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Clause 7: Child-protection and probation functions
35. Clause 7 provides that the offence does not apply in relation to the exercise of functions to protect children from harm or in relation to the activities of probation services (or equivalent bodies in Scotland and Northern Ireland). Local authorities and probation services will be covered by the offence in respect of ensuring the safety of their employees or the safety of the premises they occupy. The Bill does not, however, apply in relation to the manner in which they exercise various statutory functions. Legislation imposes a number of functions and duties on local authorities to safeguard the welfare of children. These are in some circumstances designed to protect a child from being harmed, for example, powers to take a child into care. The Bill does not apply in relation to the exercise (or the failure to exercise) such powers. The Bill also does not apply in relation to the responsibilities of probation boards (or other equivalent public authorities) to supervise offenders or provide accommodation in approved premises. It is unlikely that such bodies would owe a duty of care should a person be killed in connection with such activities (for example, if a child was not identified as being at risk and taken into care and was subsequently fatally injured). This clause makes it clear that such circumstances are not covered by the offence.
Clause 8: Factors for jury
36. Clause 1(4)(b) sets out the test for assessing whether the breach of duty involved in the management failure was gross. The test asks whether the conduct that constitutes this failure falls far below what could reasonably have been expected. Whether this threshold has been met will be an issue for the jury to determine. The existing common law offence of gross negligence manslaughter asks whether the conduct was so negligent as to be criminal.
37. To provide a clearer framework for assessing an organisation's culpability, clause 8 sets out a number of matters for the jury to consider. In particular, these put the management of an activity into the context of the organisation's obligations under health and safety legislation, the extent to which the organisation was in breach of these and the risk to life that is involved. Clause 8 also provides for the jury to consider the wider context in which these health and safety breaches occurred, including cultural issues within the organisation such as attitudes or accepted practices that tolerated breaches. When considering breaches of health and safety duties, juries may also consider guidance on how those obligations should be discharged. Guidance does not provide an authoritative statement of required standards and therefore the jury is not required to consider the extent to which this is not complied with. However, where breaches of relevant health and safety duties are established, guidance may assist a jury in considering how serious this was.
38. These factors are not exhaustive and clause 8(4) provides that the jury is also to take account of any other relevant matters.
Clause 9: Remedial Orders
39. In addition to the power under clause 1 to impose an unlimited fine, clause 9 gives the courts a power to order an organisation convicted of the new offence to take steps to remedy the management failure leading to death. It also enables the court to order the organisation to remedy any consequence of the management failure, if it appeared to the court to have been a cause of death. For example, where the management failure related to inadequate risk assessment and monitoring procedures, the consequence of which was inadequate safety precautions resulting in death, the court would be able to order the convicted organisation to improve both the management of risk and the resulting safety precautions.
40. Applications for remedial orders must be made by the prosecution, who must set out the proposed terms of the order. The convicted organisation will have an opportunity to make representations to the court about the order. The order must specify how long the organisation has to comply with the required steps. This period can be extended on application. Failure to comply with a remedial order is an indictable offence for which the sanction will be an unlimited fine.
Clause 10: Application to Crown bodies
41. The general presumption is that legislation does not apply to the Crown unless this is explicitly the case. Clause 10(1) confirms the Bill's application to the Crown and provides that the immunity that generally prohibits the prosecution of the Crown does not apply for the purposes of the new offence. Taken together, this provision and clause 1 mean that Crown bodies that are either bodies corporate or are listed in Schedule 1 to the Bill are subject to the new offence.
42. The liability of the Crown in the law of negligence is governed by the Crown Proceedings Act 1947. This makes the Crown liable as an employer or occupier and also vicariously liable for the torts of its servants and agents. The new offence is, however, predicated on an organisation owing a personal duty of care to the victim. Clause 10(2) bridges this difference by requiring Crown bodies to be treated as owing, for the purposes of the offence, the duties of care that they would owe if they were ordinarily constituted corporate bodies independent of the Crown.
43. Clause 10(3) and (4) addresses the fact that many of the activities and functions carried out by government departments and other Crown bodies are in law performed by the Crown rather than that body. For example, civil servants in government departments are employed by the Crown rather than the department for which they work. If provision were not made to deal with this, it might mean that the new offence did not work properly in its application to Crown bodies: conduct relevant to the offence might legally be attributable to the Crown rather than the body concerned and the employer's duty of care might technically be considered to be owed by the Crown rather than by the relevant department. These provisions ensure that the activities and functions of government departments and other Crown bodies can properly be attributed to the relevant body. Clause 10(5) ensure that the relevant parts of these provisions apply to Northern Ireland departments, which are corporate bodies and therefore, although Crown bodies, do not need to be listed in Schedule 1 for the offence to apply.
