GUIDANCE ON THE CORPORATE MANSLAUGHTER CENTRE FOR CORPORATE ACCOUNTABILITY A COMPREHENSIVE BRIEFING FOR THE LAYPERSON AND CORPORATE HOMICIDE ACT 2007

Transcription

1 CENTRE FOR CORPORATE ACCOUNTABILITY GUIDANCE ON THE CORPORATE MANSLAUGHTER AND CORPORATE HOMICIDE ACT 2007 A COMPREHENSIVE BRIEFING FOR THE LAYPERSON AND THE EXPERT April

2 The Centre for Corporate Accountability The CCA is a charity concerned with worker and public safety with a particular focus on the role of state bodies in the enforcement of health and safety law, investigation of work related death and injury, and the prosecution of those responsible. It runs Britain s only national advice service for families bereaved from workrelated deaths on investigation and prosecution issues arising from the deaths (which is independent, free and confidential). It has a Legal Services Commission Quality Advice Mark. The CCA has been involved in the debates around reform of corporate manslaughter since the late 1990 s CCA, 4 th Floor, 197/199 City Road, London EC1V 1JN Tel.: Bereaved Families - Contact the CCA The CCA has been providing advice and assistance to families bereaved from work-related deaths since We are the only national organisation providing this assistance which is free, confidential and independent. If you are a bereaved family member and would like advice on any issues relevant to the investigation and prosecution of work-related deaths, call the CCA on and ask to speak to a caseworker or advice@corporateaccountability.org Also see: TRAINING AND INFORMATION Training The CCA provides training to organisations be they public bodies, employers, trade unions and others on how the legislation works. To find out more, look here: or call the CCA. Information If you have any queries or comments about this guidance, would like to order some more copies, would like to find out more about the CCA: See our website: the CCA: info@coporateaccountability.org PLEASE DO NOT PHOTOCOPY THIS DOCUMENT FOR SOMEONE ELSE S USE Do not put it on your computer network for other people s viewing. The CCA has spent considerable work and effort in putting this guidance together. The CCA is a charity and the income gained from selling documents of this kind assist it in continuing with its activities. If one of your colleagues wants a copy please ask them to buy one! Please reference this document if you excerpt P any material. Significant material cannot be copied without permission from the CCA. Thank-you.sion from the eference this Price Standard Price 35 (electronic copy) 50 (hard copy) Trade union safety reps, students 15 (electronic copy) 25 (hard copy) Bereaved Families - free For other prices, contact the CCA 2

3 SUMMARY CONTENTS PAGE PART ONE: EMERGENCE OF THE NEW LAW 7 Chapter 1: Background 8 Chapter 2: Summary of the Act: Conditions for a prosecution 14 Chapter 3 Assessment of the Act 17 PART TWO: ELEMENTS OF THE OFFENCE 20 Chapter 4: Has the harm, resulting in the death, taken 22 place in the UK? Chapter 5: Does the evidence relate to events on or after 25 6 April 2008? Chapter 6: What types of organisations can commit the offence? 27 Chapter 7: Duty of Care within the Act 33 Chapter 8: Is there a duty of care between the organisation and the deceased? 34 Chapter 9: Does the duty of care fit within one of the categories 38 set out in section 2 of the Act? Chapter 10: Exemptions to these categories of relevant 42 duty of care Chapter 11: Was there a failure in the way in which the 56 organisation was managed or organised? Chapter 12: Was a substantial element of the failure at 57 senior management level? Chapter 13: Was there a gross breach? 61 Chapter 14: Was the failure a cause of the death? 63 PART THREE: INVESTIGATION, PROSECUTION AND SENTENCING 64 Chapter 15: Investigation 65 Chapter 16: Prosecution 68 Chapter 17: Sentencing 70 Annexes Schedule 1 to the Act: List of Government departments etc. 2. Special provisions allowing for the prosecution of unincorporated defendants 3. Companies convicted of Manslaughter (as of 6 April 2008) 4. CCA s Response to the Sentencing Advisory Panel An archive of all key documents relating to the reform process from the 1996 Law Commission proposals to the House of Lords debates in 2007, can be accessed here: 3

