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The sanction of admonition is already available pursuant to Section 246 of the Criminal Procedure (Scotland) Act 1995, where a court may dismiss with
5 Feb 2007 : Column 582
But I understand that the Scottish Executive is currently considering a report from the Sentencing Commission for Scotland on financial penalties. As part of that work the Executive is considering the issue of compensation orders. Any changes to that legislation would, of course, properly be a matter for the Scottish Administration.
In summary, I am grateful to the noble Earl for raising the question of how the offence will apply to Scotland. I hope that I have been able to satisfy him that it is both appropriate and desirable for the new Bill to apply across the United Kingdom in the same terms and I urge him to withdraw his amendment.
The Earl of Mar and Kellie: My Lords, I am grateful to the noble and learned Lord for that explanation. I am not convinced that I necessarily understood it all but I suspect that I shall when I read it tomorrow. In those circumstances, I beg leave to withdraw the amendment.
The noble Lord said: My Lords, this is a short but important amendment to emphasise the need for this Bill to be properly publicised. This is self-evidently needed, but it is important that the implications of this legislation are made abundantly clear in order to encourage people affected to be aware that they need to anticipate potential risksin fact, to concentrate minds.
Now more than ever it is incumbent on organisations to ensure that they conduct their affairs with others in mind. I include in this the fact that, over time, various investigations are carried out following disasters or tragedies but frequently recommendations are not followed. This legislation puts organisations on notice that they will be found wanting if they do not take account of such recommendations.
At various stages of the Bill, suggestions were put forward as to how many disasters or events would, or would not, have been avoided if this legislation had been in place. This Bill can play a key role in changing the culture in many spheres of activity, where failures of management and failures of training and awareness have been shown to be the cause of many tragic events. That is why the message must go out loud and clear. It has, I regret to say, not always been the case that legislation has been explained clearly
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Lord Bassam of Brighton: My Lords, as the noble Lord, Lord Cotter, has set out very clearly, this amendment proposes that there should be a specific duty on the Secretary of State to communicate details of this legislation to the public and to the organisations that will be affected by the new offence. We agree that it is very important that everyone should be aware that this new offence is coming, and the publicity that has surrounded the Bill so far has helpfully prepared the ground for that. It is also vital, as the noble Lord said, that organisations should be given time and guidance to enable them to understand how this offence will work and to help them to make sure that their housestheir businesses and enterprisesare in good order.
To that end, I can give the noble Lord the assurance that I think he is seeking. The Government will be working closely with a whole range of organisations and agenciesincluding business associations, trade unions, and bodies within governmentto ensure that those affected by the new offence will be informed and prepared. The one key message that we want all organisations to understand is that the new offence is firmly linked to the existing framework of health and safety legislationthat is where it should restwhich binds all organisations subject to the offence. They have nothing to fear from this legislation if they are taking their existing responsibilities seriously. By very clearly building on health and safety legislation, we have made sure that those organisations which already comply with their statutory responsibilities will not fall foul of the new legislation.
Another important message here is that the time is up for those organisations which pay scant regard to those responsibilities. The Government are strongly committed to safety in the workplace and to having effective laws in place to prosecute organisations whose neglect of health and safety leads to injury and occasionally to death. The Bill creates a more effective basis for prosecuting organisations for manslaughter. It will no longer be the case that organisations can escape liability for this most serious offence through corporate liability hinging on the identification principle. I entirely appreciate the points that the noble Lord makes in respect of the importance of communicating accurately and clearly what the impact of this new offence will be. But I disagree with the suggestion of imposing a duty on the Secretary of State to communicate this to the public; that would be unprecedented and ultimately unnecessary.
We will take every care to ensure that this new offence is implemented carefully and responsibly and that the organisations affected by the offence and the wider public will have access to information about its effects. We also hope that the very fact of this new offence will make it clear to everyone that health and safety must be given the priority that it deserves within the organisations that it impacts upon and that, in future, those organisations will be held criminally responsible when their gross negligence results in death.
I hope that that gives the noble Lord the assurance that he seeks. We will be taking seriously the question of information about the new offence. I believe it is fair to argue that, given the publicity that has surrounded the Bill, the Bills long gestation, the careful consultation, the commitment that we have had from many organisations that they will support the Bill and the fact that it has a good measure of cross-party consensus, people will well and truly know about this legislation and about its import and impact.
