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The point that the Minister makes about the organisation needing to be protected against frivolous prosecutions is dealt with by the protections in criminal law procedure. With my noble and learned colleague Lord Lloyd of Berwick sitting on my right, I am bound to say that, by definition, all judges are fair and reasonable. If there is no case to answer and no evidence, any reputable judge—all High Court judges are of course reputable—will immediately dismiss the case for no evidence. The protection is already built in against frivolous prosecution. Removing this restriction would very much benefit this and future Governments, because when the DPP turns down a case and will not give consent the answer can be, “If someone wants to pursue it, it is open to you to bring a private prosecution”. I would ask the Government to think again on this for their own benefit.
Clause 16 [No individual liability]:
[Amendments Nos. 90 to 92 not moved.]
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Lord Lloyd of Berwick moved Amendment No. 93:
Proceedings for an offence of corporate manslaughter may not be instituted against an organisation if an action for damages for negligence would be time barred under the provisions of the Limitation Act 1980 (c. 58).”
The noble and learned Lord said: This is the amendment which I foreshadowed during my brief speech at Second Reading in the hope that the Government might give it favourable consideration in the mean time. It is right that it should come at the end of these Committee proceedings, because it is rather different from the other amendments which noble Lords have been considering. It is of course unusual—I accept that at once—for a serious crime to be subject to a limitation period. There is no period of limitation for murder or for rape, and as the phrase goes, time does not run against the Crown, and as the noble Lord, Lord Hunt, having displayed his knowledge of Latin earlier in the proceedings will no doubt recall, nullum tempus occurrit regi. This is therefore unusual, but the crime that we are considering is of a most unusual kind. Corporate manslaughter does not depend, as we are all learning, on criminal intent in the ordinary sense, but on negligence; and negligence is a civil and not a criminal concept. It only becomes criminal when the negligence is gross or in Scotland, as we have also learnt, when the conduct is reckless, which is a similar but not identical test.
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Proof of negligence in civil proceedings depends on proof of fact—evidence as to fact, evidence as to events and, above all else, evidence as to conduct. It has been found that in civil proceedings, it is simply not fair on the defendant to require him to investigate events which have occurred many years ago. It has been the good sense of the law for many years now to insist on a limitation period for bringing proceedings in negligence for damages. That is true however serious the injury which the plaintiff has suffered and however great the loss. The limitation period in England for negligence is six years, while in Scotland it is three years, but in each case it is liable to be extended in certain events in favour of the plaintiff if he can prove that he would be unfairly prejudiced as a result.
We have this limitation period in civil cases, and the justification I say again is simply that it is not in the public interest that the defendant should be required to investigate events when the evidence has all gone cold and when many of the relevant witnesses may already have died. If that is true of civil actions for negligence, how much more is it true of a criminal prosecution for corporate manslaughter? It would simply be an anomaly that civil proceedings should be barred by the ordinary limitation period, and yet it would be open to the Crown to bring a prosecution when it would not be open to the plaintiff himself to bring civil proceedings. I can see no ground for making a distinction between the two. Surely, to investigate these cases, in the case of corporate manslaughter some 10 or 20 years after the event, would be bound to result in many cases in miscarriages of justice, which is just the kind of thing that we ought to be trying to avoid. Any limitation period is necessarily arbitrary, but the obvious move in this case would be to make the limitation period the same as that for civil actions for negligence. I beg to move.
Lord Hunt of Wirral: I find the arguments of the noble and learned Lord very persuasive indeed, and I support the amendment.
Lord Wedderburn of Charlton: Perhaps I may make a brief point. The amendment is couched in terms of the limitation period provided for in the provisions of the Limitation Act 1980. The noble and learned Lord did not spend much time on those occasions when the limitation periods are extended. My memory may be wrong, and I have not had a chance to check the precise language, but I believe that where there are central facts that could not be known within the limitation period, under certain circumstances the court can have that period extended.