Clause 11: Application to armed forces
44. Clause 11 defines the term "armed forces" used in clauses 4 and 6 of the Bill so that it includes the Royal Navy, Army and Air Force. Clause 11 also addresses the fact that technically members of the armed forces are not employed by the Ministry of Defence. Provision is required in the same way as described in paragraph 43 above to ensure that a duty of care as employer is owed to such personnel by the Ministry of Defence for the purposes of the offence.
Clause 12: Application to police forces
45. As police forces are not incorporated bodies, similar issues arise for the application of the offence to them as with Crown bodies. (This does not apply to police authorities, which are bodies corporate under the Police Act 1996 or the Police (Scotland) Act 1967 and to which the offence therefore applies separately and as for any other corporate body.) Clause 12 therefore makes similar provision to clause 10 and ensures that police officers are to be treated as the employees of the police force for which they work (and are therefore owed the employer's duty of care by the force); it also makes similar provision in relation to special constables and police cadets, police trainees in Northern Ireland and police officers seconded to the Serious Organised Crime Agency or National Policing Improvement Agency. It also ensures that police forces are treated as occupiers of premises and that other conduct is attributable to them as if they were distinctly constituted bodies.
Clause 13: Procedure, evidence and sentencing
46. Generally, provisions relating to criminal and court procedure, and sentencing, relate to the prosecution of individuals. Many of these will also be applicable to corporate bodies. But some separate provisions have been enacted to cater for the specific position of corporations. For example, section 33 of the Criminal Justice Act 1925 enables a corporation to plead through its representative as it cannot plead in person. It is possible that these provisions, either general or tailored, will not apply to Government departments or other bodies listed in Schedule 1 or police forces because they are not corporate bodies. Clause 13 ensures that for the purposes of the new offence all such provisions apply to those Government departments or other bodies listed in Schedule 1, as well as to police forces, in the same way as they apply to corporations.
47. Clause 13 also enables any necessary modifications to be made to existing provisions by order. For example, a reference in the rules on criminal procedure to a director or the secretary of the corporation would need modification in order to apply to a department or police force. Such orders would be subject to the negative resolution procedure (that is, they will become law after being laid before Parliament for a certain period of time unless specifically annulled).
48. Similar provision for Scotland can be achieved under the existing powers of the High Court to regulate procedure by Act of Adjournal.
Clause 14: Transfer of Functions
49. This clause makes provision for cases where functions have been transferred between (or out of) Government departments or other bodies listed in Schedule 1, incorporated Crown bodies or police forces. In summary, prosecutions will be commenced, or continued, against the body that currently has responsibility for the relevant function. But if the function is transferred out of the public sector entirely, proceedings will be against the body by which the function was last carried out. For machinery of Government changes, the effect of this is to place responsibility for defending proceedings with the organisation within which a function currently sits. But in order to retain the Crown's overall liability for proceedings if a function is transferred to a non-Crown body (for example, if a function were privatised), liability remains with the Crown body that previously performed the function.
50. In some circumstances, a different approach might be warranted. For example, where a function transfers between Government departments but there is no corresponding transfer of personnel, it might be more appropriate for the department responsible at the time of the fatality to retain liability. Clause 14 therefore includes provision for the Secretary of State to make an order specifying that liability rest with a different body. Such orders would be subject to the negative resolution procedure.
Clause 15: DPP's consent required for proceedings
51. The consent of the Director of Public Prosecutions (or DPP for Northern Ireland in the case of that jurisdiction) is needed for proceedings to be instituted. In Scotland all proceedings on indictment are instigated by the Lord Advocate. There is therefore no need for a consent mechanism.
Clause 16: No individual liability
52. The offence sets out a means of attributing certain failures within an organisation to the body itself for the purposes of prosecuting it for manslaughter. It therefore only applies to organisations and does not apply to individuals, be they directors or anyone else within an organisation. Individuals who assist or encourage the commission of an offence can also be convicted of an offence where they have aided, abetted, counselled or procured it or, in Scotland, are guilty art and part. This is known as secondary liability - the person is guilty of the offence itself, but not as the primary offender. Clause 16 expressly excludes secondary liability for the new offence. However, the new offence does not affect an individual's potential liability for any other offences such as the existing common law offence of gross negligence manslaughter, culpable homicide or health and safety offences.
Clause 17: Abolition of liability of corporations for manslaughter at common law
53. Clause 17 abolishes the application of the existing common law offence of gross negligence manslaughter to corporate bodies. Prosecutions for corporate manslaughter would in future fall under this legislation. This clause does not affect the common law offence of culpable homicide in Scotland.
