Joint Committee On Human Rights Twenty-Seventh Report


Appendix


Letter from the Chair to the Rt Hon Dr John Reid, Secretary of State for the Home Department, re Corporate Manslaughter and Corporate Homicide Bill

The Joint Committee on Human Rights is considering the human rights compatibility of the Corporate Manslaughter and Corporate Homicide Bill, and would appreciate your answer to the following questions in relation to three points in particular which have arisen from the Committee's scrutiny of the Bill so far.

(1) Positive obligation to put in place effective criminal law provisions

The Explanatory Notes to the Bill state (at para. 78) that there does not appear to be an obligation under the ECHR for States to have an offence of corporate manslaughter.

The Committee notes, however, that it is well established in the case-law of the European Court of Human Rights that the State's primary duty under Article 2 ECHR is to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.[37]

The existence of the common law offence of gross negligence manslaughter satisfies this positive obligation to protect life against the gross carelessness of another individual. However, under the present law corporations can only be prosecuted for gross negligence manslaughter if such a prosecution can also be brought against an individual who can be "identified" with the corporation in the sense that he or she can be said to embody the corporation in his or her actions and decisions. In practice this means that the law of gross negligence manslaughter only applies to small corporations. Prosecution of larger corporations for this offence is in practice impossible because the number of directors and the devolution of responsibility within the corporation means that it is impossible to prove the requisite degree of fault on the part of an individual who can be said to be the "controlling mind" of the organization. The Government has accepted that the criminal law is deficient in this respect since the publication of its Consultation Paper on this subject in May 2000.

The case-law of the European Court of Human Rights is clear that in certain circumstances States are under an obligation to provide the protection of the criminal law in order to provide adequate protection for individuals against serious violations by other private parties of their right to physical integrity under Article 8 ECHR[38] and their right not to be subjected to inhuman or degrading treatment under Article 3.[39] The availability of a civil remedy against the private party is not enough in such cases. In the Committee's view, States are also under an obligation to provide the protection of the criminal law in order to provide adequate protection for individuals against serious violations by other private parties of their right to life under Article 2.[40]

Q.1: In light of the above, please explain the reasons why, in the Government's view, there is no obligation on the UK under Article 2 ECHR to permit recourse to the criminal law in circumstances where there has been a serious breach of the right to life as a result of the gross management failure of a large private organization, but no identifiable individual within the organization can be proved to be responsible?

In the Committee's view, the case-law of the Court of Human Rights is also clear that where loss of life has been caused by the gross carelessness of State officials or a public authority conducting a dangerous activity, the availability of civil, administrative or disciplinary remedies is not enough, and the positive obligation under Article 2 requires that those officials or the public authority responsible for endangering life be prosecuted not only for a criminal offence but for an offence which reflects the seriousness of the conduct causing death.[41]

Q.2: In light of the above, please explain the reasons why, in the Government's view, there is no obligation on the UK under Article 2 ECHR to permit recourse to the criminal law in circumstances where there has been a serious breach of the right to life as a result of the gross management failure of a public body conducting a dangerous activity, but no identifiable individual within the public body can be proved to be responsible?

(2) Restrictions on the scope and applicability of the new offence

The Committee is concerned that the effect of restricting the scope of the offence to situations where the organization owes a duty of care in negligence, the exclusion of unincorporated associations other than those scheduled to the Bill, the breadth of the exemptions for public bodies or bodies carrying out public functions, and the specific exemptions for certain activities of particular public bodies, is that there is a serious risk that the UK will be found to be in breach of Article 2 ECHR in the particular circumstances of a future case where the case-law of the Court requires that there be recourse to the criminal law. In particular, the effect of these provisions in the Bill is to preclude the possibility of prosecution for corporate manslaughter in precisely those contexts in which the positive obligation in Article 2 is at its strongest, and may require, in a particular case, that criminal prosecutions be brought: the use of lethal force by the police or army; deaths in custody; deaths of vulnerable children who should be in care, to name just a few examples of dangerous activities conducted by public authorities.

The Committee notes that the availability of other avenues of accountability, which is the main justification relied on by the Government for the restricted application of the new offence to public bodies, is not a factor which has proved persuasive with the European Court of Human Rights. On the contrary, in cases concerning public authorities the Court has often stressed the inadequacy of other mechanisms of accountability and the importance of the deterrent effect of the criminal law in preventing violations of the right to life.

Q.3: In light of the above, please explain why, in the Government's view, the Bill does not give rise to a risk that the UK will in future be found to be in breach of its positive obligation under Article 2 ECHR, to put in place an effective judicial system including recourse to the criminal law, when the effect of the restrictions on the scope of the offence and the exemptions and exclusions from its applicability, is that recourse to the criminal law would not be possible in circumstances where responsibility for loss of life lay with a public body, rather than any identifiable individual, for a serious management failure in its conduct of a dangerous activity?

(3) Discrimination

The Explanatory Notes to the Bill say that if Article 14 ECHR is 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. In the Committee's view, Article 14 is engaged because the various restrictions, exclusions and exemptions give rise to differential treatment of individuals in analogous situations in relation to their access to the criminal law in respect of negligently caused death.

The Committee notes that in its Consultation Paper on this subject issued in 2000 the Government accepted that as there is often very little difference in practice between an incorporated body and an unincorporated association, to restrict the scope of the offence by excluding unincorporated bodies "could lead to an inconsistency of approach and these distinctions might appear arbitrary."[42] To avoid that risk of arbitrariness, the Government at that stage proposed that the new offence should apply to "undertakings" as defined in the Health and Safety at Work Act 1974 which would include unincorporated as well as incorporated bodies. The Committee also notes that in the case-law of the European Court of Human Rights the public nature of a body's function has not been regarded as a reason for excluding criminal liability, but on the contrary has been treated as a factor which strengthens the obligation to ensure that recourse to the criminal law is available.

Q.4: In light of the above, please provide a more detailed explanation of the Government's justifications (assuming Article 14 to be applicable) for the Bill's differential treatment of unincorporated compared to incorporated bodies and of public bodies compared to private bodies.

Q.5: What are the Government's reasons for not making the offence apply to "undertakings" as it originally proposed in 2000?

I would be grateful if you could let me have your response to these questions by 24 October 2006.

9 October 2006



37   E.g. Osman v UK (1998) 29 EHRR 245 at para. 115. Back

38   X. and Y. v. The Netherlands, 8 EHRR 235 at paras 24-27. Back

39   A v UK (1999) 27 EHRR 611 at para. 22. Back

40   Osman v UK (above). Back

41   Oneryildiz v Turkey [GC], App. No. 48939/99, judgment of 30 November 2004.  Back

42   Home Office Consultation Paper (2000) at para. 3.2.3. Back


 
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