Lord Cotter: My Lords, I thank the Minister for his reply and for his assurance that great attention will be given to publicity. I also thank him for the robustness with which he addressed a number of points. An important factor regarding the publicity is that people are aware of it and that they adjust their behaviour accordingly. On that basis, I beg leave to withdraw the amendment.
We say that it should be possible for a private individual to institute proceedings regardless of the approval of the Director of Public Prosecutions, which, in fact, is normally the case. It is very likely that aggrieved people will not simply go away, and the DPP could be in the firing line and could possibly find himself accused of protecting officialdom. We made that point at a previous stage but I should be interested in the Ministers response to what we consider to be an important peripheral issue. I beg to move.
Lord Bassam of Brighton: My Lords, the Government believe that requiring the consent of the Director of Public Prosecutions is an important part of the Bill. A key feature of this offence is that it will mark a particularly serious level of offending by an organisation. It is important that this truly is reserved for the worst cases and that the deterrent effect of possible proceedings is not reduced by very poor cases being brought against organisations.
Furthermore, potential defendants have been concerned that every work-related death will result in a charge of corporate manslaughter and that companies which pay proper attention to the management of health and safety will have their reputations damaged through manslaughter charges, even though the charges are bound to fail. Part of the reassurance that only the worst cases of health and safety failures will proceed to court is that the DPP must be satisfied that in every case the evidence supports a realistic prospect of conviction.
Requiring the DPPs consent does not prevent private prosecutions but it ensures that such prosecutions will be able to proceed only if the two-stage test in the Code for Crown Prosecutors is satisfied; namely, that the state of the evidence is such that there is a realistic prospect of conviction and that a prosecution will be in the public interest.
As we have said before, where the allegation is manslaughter, we think that only rarely will the public interest test not be met, so the main issue will be sufficiency of evidence. We do not think that allowing prosecutions to proceed where there is insufficient evidence will be in anyones interestneither the organisations, whose reputation will be tarnished unfairly, nor the familys, whose expectations will be raised unrealistically.
By their nature, corporate manslaughter cases are likely to involve complex evidence about company structures and management, as well as about industry standards. We believe that the Crown Prosecution Service is best placed to assess whether there is sufficient evidence of the necessary standard. It is asking a lot to expect the families of victims to make that assessment objectively.
There is an argument that the prohibitive costs of bringing a private prosecution in such complex cases will act as a barrier to prosecutions and that requiring the DPPs consent is unnecessary. It is, of course, true that bringing a private prosecution will be an option only for those who can afford it. In the history of work-related deaths, we are aware of two private prosecutions for manslaughter, neither of which was successful. However, in one case we understand that the person bringing the casea man who owned a businesswas bankrupted by doing so and in the other case the person bringing the proceedings appears to have been a millionaire.
Relying on the very high cost of private proceedings in itself is unsatisfactory. We do not think that ability to pay should become the criterion for whether a prosecution should proceed if there is no evidence to sustain it. The costs underline that private prosecutions are rarely a practical option and the requirement to obtain consent will operate in few cases. If the DPP does not consent to a private prosecution, that decision can be judicially reviewed and, for the vast majority of people, applying for a judicial review is going to be far more of a realistic proposition than pursuing a private prosecution, especially as legal aid is available for judicial review. There is also precedent in corporate manslaughter of a successful judicial review of a decision by the CPS not to bring a manslaughter prosecution. That case
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I turn to conflicts of interests, which the noble Lord raised. Would they exist in cases against the Crown or in cases against the CPS? I start by quoting the honourable Member for Beaconsfield. In Committee in another place, Dominic Grieve put the argument very well. He said:
I do not share the ... view about the DPP being subject to political pressure. Never in my professional experience have I seen a hint of it. The DPP is a civil servant, but once he holds his office he cannot be removed other than for misfeasance or personal misconduct. For those reasons, I do not think that that is a live issue.