4 DETAILED CONTENTS PAGE PART ONE: EMERGENCE OF THE NEW LAW 7 Chapter 1: Background 8 Boxes: - Common law and statutory offences 8 - The Identification doctrine 9 - Law Commission s Corporate Killing offence 10 - Scotland and the reform process 12 - Key differences between the new and old offences 13 Chapter 2: Summary of the Act: Conditions for a prosecution 14 Chapter 3: Assessment of the Act 17 PART TWO: ELEMENTS OF THE OFFENCE 20 Boxes: - Key clauses of the offence 21 Chapter 4: Has the harm, resulting in the death, taken 22 place in the UK? Boxes: - What kind of harm must take place 22 - Background to the issue of jurisdiction 23 - Jurisdiction: reform history 24 Chapter 5: Does the evidence relate to events on or after 25 6 April 2008? Boxes: - Commencement of Act: relevant sections 25 Chapter 6: What types of organisations can commit the offence? 27 Boxes: - Individual culpability? 27 - What is a Crown body? 28 - Organisations: How this differs from the past 29 - Public bodies within public bodies! 29 - Organisations: reform history 30 - Individuals: reform history 31 - Parent companies: reform history 32 Chapter 7: Duty of Care within the Act 33 4

5 Chapter 8: Is there a duty of care between the organization 34 and the deceased? Boxes: - Parent companies and duty of care 34 - Duty of care: reform history 36 - Government s arguments in favour of duty of care 37 Chapter 9: Does the duty of care fit within one of the categories 38 set out in section 2 of the Act? Boxes: - Meaning of construction or maintenance operation 40 Chapter 10: Exemptions to these categories of relevant 42 duty of care - Deaths resulting from public policy decision-making by a public authority - Deaths resulting from an activity considered to be an exclusively public function - Deaths arising from Ministry of Defense activities - Deaths resulting from policing and law enforcement activities - Deaths resulting from organisations carrying out emergency services - Deaths resulting from child protection and probationary duties - Deaths from statutory inspections Boxes: - What constitutes a public authority 42 - How wide is police immunity? 46 - Organisations exempted in relation to providing emergency response 48 - When will the child protection exemption apply? 49 - What is the reason for the exemption relating to probation? 50 - Exemptions: reform history 52 - Relevant duty of care: rule of thumb 53 - Government s arguments in favour of wide exemptions 54 - Does the offence comply with human rights law? 55 Chapter 11: Was there a failure in the way in which the 56 organisation was managed or organised? Boxes: - The way the organisation is managed or organised 56 5

6 Chapter 12: Was a substantial element of the failure at 57 senior management level? Boxes - What is senior management? 57 - How does the new test differ from the identification doctrine? 58 Chapter 13: Was there a gross breach? 61 Boxes - Health and safety guidance 61 - Gross breach: reform history 62 Chapter 14: Was the failure a cause of the death? 63 Boxes - Causation: reform History 63 PART THREE: INVESTIGATION, PROSECUTION AND SENTENCING 64 Chapter 15: Investigation 65 Boxes: - Investigation: reform history 67 Chapter 16: Prosecution 68 Boxes: - Private prosecution: reform history 69 Chapter 17: Sentencing 70 - Fines - Publicity orders - Remedial orders Boxes: - Application date of publicity orders 71 - Which enforcement agency? 71 - Why publicity orders? 72 - Comparisons with similar court powers 72 - The purpose and extent of remedial orders 73 - Compensation orders 74 - Sentencing: reform history 75 Annexes Schedule 1 to the Act: List of Government departments etc Special provisions allowing for the prosecution of unincorporated defendants Companies convicted of Manslaughter (as of 6 April 2008) CCA s Response to the Sentencing Advisory Panel 81 6

7 PART ONE EMERGENCE OF THE NEW LAW In this part, we introduce the purpose of this guidance, discuss the origins of the new Corporate Manslaughter and Corporate Homicide Act 2007, explain the failings of the old law, the negotiated history of the proposals to replace it, summarise the key provisions, and provide an overall assessment. Chapter 1: Background Chapter 2: Summary of the Act Chapter 3: Assessment of the Act 7