The amendment as it stands would not, perhaps, give to the layman, at any rate, a clear idea that there would be many cases where the period should and would be extended. For instance, consider the asbestos cases, or the asbestos situation, to put it very generally. In the many claims made—by those who I still call plaintiffs but who are now called claimants—the illness, the death and/or the cause of death cannot possibly be known to the claimant within the short
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It should be made clear that the short periods of limitation would, in many cases, have to be considered carefully. They would give rise to an enormous amount of complex argument, which might give rise to the feeling that it might not be preferable to leave in the Bill the general rule that crime is not subject to limitation—in murder and rape, as the noble and learned Lord said.
Lord Lloyd of Berwick: I am very much obliged to the noble Lord for drawing attention to this fact. In many civil cases, the limitation period will be extended. That is the reason why I gave the illustrations of when it would be, but that is the very reason why I am not tying the limitation period to a specific period of six years, I am tying it to what would be the limitation period in civil cases. That may, as the noble Lord has pointed out, be extended for various reasons where, for one reason or another, the negligence has not, or could not be, discovered, and it may be much longer than the six years. But that there should be a limitation period seems to me to be in the highest public interest.
Perhaps I may mention one other thing, which I should have mentioned. The whole idea of limitation is not—in case it might otherwise be thought—an idea of the judges; it was something on which Parliament has insisted for, I would think, many hundreds of years. The noble Lord is a better legal historian than I, but I would think that the first limitation provision was certainly laid in the seventeenth century. So this is not a new idea of the judges; it is something that Parliament has always insisted on.
Lord Bassam of Brighton: I am grateful to the noble and learned Lord, Lord Lloyd, for moving the amendments in the very fair terms that he did. He gave notice at Second Reading of his intention to table the amendment along these lines. Although we have given it some thought, it is not something that we feel persuaded or attracted towards, for reasons that I shall set out.
Picking up on the point about the history of limitations, my understanding is that the civil law of negligence has recognised the need for a limitation period since 1623—so the noble and learned Lord was right on that point—when apparently the first Limitation Act was passed through Parliament.
English criminal law generally proceeds on the basis that there is no restriction on the time that may elapse between the commission of an offence and its prosecution. There are important exceptions to that principle. For example, information charging a summary offence to be tried in a magistrates’ court must be laid within six months of the commission of the offence. Clearly, that does not relate to serious offences such as manslaughter. Clause 1(6) makes the new offence indictable only. The code for Crown
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Generally, a limitation period in the law of negligence operates to provide some certainty that individuals and companies will not be open to claims for damages for loss many years after the loss was sustained. That puts the general interest in allowing people to reorder their lives and be aware of the extent of their liabilities ahead of the need to provide compensation. However, the interests are weighted differently when the question is one of holding a person to account for the commission of a serious offence.
That is not to say that the law is entirely at large here. For example, if there has been a lengthy period between a person’s injury and their death—perhaps in one of the cases alluded to by the noble Lord, Lord Wedderburn—the consent of the Attorney-General may be needed. Although the year-and-a-day rule was abolished some years ago, it was replaced with a requirement that the Attorney's consent be sought where more than three years passed between injury and death. That rule would apply to the new offence.
Equally, where very substantial delays have occurred, it might amount to an abuse of process for a prosecution to be brought. The noble and learned Lord, Lord Lloyd, made that point. In the 1985 case of Bell v DPP of Jamaica, the Privy Council accepted that courts have an inherent jurisdiction to prevent a trial which would be oppressive because of unreasonable delay. It laid down a number of factors to consider, including: the length of delay, the prosecution's reasons to justify the delay, the accused's efforts to assert his rights, and the prejudice caused to the accused.
The test, though, is very high: the defendant will need to show that as a result of the delay he will suffer prejudice to the extent that no fair trial can be held. However, that echoes the requirement in Article 6(1) of the European Convention on Human Rights for a charge to be heard within a reasonable period.
