Corporate Manslaughter Bill

Report: 11
Date: 25 January 2007
By: Chief Executive and Clerk

Summary

This report summarises the provisions of the Corporate Manslaughter Bill. It describes the way the new offence of corporate manslaughter will apply to policing activity (see paragraph 10). It sets out the views expressed by the Corporate Governance Committee (see paragraph 13) and invites the Authority to consider the issues.

A. Recommendation

That The Authority considers the proposed legislation and determines whether further comments should be submitted to the APA or Home Office on behalf of the Authority.

B. Supporting information

1. It is currently possible for a corporate body, such as a company, to be prosecuted for a wide range of criminal offences, including manslaughter. To be guilty of the common law offence of gross negligence manslaughter, there must have been a gross breach of a duty of care owed to the victim. The prosecution of a company for manslaughter by gross negligence is often referred to as ‘corporate manslaughter’.

2. As the law now stands, before a company can be convicted of manslaughter, a ‘directing mind’ of the organisation (that is, a senior individual who can be said to embody the company in his actions and decisions) must also be guilty of the offence. Crown bodies (those organisations that are legally a part of the Crown, such as Government departments) cannot currently be prosecuted for criminal offences under the doctrine of Crown immunity. In addition, many Crown bodies, such as Government departments, do not have a separate legal identity for the purposes of a prosecution.

3. In 1996 the Law Commission's report ‘Legislating the Criminal Code: Involuntary Manslaughter’ (Law Com 237) included proposals for a new offence of corporate killing that would act as a stand-alone provision for prosecuting companies to complement offences primarily aimed at individuals. The Law Commission's report, including its proposals on corporate killing, provided the basis for the Government's subsequent consultation paper in 2000 ‘Reforming the Law on Involuntary Manslaughter: the Government's Proposals’.

4. A draft Corporate Manslaughter Bill was first published in March 2005. The current Corporate Manslaughter Bill, now in the House of Lords, defines the new offence of corporate manslaughter (which will be called corporate homicide in Scotland).

5. The new offence builds on key aspects of the current common law offence of gross negligence manslaughter described above. However, rather than being contingent on the guilt of one or more individuals, liability for the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are run.

6. In summary, the new offence will be committed where, in particular circumstances, an organisation owes a duty to take reasonable care for a person's safety and the way in which activities of the organisation have been managed or organised amounts to a gross breach of that duty and causes the person's death. How the activities were managed or organised by senior management must be a substantial element of the gross breach.

7. The elements of the new offence will be:

1. The organisation must owe a duty of care to the victim that is connected with certain things done by the organisation.
2. The organisation must be in breach of that duty of care as a result of the way in which the activities of the organisation were managed or organised. This test is not linked to a particular level of management but considers how an activity was managed within the organisation as a whole. An organisation cannot be convicted of the offence unless a substantial element of the breach lies in the way the senior management of the organisation managed or organised its activities.
3. The way in which the organisation's activities were managed or organised must have caused the victim's death. The usual principles of causation in the criminal law will apply to determine this question. This means that the management failure need not have been the sole cause of death; it need only be a cause.
4. The management failure must amount to a gross breach of the duty of care. ‘gross breach’ means that the conduct that constitutes the failure must ‘fall far below what could reasonably have been expected of the organisation in the circumstances’. There is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs.
5. ‘Senior management’ means those persons who play a significant role in the management of the whole or a substantial part of the organisation's activities.

8. Where it is established that an organisation owed a relevant duty of care, it will be for the jury decide whether there was a gross breach. The jury must consider whether there was there failure to comply with any health and safety legislation that relates to the alleged breach, and if so how serious that failure was, and how much of a risk of death it posed? The jury may also consider attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure or to have produced tolerance of it; and also relevant health and safety guidance. In other words, the health and safety culture of the organization will be highly material.

9. The new offence applies to Companies, Local Authorities, Police Authorities, Police Forces, the Military, Emergency Services, and to Government Departments. It does not apply to individuals.

