part I section 2(2)(b) of that Act talks about the use,
handling, storage and transport of articles and substances.
That clearly shows why my hon. Friend the Member for Manchester, Central
(Tony Lloyd) has tabled this amendment. If the Minister is unable to
accept the amendment, the words that he says as recorded in the
Official Report will become all
important.
Mr.
Dominic Grieve (Beaconsfield) (Con): I was about to
intervene on the hon. Gentleman, but as he has finished I will put in
my pennyworth. The
Health and Safety at Work, etc. Act 1974 was drafted in the 1970s
according to what I regard as rather old-fashioned principles of
drafting compared with those we have now; there was a tendency to dot
the i’s and cross the t’s. Therefore, the amendment
strikes me as being perfectly reasonable. That said, my reading is that
a hazardous substance would be covered by the “other
thing” in subsection (1)(a)(iv). However, it is a sign of
changes in the way we draft legislation that nowadays we put in far
more assumptions, rather than including every possible
item.
Ian
Stewart: Eminent as the hon. Gentleman is, he is not the
Minister, no matter what he thinks. It is the Minister whom we want to
hear.
Mr.
Grieve: In this context I am pleased not to be the
Minister—I shall leave him to answer for himself. I can only
give the hon. Gentleman the benefit of my thoughts in so far as I have
considered the amendment and wondered whether there was any merit in
what he and the hon. Member for Manchester, Central have
said.
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Gerry Sutcliffe): I welcome you to this
afternoon’s proceedings, Mr. Benton. I also thank my
hon. Friends the Members for Eccles (Ian Stewart) and for Manchester,
Central for their support for the amendment, which is important for the
reasons given. It is important that the Bill should cover the sort of
activities that have been referred to and I am pleased that they are on
the record. I am also grateful for the legal advice that the hon.
Member for Beaconsfield gave.
I am satisfied that the
substances that my hon. Friend the Member for Manchester, Central
talked about are properly covered by the Bill as it stands. Quite
rightly, subsection (1)(c)(iv) already refers to
“the use or keeping by the
organisation of any plant, vehicle or other thing.”
The last term is deliberately intended to
be very broad. It is certainly broad enough to cover the sorts of
substances that my hon. Friend is concerned about. As the hon. Member
for Beaconsfield said, the reason for including the term “other
thing”, which is not prescriptive, is that additional wording
could start debates about whether the intention was to exclude
substances that are not inherently hazardous to health, or arguments
about whether a substance is a hazard to health or simply dangerous. It
is important that the offence extends to the use of drugs in hospitals
and the storage of petrol.
I fully support the sentiments
of my hon. Friend in tabling the amendment. My reply is intended in no
way to diminish the importance of the topic or the need to ensure that
the Bill extends to hazardous substances.
However, I am satisfied that they are already properly covered and that
we would not improve the Bill by including a specific reference. I hope
that on that basis my hon. Friend is happy to withdraw the
amendment.
Tony
Lloyd: I am reassured by the Committee’s legal
adviser and even more so by the Minister. It was important that he
placed his words on the record. I am satisfied in any case that
hazardous substances were probably covered but, as the hon. Member for
Beaconsfield pointed out, there was a time when things would
automatically have been included beyond peradventure, whereas we now
perhaps leave a little more to interpretation. I can understand
arguments for both approaches, but what is important is that the
intention of Parliament has been made clear by the Minister’s
statement, so that it is clear in any future interpretation, and usable
in any proceedings, that the many substances that are hazardous to
health are covered by the Bill. I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
This is a probing
amendment, although behind the probe there is a certain amount of
wondering on my part about what the Government have done. Subsection
(3) establishes that although corporations will be tried by jury for
any allegation of corporate manslaughter, it seems that the trial will
fall into two distinct parts. It will remain within the jury’s
province to decide whether there has been a breach of any duty of care,
but the Government have spelt out that the decision of whether a duty
of care is owed to a particular individual by a corporation is a
question of law. I do not disagree with that—it is quite
clear. However,
subsection (3) also
states: “The
judge must make any findings of fact necessary to decide that
question.” The Minister
will correct me if I am wrong, but this seems to be a bit of a novelty
in our criminal law. I would normally expect the judge in a criminal
trial to determine the scope of the duty of care as a question of law
and to put that to the jury in the summing-up as part of a twofold
process, saying, “Members of the jury, you have first of all to
decide whether the facts amount to owing a duty of care. If you are
satisfied that they do, you must decide whether that duty has been
breached.” The judge would guide them on the law and explain
that a decision on the law was for him. However, the final decision
would still lie with the jury, which would decide if the facts, as
described and given to them by the judge, amounted to a duty of care in
the first
place. The
Government have gone for a completely new system. I am not necessarily
against that. I have a lot of confidence in jury trial. However,
removing this aspect of a jury’s role in deciding the primary
facts on which duty of care might be established is a bit of a novelty.