I hope therefore that, with those caveats and explanations, I have persuaded the noble and learned Lord that, although I cannot offer him direct comfort that I will accept his amendment, there are means at the courts' disposal to ensure that criminal charges are brought before them promptly. I do not believe that the balance of interests between allowing defendants to move on from a death or injury caused negligently and enabling justice to be secured is the same in the law of negligence as it is in the criminal law, and for that reason we are reluctant to transpose the civil limitation period into the criminal law. I hope that, having heard that, the noble and learned Lord will feel able to withdraw his amendment.
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Lord Lloyd of Berwick: I am disappointed by the Minister’s reply, but I shall consider carefully what he said. I shall almost certainly want to bring this matter back before the House. The Minister made the valid point that there is no limitation period for individual charges of manslaughter. That is for the obvious reason that in individual cases of manslaughter by gross negligence, death almost always results very quickly thereafter. That would not apply in the case of corporate manslaughter, where one might be investigating systems of work which were operating 10 or 20 years ago. That is the crucial distinction, to which I shall return. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Extent and territorial application]:
Lord Hunt of Wirral moved Amendment No. 95:
“( ) in any place outside of the United Kingdom, where an inquest or fatal accident inquiry held in England, Wales, Scotland or Northern Ireland has brought a verdict of “unlawful killing” and the death was caused by circumstances identifiable under section 1(1) of this Act.”The noble Lord said: This amendment would extend the jurisdiction of the offence to circumstances where an inquest in this country had resulted in a verdict of unlawful killing but the event itself happened abroad. Following such a verdict, it would be possible to bring an action against a body under the Bill. Perhaps I may just set out how the jurisdiction currently works under the Bill.
Currently, any company based in any country can be prosecuted under the Bill so long as the harm that caused the death took place in the United Kingdom. If the management failure took place outside the UK but the harm took place inside the UK, the company could be prosecuted. However, the offence will not apply either if the management failure took place within the United Kingdom but the harm took place outside the UK or if the management failure took place outside the UK, even if carried out by a British-based company, and the harm took place outside the UK.
3.15 pm
I have in mind the recent case at the Louis Corcyra Beach Hotel, where two children tragically died of carbon monoxide poisoning while on a Thomson’s holiday package in Corfu last October. I understand that that case is still under investigation by the Greek authorities, but were it to be proved that there had been unlawful killing, there would be no opportunity under the Bill to bring a charge of corporate manslaughter against the holiday company, even if the deaths were the result of gross management failure in this country.
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What is more, the Bill’s current application is inconsistent with the application to individuals. As the Minister in another place pointed out:
- “committed by British subjects”.—[Official Report, Commons Standing Committee B, 31/10/06; col. 218.]
When an individual has committed a crime abroad, he may be indicted in this country. There seems no reason why the corporate manslaughter offence—a sister offence to individual manslaughter, in many respects—should not apply where a British company acts with such negligence that preventable death occurs.
The Minister went so far as to say in the other place that he had a good deal of sympathy with the aims of amendments that would extend the jurisdiction, although so far I have seen no evidence in Committee that the Government have produced anything since then, despite having acknowledged that there could be some improvement in this regard. He cited the difficulty of extended jurisdiction as a reason for restricting the offence, referring also to the difficulty of gathering evidence. Yet British companies can be prosecuted for corruption offences abroad under Section 109 of the Anti-terrorism, Crime and Security Act 2001. There are other instances, too.
The Home Affairs and Work and Pensions Select Committee noted, at paragraph 254 of its report, that the Attorney-General recently spoke proudly of having secured the conviction, under international war crimes law, of a non-British citizen for torture committed in Afghanistan. Clearly, therefore, it is not impossible to gather evidence. Both that report and the Centre for Corporate Accountability have offered a solution to this problem. My amendment might not cover it entirely, but it is worth considering whether the offence could be extended so that, in the case of deaths occurring in the European Union where the management failure occurred in England or Wales, the body responsible for the management failure could be liable for prosecution.