8 CHAPTER 1 BACKGROUND Purpose of the Guidance The new statutory offences of Corporate Manslaughter (in England, Wales and Northern Ireland) and Corporate Homicide (in Scotland) started to apply on 6 April This guidance produced by the Centre for Corporate All references in this guidance to the Accountability is intended to help a range of offence of corporate manslaughter refer interested groups and individuals whether they be equally to the offence of corporate personal injury lawyers, other advisors, trade unions homicide the name of the same offence and their safety reps, bereaved families, managers, in Scotland - unless it is clear from the directors or others to understand the nature of the context that this is not the case. new offence, in what circumstances organisations will be prosecuted, areas in which it remains open to legal interpretation, and so on. Specifically, this guidance addresses the following questions: - what kinds of organisations can commit this offence? - will the offence apply to non-uk organisations? - will the offence apply to deaths outside the UK? - when is there a relevant duty of care? - what kinds of management failure can be subject to prosecution? - what kind of senior manager conduct will result in a prosecution? - how will a jury decide whether the failure of the organisation is gross - how do you know whether a failure has caused the death? - what will happen to convicted organisations? Whilst comprehensive, the guidance tries to explain the new law in as accessible a manner as possible. Some elements of the offence are not clear and can be interpreted in different ways. Where this is the case, we analyse what the government intended to mean through considering what it said in Parliament during the course of house of commons and house of lords debates, the Explanatory Memorandum which was published alongside the Act, and the more recent Home Office guidance. In time, as these matters come up before the courts, the meaning of particular phrases in the Act will become more certain. Apart from explaining the current law, this guidance also helps explain how this new statutory offence differs from the old common law offence (see Box, Common law and Statutory offences), and what were the key arguments during the process of reform Common law and Statutory offences The old manslaughter offence is commonly described as a common law offence. This means that the offence is not set out in legislation that has been passed in Parliament, but is set out solely in case law - that is, in rulings made by judges over the years. The new offence is described as a statutory offence because it is set out in a law (also known as a statute or Act ) that has been passed in Parliament. 1 To see commencement order: This excludes the provisions that allow the offence to apply to deaths in custody, and to the use of publicity orders (see page 25) 8

9 in the 12 years since the Law Commission in England and Wales 2 published its proposals for reform in Why was reform considered necessary? The need for reform was recognised as long ago as 1990 due to the collapse of the trial against P&O European Ferries for the manslaughter of those who died when the Herald of Free Enterprise capsized off the coast of Zeebrugge. People were shocked that the company was able to escape conviction simply because the individual directors and senior managers were acquitted. This was possible because the law only allowed companies to be convicted of manslaughter if a senior manager or director of the company was convicted as an individual for manslaughter. (This test was known as the identification doctrine - see Box The identification doctrine ). It was recognised then, that there was a need for a new offence that would allow the company to be convicted on the basis of its own management failures, rather than on the basis of proving an offence against one or more specific individuals. It also came to be understood that the legal test under the existing offence seriously discriminated against small companies, whilst giving immunity to large ones. This was because with small companies, it could be more easily shown that the directors and senior managers of the company were well aware of the failures on the shop floor that resulted in the death, often giving direct instructions themselves that resulted in the death. In small companies, any worker s death from serious management failings could be more easily be traced back to an individual director or senior manager of a small company allowing the company to be prosecuted. The identification doctrine This is the name given to the test which is also sometimes known as the controlling mind doctrine - that underlay the old common law offence of corporate manslaughter in England and Wales. It meant that a company s guilt for a criminal offence was entirely dependent on the guilt of an individual senior enough within the company to be one of its controlling minds. Company directors were always considered to be controlling minds but so were senior managers, depending upon their level of control. The identification doctrine meant that if there was evidence to prosecute such an individual for manslaughter, the company could also be separately charged with the offence; and the guilt/innocence of the company was then entirely dependent on whether the individual was convicted or acquitted. In Scotland, the company could, in addition, be convicted of corporate homicide on the basis of a decision by a group of persons, such as a committee of directors. Large companies are different. They are often complexly organised, with most day to day decisions widely distributed and delegated. Any failures are often the results of many individuals working at different management levels within the organisation. As the Government said when introducing this legislation in Parliament The driving force behind the Bill is that fact that the current law of corporate manslaughter is based on too narrow a definition of corporate liability. The law works reasonably well for small organisations, but it does not reflect the reality of decision making in large or complex ones where failures in the management chain can rarely be laid at the door or a senior individual manager. 3 For this reason, it has been extremely difficult to get enough evidence to prosecute a single director or senior manager for the offence of 2 The Law commission is an independent body set up by Parliament to review and recommend reform of the law in England and Wales. 3 Report Stage, House of Commons, 4 Dec 06, col 67. 9

