APPENDIX 2: CORPORATE MANSLAUGHTER AND
CORPORATE HOMICIDE BILL — GOVERNMENT AMENDMENT
Supplementary Memorandum by the Ministry of Justice
1. This memorandum draws the Committee's attention
to a delegated power that is included in an amendment which the
Government has tabled to the Corporate Manslaughter and Corporate
Homicide Bill.
New subsections to be inserted after clause 2(5):
Power to extend the offence of corporate manslaughter or corporate
homicide to deaths in custody
Power conferred on: Secretary of State
Power exercisable by: Order made by statutory
instrument
Parliamentary procedure: Affirmative resolution
2. Clause 1 of the Bill provides that the offence
of corporate manslaughter or corporate homicide is committed if
the way in which an organisation's activities are managed or organised
causes a person's death and amounts to a gross breach of a relevant
duty of care owed to the deceased. Clause 2 defines a "relevant
duty of care" as one of a specified list of duties owed under
the law of negligence. This list includes duties owed as employer
or occupier of premises, or in connection with the supply of goods
or services, the carrying on of construction or maintenance operations,
the carrying on of other activities on a commercial basis or the
use of any plant, vehicle or other thing.
3. An amendment tabled by the Government seeks
to give the Secretary of State a power by order to amend clause
2 so that a duty of care owed by an organisation to a person who
is in custody or detention, or who is otherwise on premises in
circumstances where the organisation is thereby responsible for
his safety, is a "relevant duty of care". The amendment
would also make provision for the power to be exercised to amend
the Bill so as to specify exceptions to the application of any
such extension, and to make any amendment to the Bill that was
incidental or supplemental to, or consequential on, such an exercise
of the power.
4. Parliament has extensively debated whether
the Bill should be extended to cover deaths in custody, and each
House has voted on the issue. In the House of Commons at Report
an amendment to this effect was defeated by 288 votes to 168 (see
Hansard 4th December col 93-112) and in the House of Lords at
Report an amendment was passed by 223 votes to 127 (see Hansard
5th February 2007 col 501-525). The amendment tabled by the Government
responds to the strength of feeling expressed in Parliament on
the issue, while reflecting the Government's view that it would
not, at least for the present, be appropriate for the offence
of corporate manslaughter to apply to deaths in custody.
5. The references in the new subsection (5A)(a)
inserted by the amendment to the power extending to "premises
of a specified description" and to "specified circumstances"
are included so that the power is wide enough to cover all potentially
relevant circumstances. For example, in some cases it is considered
that a duty of care owed in respect of the operation of secure
children's homes would be of a type capable of being a "relevant
duty of care" because it would fall within the category of
the supply of services under clause 2(1)(c)(i). However the offence
might still not apply in these cases because of the exemption
for duties owed in respect of an "exclusively public function"
in clause 3(2). The extension of the enabling power to cover these
circumstances therefore ensures that if necessary such duties
can be specified in the order and the exemption disapplied under
the power in subsection (5B)(a).
6. The power to specify exceptions in subsection
(5B)(a) of the proposed amendment is included because it is likely
that any exercise of the power extending the offence to deaths
in custody would need to be accompanied by amendments to some
of the exemptions contained in clauses 3 to 7. In particular,
it is likely that the exemption for exclusively public functions
in clause 3(2) of the Bill would need to be disapplied in relation
to deaths in custody.
7. The power to make any incidental, supplemental
or consequential amendments is included to enable other provisions
of the Bill to be amended in consequence of an order under subsection
(5A). For example, an order under that subsection might use a
term whose definition could, under subsection (5B)(b), be inserted
into the list in the interpretation clause.
8. An order under the new clause would be subject
to the affirmative resolution procedure. The Government considers
this level of Parliamentary scrutiny is appropriate for an order
that would have the effect of expanding the circumstances in which
a serious criminal offence could be committed.
Ministry of Justice
May 2007
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