My noble friend Lord James of Blackheath has suggested that I might consider a slight amendment to the penultimate line of Amendment No. 95, which says,
so that it read, “and the death may have been caused by circumstances”. I have a lot of time for that suggestion. Whatever we decide, we must try to get this right so that we can prosecute the right organisations in circumstances in which their conduct justifies it. I beg to move.
Lord Lee of Trafford: I support the noble Lord, Lord Hunt, and Amendment No. 95.
Amendments Nos. 96 and 97 would extend the territorial jurisdiction to include any place of detention operated by the United Kingdom Armed Forces, and more generally. We believe that they make sense.
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Lord Wedderburn of Charlton: Oddly enough, this is probably an area best left to the judges, partly because the circumstances, in a world of globally expanding multinational and transnational corporations and organisations, are bound to give rise to many cases where the alleged gross negligence could be attributed to senior managers abroad or in the United Kingdom. I am horrified to mention the BP case again, but it illustrates the possibilities. At this stage of globalisation, we would probably not get it right if we tried to deal with jurisdiction in this Bill—except in the case of noble Lords whose imaginations were much wider than mine. There are already provisions on jurisdiction, which the courts apply, and they may or may not be sufficient; but we would have to think about jurisdiction in that much wider context. If noble Lords disagree, then by all means let us come back to it on Report and get something that is exactly right.
Lord James of Blackheath: I wholly agree with the noble Lord, Lord Wedderburn, that this would be best left to the judges. The question is how we get it in front of the judges in the first place, unless we have a mechanism to make that process occur. I have from the outset of this debate been extremely concerned about what I see as the relative narrowness of the jurisdiction on this. I have always felt that the jurisdiction should really include the boardroom that sent the man out to stand in front of the bullet rather than the man who pulled the gun that fired the bullet in whichever country he was sent to. That is the fundamental flaw in our process here. This amendment, to some extent, overcomes that, because if the man who pulls the trigger to shoot the man gets convicted, you have effectively the means by which to progress to bring a charge in front of a British court. That, to some significant extent, answers my anxiety about jurisdiction.
From my original case studies, Case K is a perfect example. Case K was not a personal decision of mine; it involved a company that I took over that was in deep trouble. The former chairman, whom I replaced, had acquired the 30 per cent holding of a gold mine in Tanzania, to which he sent two people to work on its development. He sent them £60,000 a week to pay the local native workforce to help dig the goldmine. When I took over, they had already run up a bill of £28 million, and they had found absolutely zero gold. I cut off the funding of £60,000 a week immediately, whereupon the native workers lynched the two consultants whom we had sent out, and they sent us a beautiful photograph of them both hanging from the balcony porch. In those circumstances, the local native workers were prosecuted for murder in Tanzania, and that would have triggered the point that my noble friend Lord Hunt is seeking to establish. Without that, we could never have got that sort of case in front of a British judge, where the very reasonable point of the noble Lord, Lord Wedderburn, to leave it to a judge to decide, can then take effect. This is a wholly worthy amendment that should be pursued.
As I am on my feet for probably the last time in this Committee, noble Lords will be pleased to hear, I
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I am by no means content that the wording of the Bill, and certainly the Explanatory Notes, give adequate guidance on how and where proceedings would apply in a multi-functional group where the manslaughter had been committed at a subsidiary level. Here I take the excellent point made earlier by the noble Lord, Lord Wedderburn. He has looked to see whether a line has been drawn to limit how far down a delegation can go, but if a parent company is delegated to a subsidiary, then the subsidiary would have a separate delegation within it as well. Delegations have delegations have delegations. Given that, I ask the Minister to give some thought to producing guidance notes to simplify this so that corporations who are going to have to live with this can understand exactly how a multi-functional company would deal with these different levels of responsibility.
Lord Bassam of Brighton: I thought that that last peroration by the noble Lord, Lord James, was very grand, and I am sure that it was well intentioned.
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