I am also puzzled as to how it will be done in practice. How will the
trial be split up so that the twofold process takes place? Presumably,
the prosecution will present its case to the judge and there will be an
opportunity for the defence counsel to submit that there is no case to
answer at half-time. However, that might not be enough
and the defence case might have to be presented; then the judge would
have to rule before he summed up to the jury as to whether he had
decided that there was a duty of care in existence in the case in
question and what the facts were upon which he made that decision. I
assume that the Government intend the courts to adopt that procedure,
but I should be grateful if the Minister explained how this will work
out in practice, because there is a certain novelty about
it. If
the jury will not be the arbiter of whether the facts are such that a
duty of care is owed—under the judge’s guidance on the
law—I am worried that we may risk juries reaching conclusions on
whether there has been a breach of duty of care that are incompatible
with the facts on which the judge has decided that the duty of care
exists in the first place. We need to think about
that. On
the whole, our criminal courts have moved away from the principle that
judges can direct juries to convict. The Minister may be familiar with,
or may remember, the Ponting case. Mr. Ponting admitted to a
national newspaper various facts about disclosing documents that were
subject to the Official Secrets Act. Frankly, the facts that he
admitted were the offence, and he as good as admitted the offence by
admitting to the set of facts. I recollect that the judge indicated to
prosecution and defence counsel that he was minded to give the jury a
direction to convict Mr. Ponting. The prosecution quickly
rowed away from that idea, because it thought that it was in rather
dangerous waters. As a result, Mr. Ponting was, rather
surprisingly, acquitted, because the jury took a robust and wholly
individual view of its own about whether he was
guilty. Perhaps in the
circumstances about which we are talking such a problem will not arise
in quite the same way. The judge will say, “I tell you as a
matter of law that a duty of care exists in this case. Therefore, all
you have to decide is whether it has been breached.” However,
although that sounds simple, one could face problems if the jury,
having listened to all the evidence, were not satisfied that a duty of
care existed at all, notwithstanding whatever the judge might or might
not tell them. One may end up with difficulties with a two-stage
process. I want to
make it clear to the Minister that I wish to hear more from him about
how the Government envisage that working, what discussions they have
had with the judiciary about how it would operate in practice and what
thought has been given to the practical difficulties of a two-stage
approach. 4.15
pm
Tony
Lloyd: I may be about to talk nonsense, but one of my
worries about the duty of care is that it is often breached when an
illegality is involved in the process. Let us consider the cockle
pickers’ accident. If illegal immigrants were working illegally
in that framework, would there be a breach of the duty of care? Would
it be a defence in the case of corporate manslaughter to argue that
there was no duty of care, so even though materially the same company
in the same circumstances would clearly have been guilty of corporate
manslaughter, it could avoid the charge and the penalty? What concerns
me is leaving a big hole in legislation affecting the most vulnerable
people in our society.
Mr.
Grieve: The hon. Gentleman describes a hazardous area in
which lawyers fear to tread. On the face of it, duties that are
specified in clause 3—under “Meaning of ‘relevant
duty of care’”—including, in particular, the
definitions of the law of negligence at the top of page 3 of the Bill
cover a duty to people who may be acting unlawfully themselves. I shall
give an example. I might have cited what I am about to describe
earlier, in which case I ask the Committee’s indulgence if I
repeat myself. I refer
to the case of young children who routinely trespass through a service
yard where lorries are manoeuvring. They are undoubtedly there as
trespassers. Notices are frequently put up saying that they should not
come into the yard and attempts are made to fence the yard to prevent
children from using it as a short cut. I had a similar case, although
it involved a little old lady who routinely used a marshalling yard as
a short cut to the
shops. The route was
used frequently, so the wire was often cut. Having simply tried to
fence it off, the company concerned took no further steps to have
regard to the fact that, when lorries were manoeuvring, occasionally
people were in the yard who should not have been there. The situation
results in a reversing lorry running over a child. My view is that,
notwithstanding the duties of care that are outlined or restricted,
that case would be capable of being prosecuted as corporate
manslaughter if it could be shown that there was a serious failure to
have regard to a clear and obvious risk that arose from the unlawful
activity. I give that as an example to the hon. Gentleman, and I do not
believe that that is something that could be
prevented. Matters
cut both ways. Undoubtedly, establishing whether or not a duty of care
exists is very much a matter for a trained lawyer, but the trouble
remains that the decision of juries will, I am sure, be influenced
about whether there is a breach of the duty of care by their attitude
and whether they regard it as common sense for there to have been a
duty of care in the first place. As the Ponting case highlighted,
whatever judges may tell juries in their summing up that the law says
that there was a duty of care in certain cases, it would be idle to
pretend that that may not have an impact on the way in which juries
view cases. When dealing with people who are engaging in unlawful
practices, juries may subconsciously or consciously have regard to that
when reaching their decisions. That is why I am so interested in
hearing from the Minister about how the Government think that the
system will work in practice. I have a very slight niggle that it may
prove to be a little more complicated than has been realised. Once a
judge starts removing decisions from the jury, there is the potential
for a clash between the two, which would lead to Court of Appeal
hearings and all sorts of difficulties. I would like to see whether we
can prevent
that.
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