10 manslaughter in large companies. As a result, large companies usually avoided prosecution and always escaped conviction (see annex 3). History of Reform The reform process started in 1996 with the publication by the Law Commission for England and Wales of a report recommending reform of the law of manslaughter for both Law Commission s Corporate Killing offence (1) A corporation is guilty of corporate killing if: (a) a management failure by the corporation is the cause or one of the causes of a person's death; and (b) that failure constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstances. (2) For the purposes of sub-section (1) above: (a) there is a management failure by a corporation if the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities. individuals and organisations. In relation to organisations, it proposed the creation of a new statutory offence of corporate killing in which companies could be convicted following evidence that the death was the result of a serious management failure (see Box: Law Commission s Corporate Killing offence). 4 In 2000, following the election three years earlier of a Labour government, the Home Office published a consultation document on reform to the law of manslaughter. 5 In relation to the corporate offence, this report supported the proposed Law Commission offence of Corporate Killing but suggested that: the new offence should apply not just to companies but to all undertakings (other than crown bodies); 6 it may be appropriate for there to be a secondary offence so that directors and managers could be prosecuted for contributing to the offence by the organisation; and the offence should be investigated by the Health and Safety Executive and other similar regulatory bodies. 7 In addition it proposed the offence should allow parent companies to be prosecuted for deaths when their conduct was responsible for deaths within their subsidiary companies. The Government did not publish a formal response to this consultation process, but five years later published a summary of submissions made by the public. 8 In March 2005, after a delay of five years, the Home Office published a new consultation document with a new draft Bill this time concerned solely with the creation of a new offence of corporate manslaughter for England and Wales. 9 Although the proposed offence was based around the idea of the need to prove the existence of a serious management failure, it differed quite significantly from both the Law Commission and Home Office s previous proposals. It proposed: that the offence should, with significant exemptions, apply to crown bodies (though not to any other kinds of unincorporated bodies); that the offence should require the organisation to have had a civil law duty of care towards the deceased; and that the management failure be at a senior management level. In addition, the new Bill did not contain any new offences allowing for the prosecution of individuals, explicitly precluded the possibility of individuals being 4 : To understand what a crown body is, see Box: What is a Crown Body, on p To read more about the 2000 consultation: It did not concern itself with the individual offences of killing by gross carelessness or reckless killing which has been proposed earlier by the Law Commission in 1996 and the Government in

