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These amendments deal with extra-territorial jurisdiction. I understand entirely the desire to make the legislation as extensive as possible and that in itself is a laudable objective. But we must balance that against ensuring that the offence is practical and enforceable as well as in line with the principles of territoriality.
Criminal jurisdiction usually applies on a territorial basis. This reflects the practical reality that that is where a country’s police forces operate and are effective. Once you go beyond a country’s borders, the police do not have jurisdiction and difficulties arise. As my noble and learned friend Lord Davidson explained during our Second Reading debate, in other jurisdictions UK police forces will not be in control of the investigation they have to carry out and will have no formal powers to gather evidence.
If a person is killed in a company’s plant overseas, the police would need to gather evidence and be able to present to a court over here, through witnesses and statements, evidence of how that person died, how the company’s plant was being managed and how that
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The Bill is based on the current statutory jurisdiction for manslaughter, which is distinct to the position of individuals where extra-territorial jurisdiction applies. The Law Commission recommended in 1996 that the position for corporate manslaughter remain on a territorial basis, and we have followed that. As it stands, the Bill would still extend in important respects to cases that occur not on the UK mainland but where the UK criminal law already applies and which the public would expect to see covered. It would apply, for instance, to deaths within territorial sea limits such as the Lyme Bay tragedy, which gave rise to the first ever successful corporate manslaughter prosecution, and it would apply to the circumstances of the “Herald of Free Enterprise”, which was a British ship.
A number of suggestions have been made during consultation, scrutiny and debate in the other place for extending the territorial jurisdiction of the offence: to British companies operating abroad, by analogy to homicide laws for individuals; to deaths in the EU but not more widely; and to the deaths of UK employees or employees normally based in the UK but posted abroad. Under the amendment tabled by the noble Lord, Lord Hunt, the offence would apply where an inquest or fatal accident inquiry returns a verdict of unlawful killing and that death was caused by circumstances identifiable under Clause 1. I fully appreciate the effort that has been applied to try to find a workable solution, but I am not sure that that has been achieved.
There would not be a question of jurisdiction until an inquest or inquiry had brought in a verdict of unlawful killing, but that of course may be some way down the line from the death. This would involve the police here seeking to pick up a manslaughter investigation after a potentially lengthy period of time. It would also leave great uncertainty at much earlier stages. Should the police be getting involved in seeking evidence because such a verdict might be brought in?
3.30 pm
The second limb of the amendment requires that the death must have been,
We are not entirely sure what that test would involve, but it would seem to confer jurisdiction where a death was caused as a result of gross management failure by an organisation. This would appear to link jurisdiction to the question of whether the offence had been committed. That would mean that a court had jurisdiction only if it could be established that the offence took place. But that will be established only as a result of a prosecution, leaving the courts in a rather invidious position: if it is satisfied that a death has been caused by a company’s management failure, then the offence can be tried in the UK. But if that is not
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The test might be wider than this, but there remains a further concern that no other connection with the United Kingdom is required other than that the body was repatriated here and a verdict of “unlawful killing” returned. It would therefore extend to cases where a UK national is killed abroad, by a foreign company operating entirely abroad, provided that gross management failure by that company had caused the death. That would appear to be a very wide jurisdiction and not one that we think could in practice be effectively policed.
Amendment No. 97, in the names of the noble Lords, Lord Razzall and Lord Lee, appears to address this concern by conferring jurisdiction only where a substantial part of the grossly negligent management failure took place in the UK. However, this still contemplates that a substantial part of the failure might have occurred overseas. That not only involves the practical problems I outlined earlier for the police in seeking to investigate the offence, but also risks the prospect of lengthy investigations seeking to establish whether, taking the picture of gross negligence as a whole, it could be said that a substantial part of it occurred in the United Kingdom and therefore the offence falls within the United Kingdom’s jurisdiction. For cases such as this which involve death and allegations of corporate failure, we think that a clear test is needed so that investigators and families are clear from the outset whether there is a prospect of the Bill applying.
Amendment No. 96, also in the names of the noble Lords, Lord Razzall and Lord Lee, seeks to extend jurisdiction, but only in respect of persons detained by our Armed Forces abroad. We have concern whether such a provision could be implemented in practice. It may be necessary to detain people during continuing military operations in self-defence or defence of others, or in some cases, for imperative reasons of security. Even if held for a temporary period, or in a temporary facility, this amendment could be taken to apply. The tactical situation on the ground will, however, affect the precautions which the capturing troops can realistically take to ensure the safety or well-being of the captured person.