Clause 18: Power to amend Schedule 1
54. This clause sets out the procedure for amending Schedule 1 (the list of Government departments and similar bodies to which the offence applies). Changes that are consequential on machinery of Government changes are to be made by the negative resolution procedure. This includes changes to the name of a particular department, as well as the addition of a department (if the reason for adding it is that it will have functions all of which were previously exercisable by another organisation to which the offence applies) or deletion of a department (again, if the reason is that all of its functions are being transferred to another organisation to which the offence applies, or if the department is being abolished). The effect is that changes which alter the range of activities or functions in relation to which the new offence applies will require a resolution by Parliament before they can come into effect, but otherwise the changes will take effect unless disapproved by Parliament.
Clause 19: Orders
55. Orders under the Act are to be made through secondary legislation. Order-making powers (clauses 13, 14 and 18) provide whether the order is to be made under the negative or affirmative resolution procedure. Clause 19 defines these procedures. The commentary on these clauses above describes the implication of this for each order-making power.
Clause 20: Minor and consequential amendments
56. Clause 20 gives effect to Schedule 2 (see below).
Clause 21: Commencement and saving
57. Clause 21(1) provides for the legislation to be brought into force by order - known as a commencement order - made by the Secretary of State. Subsection (2) makes it clear that the legislation is not retrospective. Subsection (3) makes provision for the existing offence of manslaughter by gross negligence to remain in place in respect to corporations for conduct and events that occur prior to commencement. Proceedings under the current law will similarly be unaffected.
Clause 22: Extent and territorial application
58. Clause 22 deals with extent and territorial application. The Bill extends to the whole of the UK. (Amendments to other legislation have the same extent as the provision they are amending: clause 22(2).)
59. Clause 22(3) and (4) set out the circumstances in which the courts will have jurisdiction for the new offence. Under section 10 of the Offences Against the Person Act 1861, English courts have jurisdiction in a case of homicide if the injury causing death is inflicted in England and Wales, or in a place where the English courts have jurisdiction (such as on a British ship), even if the death occurs elsewhere. The Bill makes similar provision to this (but on a UK basis reflecting the application of the new offence across the UK), providing for jurisdiction if the harm causing death is sustained in the United Kingdom or other locations where criminal jurisdiction currently extends. Clause 22(4) ensures that the offence will still apply if the harm resulting in death is sustained as a result of an incident involving a British ship (or aircraft or hovercraft), but the victim is not on board when he suffers that harm. For example, if a grave safety failing resulted in a ship being wrecked and the passengers being killed by drowning.
Clause 23: Short title
60. The short title of the Bill is the Corporate Manslaughter and Corporate Homicide Bill. This reflects the fact that the offence will be known as corporate manslaughter in England and Wales and Northern Ireland, and corporate homicide in Scotland.
Schedule 1: List of Government departments etc
61. The Schedule sets out the list of Government departments and other similar bodies to whom the offence applies. This does not cover Crown bodies that are incorporated (for example, such as the Health and Safety Commission and Executive) to which the offence applies by virtue of clauses 1(2)(a) and 10(1) without further provision.
Schedule 2: Minor and consequential amendments
62. Schedule 2 updates references to homicide offences in the Coroners Act 1988 to include the new offence and ensures that the term "person" in that Act is wide enough to include organisations capable of committing the new offence but which are not incorporated bodies. The Schedule also updates legislation in England and Wales and Northern Ireland that provides for a case to be retried in certain circumstances following acquittal and for appeals by the prosecution against certain terminating rulings. Currently, those provisions apply to specific, listed offences, including manslaughter (whether by individuals or a corporate body). These lists need amendment to reflect that future manslaughter proceedings against corporations will be for the new offence.
FINANCIAL EFFECTS OF THE BILL
63. Because the Bill does not introduce any new regulatory burden for industry or the public sector, costs arising from the offence are expected to be small. However, it is possible that organisations may seek legal advice and undertake additional training in preparation for the Bill and estimates of these costs across industry are around £12 million.
64. It is estimated there will be 10 - 13 additional cases of corporate manslaughter/homicide a year following implementation of the offence. Costs of defending these are likely to be around £5 - 6.5 million. The costs of prosecution service preparation for these cases is expected to be £2 - 2.5 million and court costs are expected to be £0.1 - 0.2 million. However, because the offence is aimed at the sort of behaviour which would already be subject to prosecution (either under the existing law of corporate manslaughter or health and safety law), not all of these costs will be in addition to costs currently incurred both by defendants and the Crown. In addition there are likely to be savings as a result of fewer cases of corporate manslaughter failing at court which currently can result in large sums being awarded by the courts to defendants in respect of costs.