10. The Bill includes specific provisions to limit the circumstances in which the offence can arise in relation to policing activities.

1. The Bill confers a total exemption from the offence for operations dealing with terrorism, civil unrest or serious disorder in which an authority's officers or employees come under attack or the threat of attack; or where the authority in question is preparing for or supporting such operations; or where it is carrying on training with respect to such operations.
2. There will be a partial exemption for a wider range of ‘policing and law enforcement activities’. This exemption will not cover the duty of care owed as an employer towards police officers or police staff, or duties owed as the occupier of premises.
3. This partial exemption will apply to circumstances where the pursuit of law enforcement activities has resulted in a fatality to a member of the public. It will cover decisions about and responses to emergency calls, the manner in which particular police operations are conducted, the way in which law enforcement and other coercive powers are exercised, measures taken to protect witnesses, and the arrest and detention of suspects.

11. The Bill provides a range of other exemptions, such as:

1. for decisions as to matters of public policy including the allocation of public resources and the weighing of competing public interests
2. for emergency services when responding to actual or perceived emergencies
3. for child protection and probation services
4. those carrying out statutory inspections
5. and for exclusively ‘public functions’ undertaken by or on behalf of the Crown

12. It is expected that the Bill will receive Royal Assent in July 2007 and will come into operation in 2007 or 2008.

13. The Bill was considered by the Corporate Governance Committee at its meeting in December 2006. The following views were communicated to the APA. The Committee also requested that the full Authority should consider the issues.

1. The Committee considered that the exemptions for policing activity as they stand in the Bill in the Lords are too wide and likely to have an adverse effect on policing and on public confidence.
2. The Committee expressed some sympathy with the arguments put forward by Liberty and other bodies, that there is no reason in principle why police forces should be exempted from the charge of corporate manslaughter and that it should be a matter for a jury to consider all the factors. They noted that as long as the law of negligence provides the basis of the duty of care for the purposes of corporate manslaughter, then the duty of care does not arise in many policing situations in any event because the courts have held that there is no duty of care on the part of police in relation to investigations.
3. The Committee considered that deaths in custody (whether in police or prison custody) ought to be within scope of the new offence.
4. The Committee noted that the MPA was on record with the view that the prosecution of the Office of Commissioner under Section 3 of the Health and Safety at Work Act in relation to the death of Jean Charles De Menezes represents an unsatisfactory use of the Health and Safety at Work Act with the potential to bring that legislation into disrepute. Committee Members were concerned that if the current exemptions in the Corporate Manslaughter Bill are enacted, there may well be more Health and Safety at Work prosecutions of police forces because no other prosecution route is available.

14. At the time of writing this report, the Bill will shortly be debated in House of Lords Committee. Amendments have already been tabled which would have the effect of removing or drastically reducing the scope of the exemptions for policing activity. An oral update will be presented to the Authority meeting, following completion of the Committee stage in the Lords.

C. Race and equality impact

There is no direct race or equality impact. However, there is no doubt that the deaths in custody or following police contact frequently become touchstones of community confidence. The exclusion of deaths in custody from the scope of the new offence, together with the exemptions for policing activity within the Bill, could exacerbate concerns within minority communities in particular about the investigation and treatment of deaths in custody.

D. Financial implications

The Government consider that there will be minimal impact on public expenditure. However, the Corporate Manslaughter Bill may well result in an increase in the number of cases of deaths referred to police for investigation (even if there is no dramatic increase in prosecutions) with consequential additional investigation costs to be funded within existing resources. At this stage it is not possible to quantify this. If the present proposed exemptions for policing activity are removed or reduced, then the potential for a prosecution will arise, and with that the potential for substantial costs and or a penalty to be met out of the MPA budget.

E. Background papers

• Corporate Manslaughter Bill
• Home Office Explanatory Notes (all available on Houses of Parliament Web site)

F. Contact details

Report author: David Riddle, MPA.

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Send an e-mail linking to this page

Feedback