In an international armed conflict, there are clear legal rules to govern the conduct of service personnel in the Geneva Conventions of 1949 and associated additional protocols and in other provisions of the law of armed conflict. If UK Armed Forces personnel breach those rules, they are liable to disciplinary action and punishment in accordance with the service discipline Acts and they are subject to UK criminal law.
I hope that I have outlined some of the complexities here. The new offence represents a significant change in the law for the better for holding corporations and public bodies to account for gross management failure. We think that the right approach is to apply the new offence to deaths within territorial
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Lord Hunt of Wirral: I am very grateful to the noble Lord for paying tribute to us for giving this matter some thought. He has all the negative arguments out of the way. Could he now share with us the positive work that has been going on within the department to find a solution to this problem, given that the Minister in the other place said that he had sympathy with the efforts to extend jurisdiction? What has been going on in the department? When will the Government come forward with amendments in line with the sympathy and support expressed by the Minister in the other place?
Lord Bassam of Brighton: I am sure that the noble Lord knows that we often express sympathy for amendments, and sometimes support, but that does not necessarily lead us in the direction of commissioning additional work to give greater effect to that sympathy and expression of support. I take the noble Lord’s point that one should always try to be positive about these things. I hope that my initial point was positive. We seek to put in place legislation that is workable and has as wide an application as is practicable. However, we have come up against a very practical consideration. I am sure that the noble Lord well understands the difficulties of trying to act outside a jurisdiction. It is very complicated and difficult. I made the simple point about evidence gathering being very difficult in an extra-territorial jurisdiction. There are some limited circumstances in which extra-territorial jurisdiction operates. They are limited for the very good reason that it is very difficult indeed.
It is right and proper to give sympathy, support and understanding and to give matters fair consideration, but there has to be a limit to where we can take this. Given the difficulties inherent in the legislation per se, we think that we have struck a reasonable balance in limiting the jurisdiction as we have.
Lord Hunt of Wirral: That was a fascinating response. I think that the Minister is saying that nothing has happened in the department to explore the support that the Minister in the other place gave when he said not only that he had sympathy but that he had a good deal of sympathy with the aims of amendments that would extend jurisdiction. I hope that between now and Report the noble Lord will have a word with Mr Gerry Sutcliffe to see whether there is a way of meeting the points that were raised by the noble Lord, Lord Lee, and myself. These points anticipate the furores that arise from time to time when criminal acts have clearly taken place and one has to explain these matters. As former constituency MPs, both the noble Lord, Lord Lee, and I often had to explain to the bereaved why nothing could be done. I do not want to see those
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Lord Bassam of Brighton: I understand where the noble Lord is coming from. During my political life I had to deal with a case that was extremely similar to the one mentioned by the noble Lord of the tragic death of two young children in Greece. At the time I felt considerable frustration that more could not be done to make sure that the jurisdiction within which that terrible incident took place was not made more effective. The Conservative Government were in place at the time. With good reason they took the view that there was very little that they could do in the circumstances. Therefore, I understand and share the noble Lord’s frustration. I certainly commit to having a word on the issue with my good friend Mr Sutcliffe to see just how far his sympathy and support went and what work he has commissioned as a consequence. We should conduct these sessions in good humour and with good intent.
Lord Wedderburn of Charlton: Before the Minister finally sits down, it should be said that a good deal of sympathy is a two-way street. We all have a good deal of sympathy with the noble Lord and the way in which he has conducted this Bill through Grand Committee.
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Lord Hunt of Wirral: I am very grateful to the noble Lord, Lord Wedderburn, for anticipating my words. I can read between the lines. I am now very happy to accept what the Minister has said. I understand that there is no commitment. I just wanted to ensure that there was exploration to see whether there was a way through. As the noble Lord, Lord Wedderburn, said—I know that I speak for the whole Committee when I say this—we are very grateful to the noble Lord, Lord Bassam, for the way in which he stepped into this role of answering all the points without, given the circumstances, perhaps having had the extensive preparation for the Committee stage that he would have preferred. He has on a number of occasions given us commitments which we are very happy to accept. As we have mentioned, there is limited time before 5 February. I hope that a lot of these problems can be sorted out in good time before then. In the mean time, with grateful thanks to the Minister and his officials, I seek the leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 96 and 97 not moved.]
Bill reported with amendments.
- The Committee adjourned at 3.42 pm.
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