PUBLIC SERVICE MANPOWER EFFECTS OF THE BILL
65. It is anticipated that there might be a small increased need for additional staff in the Crown Prosecution Service (CPS) as a result of the increase in the number of referrals and prosecutions taken forward by the CPS. Because it is likely that there will be only a small number of additional cases in Scotland and Northern Ireland a year (2 or 3), the work should be absorbed without the need for additional staff.
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
66. A regulatory impact assessment (RIA) was published with the draft Bill in 2005 and further comments were sought on the RIA or any other costs identified. An updated RIA has been published with the Bill, including extension to Scotland and Northern Ireland.
67. The offence will apply to all corporate bodies, the Crown and the police. However, the offence does not introduce new standards for the management of health and safety and therefore does not increase regulatory burdens for these organisations.
68. Some costs may be incurred as a result of organisations seeking legal advice or implementing training and there will be some increased costs of criminal trials (as detailed above). These costs are likely to be in total £19.2 - 21.2 million. These costs need to be seen in the light of any savings as a result of fewer workplace injuries and accidents. The cost to society as a whole of workplace accidents and ill-health is estimated to be £20 - 32 billion. It is hoped that the effect of the Bill will be to encourage organisations which are not complying with health and safety laws to do so. In particular, it should provide an added incentive to organisations with very poor safety standards to improve. In overall terms, the costs identified with the new offence amount to less than 0.1% of the costs of work-related accidents and ill-health, so even a very small reduction in work-related deaths and injury as a result of better compliance would represent significant savings.
69. On balance, respondents agreed with the Government's assessment in 2005 that there would be little additional cost to those organisations already complying with health and safety, particularly as the offence would be linked to existing health and safety obligations and targeted at the most serious cases.
EUROPEAN CONVENTION ON HUMAN RIGHTS AND EQUALITY OF OPPORTUNITY IN NORTHERN IRELAND
70. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention (as defined by section 1 of that Act).
71. A statement of Convention compatibility has been signed in respect of the Bill by the Secretary of State for the Home Department (the Rt Hon John Reid MP).
72. The Bill raises 3 potential issues under the Convention.
73. The first is whether there is an obligation under Article 2 of the Convention, the right to life, for such an offence to be introduced, making any exemptions from the offence incompatible with the Government's obligations. A recent decision of the Grand Chamber in the case of Oneryildiz v Turkey (App. No. 48939/99) suggests that in certain circumstances a criminal remedy must be available in cases of unintentional death. However, this concerned the prosecution of individuals and not legal persons and there is no uniform practice in the rest of Europe in the application of the criminal law to legal persons or emanations of the State. There would not therefore appear to be an obligation under the Convention for States to have an offence of corporate manslaughter.
74. The second issue is whether introducing such an offence, but not applying it to unincorporated bodies, or certain public functions, is discriminatory contrary to Article 14 (taken with Articles 2 and 13). Article 14 prohibits discrimination in the enjoyment of Convention rights on any ground such as sex, race, colour, language, religion or other opinion, national or social origin, association with a national minority, property, birth or other status. Any difference in treatment between those who may or may not be victims of the new offence, depending on whether their death is caused by an incorporated or unincorporated body or by the exercise of functions to which the offence does not apply, would not be a difference based on the personal characteristics of the deceased, but rather the circumstances in which the offence applies. Accordingly, the offence does not appear to engage Article 14. If Article 14 were engaged, any difference of treatment is justifiable in light of the different nature of incorporated and unincorporated bodies, as well as the different position of those exercising public functions, including the public policy dimension of the decisions they must take and wider forms of accountability to which they are already subject (such as accountability to Parliament and under the Human Rights Act 1998).
75. The third issue the offence raises is the need for criminal offences to be sufficiently certain (Article 7). The current law of gross negligence manslaughter has been challenged on the basis that the test for criminality - conduct that is sufficiently grossly negligent to be criminal - is not sufficiently certain. The Court of Appeal rejected this challenge in R v Misra [2004] EWCA Crim2375. The new offence adopts a test of conduct "far below that which can reasonably be expected of the organisation in question". The Bill also contains guidance to the jury on factors to consider when assessing this issue and accordingly is considered to be sufficiently certain.
76. Section 75 of the Northern Ireland Act 1998 requires public authorities to have due regard to the need to promote equality of opportunity, and to have regard to the desirability of promoting good relations, between certain categories of people in Northern Ireland. A screening found no evidence of adverse or differential impact of the policy on any of the section 75 categories.
COMMENCEMENT
77. The provisions of the Bill will be brought into force by commencement order (see clause 21(1)).
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