I do not always agree with Dominic Grieve but on this occasion I certainly do. He has put the position very well. It is a poor argument that the DPP will succumb to pressure not to prosecute the Crown. It is not the CPS or the DPP who will investigate a case: that will be for the police. It will be the police who gather the necessary evidence and they will then present it to the CPS for a decision about charges. So the role of the CPS and the DPP, whether consent is required or not, will be to consider the evidence, properly presented by the police, and decide whether that presents a picture of gross negligence. That is a decision they will take independently as prosecutors.
The CPS, of course, comes under pressure at present from both sides in cases of manslaughter and many other cases. Defendants lobby in order to have charges dropped and victims and their families understandably press for prosecutions, sometimes with passion. But cases always have to be taken forward on the merits of the case not the pressure for or against prosecution. The Government cannot halt investigations or prosecutions simply because they are embarrassing. Furthermore, the process of judicial review will act as a safeguard, where any allegation of bias can be considered.
For these reasons, I do not think that requiring the DPPs consent will reduce victims rights or lead to cases against the Crown being dropped when they should not be. In view of those arguments, I urge the noble Lord to withdraw his amendment.
Lord Cotter: My Lords, I thank the Minister for a very fair and comprehensive consideration of the issue which obviously concerns us. He was very reasonable in the points that he put. Despite our continuing concerns, I beg leave to withdraw the amendment.
(2) An organisation that has been convicted of corporate manslaughter or corporate homicide arising out of a particular set of circumstances may, if the interests of justice so require, be charged with a health and safety offence arising out of some or all of those circumstances.
The noble Lord said: My Lords, concern has been expressed that the Bill might inadvertently lead to a reduction in the scope for prosecuting individuals on a secondary basis for health and safety offences. The point has been made that, if an organisation were convicted of the new offence, there might be a question of whether health and safety charges against the organisation arising out of the same incident might also be put to the jury. If that were not the case, it might preclude a verdict on any secondary participation by individuals in the health and safety offences.
We would certainly not wish this to be the case and have consequently tabled Amendment No. 48 to clarify that convicting an organisation for corporate manslaughter would not preclude a conviction of the organisation for a health and safety offence if that were in the interests of justice; we touched on this issue in some earlier debates. This would ensure that any secondary liability for the health and safety offence was kept alive. I know that secondary liability is a controversial issue, but we want to ensure that it is there for health and safety offences. It would not impose any new liabilities on individuals, but ensure that existing liabilities are not inadvertently reduced.
Lord Henley: My Lords, the Minister said that concern has been expressed. If he remembers, it was either myself or my noble friend Lord HuntI forgetwho moved a similar amendment in Committee to achieve just this.
Lord Henley: My Lords, I am grateful that we inspired the noble Lord and the Government to do that. I thank him with all my heart for bringing forward an amendment achieving exactly what we tried to do in Committee.
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: My Lords, the purpose of the amendment is to provide for limitation for bringing proceedings for corporate manslaughter. I make it as clear as possible that I am not suggesting that there should be a limitation period for manslaughter by an individual, but there are good practical reasons for distinguishing between the two offences.
It is of course unusual to have a time limit for serious crime, but corporate manslaughter is an unusual crime. It is based not on criminal intent but on the civil concept of negligence. In ordinary civil actions for negligence, there is a time limit of six years because it is simply not fair to ask people to defend themselves 10 or 20 years after the events giving rise to the claim. That is reflected in Article 6(1) of the European Convention on Human Rights, entitling a defendant to a fair hearing within a reasonable time. That applies to crime just as it applies to civil actions.
However, we are not concerned with the ordinary six-year time limit for actions for negligence. A special time limit applying to claims for negligence resulting in either personal injuries or death is contained in Section 11 of the Limitation Act 1980. That is three years, which is obviously less than six years. Yet that it is not from the events giving rise to the claim, but three years from the date of the plaintiff knowing that his injuries are attributable to the defendant, or his death if that should occur earlier. The special time limit applying in such cases is much more flexible than the ordinary time limit. If such a time limit is required in civil proceedings based on negligence in order to ensure fairness to the defendant, it must surely be even more applicable in the case of criminal proceedings based on precisely the same facts. How can it be fair or in the public interest that a company should be criminally liable when it is no longer under any civil liability in respect of exactly the same facts?
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