11 prosecuted for aiding and abetting, and rejected the idea of taking investigation responsibilities away from the police. Following the consultation process, the Bill was scrutinised by a joint committee of the Home Affairs and Work and Pensions Select committees (referred to in this report as the parliamentary scrutiny committee). In its report, published in December 2005, the scrutiny committee set out a number of concerns relating to the Bill. The main concerns were that: - the offence should apply to large unincorporated organisations and police forces; - it should be possible to prosecute parent companies in relation to deaths in their subsidiaries; - exemptions to crown body immunity should be more limited, and in particular the offence should apply to deaths in custody; - only high levels of public policy decision making should apply; - the offence should not require a civil law duty of care relationship; - the management failure should not be restricted to a senior level within the organisation; - the jury should not need to consider whether senior managers sought to cause the organisation to profit or benefit from the failure in determining whether there has been a gross breach; - consideration should be given to whether fines should be related to an organisation s turnover, and there should be additional sentences available to the court; - there should be an additional offence allowing the prosecution of individuals who are a party to the offence; and - private prosecutions should be possible without the consent of the Director of Public Prosecutions. 10 In its response to the Committee, the Government accepted only a few recommendations. These were that: public policy exemptions should apply at only a high level of decision making; the senior management test would be reviewed; the factors for the jury to consider should be changed; public body exemptions should be clarified; and the sentencing guidelines committee should draft guidance on sentencing. 11 In July 2006 the government published a revised Bill which was introduced into Parliament. This Bill not only applied to England and Wales, but also to Scotland and Northern Ireland (see Box: Scotland and the reform process, p. 12). Other than this, the key changes related to; detailing what public bodies and what activities would be exempted; a revised set of factors for the jury to consider in determining whether a senior management failure was gross; and applying the Bill to police forces (and not just police authorities). During the course of debate in the Commons and the Lords, the Government brought forward a number of amendments, the most important being the following: - the senior manager test was changed so that only a substantial element of the management failure must be at a senior manager level; - the offence would also apply to partnerships, trade unions and employer organisations as long as they were employers; - the court would have powers to impose a publicity order upon a convicted organisation; - the offence would, within a 3 to 5 year time period, apply to deaths in custody To read CCA s evidence to this:

12 Scotland and the Reform Process Until the Westminster government introduced its final Bill into Parliament in 2006, the reform process around the law of corporate manslaughter in England and Wales on the one hand and of corporate homicide in Scotland on the other, were on separate tracks. The Law Commission s 1996 proposals, and the two Home Office consultations of 2000 and 2005, only related to England and Wales and it had always been assumed that the Scottish Executive (established in 1999) would enact its own legislation applying to Scotland. Indeed, in April 2005, soon after the publication of the Home Office draft bill, the Executive set up an expert committee to advise it on what legal reforms should be made in Scotland. The Expert committee report made the following recommendations: - While there would be advantages in a uniform approach across the UK, this was not an overriding factor. What was more important was to get the law right for Scotland. - There should be an offence which makes organisations responsible for actions or omissions by their agents which result in death. An organisation should be liable where it fails to put policies, practices and systems in place to ensure the health and safety of its employees and those affected by its activities. This may include allowing, or failing to take all reasonable steps to prevent, a corporate culture to exist which encourages, tolerates or leads to an offence taking place. - Organisations would have a due diligence defence if they could show that they had policies and procedures in place which should have prevented such an incident taking place, and that they ensured a corporate culture which reinforced these policies and procedures. - The offence should cover unincorporated bodies and should extend - as far as practicably possible - to all Crown bodies. - The majority of the committee considered that: (a) the legislation should apply equally to deaths in Scotland caused by organisations based outside Scotland, and to deaths caused outside Scotland by organisations based within Scotland, and (b) there should be a secondary offence for individual directors/senior managers whose actions/omissions significantly contributed to death(s). - There should be a wide range of penalties available to the Court to enable sentences for organisations to reflect appropriately the specific circumstances of each case, including corporate probation, equity fines and community orders (To read the full report: It was with great surprise, therefore, that final bill introduced at Westminster in 2006, applied not only to England and Wales, but also to Scotland. The Government s explanation was that both the Scottish Executive and the Westminster Governments recognised that reform in this area was closely aligned to health and safety issues, which constitute a matter reserved for the Westminster Parliament to legislate. The Government also argued that it did not want a situation where companies would be operating under different regimes north and south of the border (19 Oct 2006, Commons Standing Committee, column 32) 12

13 Key differences between the new statutory and the old common law offence under the old common law offence, only companies could be prosecuted; the new statutory offence also applies to crown bodies, partnerships and some other unincorporated organisations (as long as they employ staff); there will now be one single offence for England, Wales, Scotland and Northern Ireland. Before, there were three separate common law offences: one for England and Wales, another for Scotland, and another one for Northern Ireland (although there were significant similarities between the three of them); under the old common law offence it was necessary to prosecute a director or senior manager (a controlling officer) of the company for manslaughter, in order to be able to prosecute the company for manslaughter. The prosecution against the company was entirely dependent on the evidence against the senior manager. Under the new statutory offence, the prosecution of a director or senior manager is no longer necessary. Instead, there is now an entirely new test to assess the guilt of the company that rests upon whether there has been a serious management failure within the organisation; there is a clearer test for assessing whether or not there has been gross negligence. The jury must consider that the organisation s failure fell far below what can reasonably be expected and there are factors set out that the jury need to take into account. under the old common law the offence, the only penalty was a fine. Under the new statutory offence, in addition to fines, the court has the power to make a remedial order that requires the company to remedy the breach of the Act. This is a similar power to the one that the courts have following convictions for health and safety offences. The court also has the power to make a publicity order that requires the organisation to publicise any conviction. Key Similarities the offences are both based around there being a gross breach of a duty of care it is investigated by the police and prosecuted by the Crown Prosecution Service (in England and Wales) and Procurator Fiscal Service (in Scotland) the main sentence is an unlimited fine 13

14 CHAPTER 2 SUMMARY OF THE ACT Conditions for a prosecution 1. The harm resulting in the death must have taken place in the UK (or in its territorial waters, or on a British ship, aircraft or hovercraft). The harm (that results in death) need not be a physical injury, it can also be a health impact, from a chemical or germ exposure (see Chapter 4). 2. The harm that results in the death must have taken place on or after 6 April 2008 (see Chapter 5). 3. The evidence to substantiate any of the management failures must have taken place on or after 6 April 2008 (see Chapter 5). 4. The organisation at fault must be either: (a) Corporate bodies - including all private companies, companies incorporated by statute including crown bodies, companies incorporated at common law or Royal charter or companies incorporated outside the UK. This includes local authorities, hospital trusts and other government bodies that are incorporated. Parent companies can be prosecuted but not for deaths resulting from the activities of their subsidiary companies (b) Crown bodies that are mentioned in a schedule to the Act this includes all government departments and some executive bodies (c) Police forces (d) Partnerships, employer bodies and trade unions (that employ staff) can also be prosecuted. (Hospitals and schools cannot be prosecuted but hospital trusts and local education authorities can be.) (see Chapter 6). 5. The responsible organisation must have owed a duty of care towards the person who died (see Chapter 8). 6. This duty of care must have be been of a particular kind falling into the categories set out in section 2 of the Act (see Chapter 9). In summary these must relate to the responsibilities of - organisations as employers and occupiers towards their staff and those who enter their land, premises etc; - organisations as manufacturers towards those who buy their products; - transport operators towards their passengers; - hospitals towards their patients; - local councils in the provision of particular services towards those receiving the services; - other organisations involved in the supply of goods or services towards those receiving them; - organisations involved in construction or maintenance operations towards those affected by their activities; 14

15 - organisations involved in the keeping of any plant, vehicle or other thing towards those affected by this; - commercial organisation to others affected by their activities. There is another category of duty of care concerning bodies responsible for those in state custody but this will only apply in three to five years time, 2011 to The duty of care must not have fallen into one of the exemptions contained in the Act. In summary these are: - where the death is a result of high level policy decision involving the allocation of resources made by a public authority; - a death which is the result of activities that only the state can uniquely perform (i.e granting of certain licenses, diplomacy etc.). This exemption does not include a death of a member of staff or involves the organisation s responsibilities as an occupier; - ambulance or fire or rescue services, where the death is of a member of the public due to how an emergency response was carried out (other than in the nature of medical care provided) ; - where the death is the result of the MOD undertaking any military operations (or preparatory activities or hazardous training activities in relation to them), even if the death involves a soldier; - where the death is the result of a public authority undertaking statutory inspections, a local authority undertaking its child protection responsibilities or a probation board undertaking its supervisory responsibilities - and the death is not that of a member of staff or does not relate to occupier responsibilities; - where the death is the result of the police force (or other public authority undertaking these functions) involving any policing or law enforcement activity and the death is not that of a member of staff or relates to occupier responsibilities. See Box: Relevant duty of care: Rule of Thumb, p 53 for a more detailed summary, and Chapter 10 for details. There are few exemptions for commercial organisations unless the death is the result of it carrying out activities whilst functioning as a public authority (in which case it has the same exemptions as public authorities have above), or if the commercial organisation is carrying out ambulance services on behalf of an NHS Trust etc, and a death takes place in the course of responding to an emergency. Private security firms do not have the same exemptions as police forces. (see Box: What constitutes a public authority, p. 42). 8. There must be a failure in the way in which the organisation was managed or organised which amounted to a gross breach of the duty of care. This requires evidence that the failure fell far below what can reasonably be expected. In assessing this, the jury must consider the seriousness of the breach of health and safety law and the extent to which it posed a risk of death. The Jury can also consider the extent to which the attitudes, policies, systems of accepted practices encouraged the failure, and whether there was any breach of health and safety guidance (see chapter 11 and 12). 15

16 9. A substantial element of the management failure must be at a senior management level. This is defined as the persons who play significant roles in (i) the making of decision about how the whole or a substantial part of its activities are to be managed or organised, or (ii) the actual managing or organising of the whole or a substantial part of those activities. (see chapter 13). 10. The failure must have caused the death. This need not be the only cause of death. One should be able to say that but for the failure in question, the death would not have taken place (see chapter 14). Investigation, Prosecution, sentencing 11. The police will be the main investigators of the offence but will, as now, be supported by health and safety regulators like the Health and Safety Executive. It will be prosecuted by the Crown Prosecution Service in England and Wales, and the Procurator Fiscal Service in Scotland (see chapters 15 and 16) 12. Private prosecutions can only take place after the DPP has given his or her consent (see chapter 16). 13. Convicted organisations can receive an unlimited fine. The Sentencing Guidance Council will publish towards the end of 2008 guidance to the courts in relation to the level of fines they can impose. The Panel, that advises the Council, has proposed fines of between 2.5% and 10% of an organisation s turnover (see chapter 17). 16

17 CHAPTER 3 ASSESSMENT OF THE ACT Holding large and medium sized organisations to account The new Act with its creation of a new test of organisational liability should make it easier to prosecute large and medium sized organisations. The particular positive elements of the new test are: - it is based around evidence of a serious management failure, not on serious individual failures; - there is a clearer test of whether or not the failure is gross namely, falling far below what can reasonably be expected in the circumstances ; - there are clear factors that the jury must take into account seriousness of the breach of health and safety law which will make it more straightforward for a jury in its consideration of the organisation s guilt; - there are additional factors that the jury can take into account including whether the organisation has breached any health and safety guidance, the organisations s attitudes, policies, systems or accepted practices. However, there is no certainty that it will make it easier to prosecute large and medium sized organisations, as there remains some doubt about how the Crown Prosecution Service (in deciding whether or not to prosecute) and the courts will interpret the requirement that a substantial element of the management failure must be at a senior management level. Assuming that this test works in the way that the CCA thinks and hopes it will (see Box: How does the new test differs from the identification doctrine?, p. 58), the new test should be an important advance in increasing corporate accountability following deaths. The issue of sentencing Making it easier to prosecute is one thing. Making convictions have real impact is quite another. At the end of the day, the success of the Act will depend on the size of the fines that the courts will impose on convicted organisations. The Sentencing Guidelines Council is now drafting guidance on this. A consultation document produced by the Sentencing Advisory Panel (SAP) which advises the Council - however proposed fines of between 2.5% and 10% of an organisation s turnover - a level of fine which, many would argue, fails to reflect the seriousness of the sentence that would be imposed upon an individual convicted of manslaughter. (See Annex 3: CCA s response to SAP). This is therefore troubling. Whilst conviction should not result in large or medium sized companies being forced to shut down (except in the most extreme of cases), the penalty imposed must be very significant indeed in its punitive and deterrent impact.. The final guidelines on this will not be produced until the end of Other positives but One should note that there are also clear benefits with the offence opening up to partnerships, police forces and crown bodies. Indeed, this is the first criminal offence to apply to crown bodies and to police forces! However, in relation to many activities of these public bodies law enforcement, emergency services, military operations, child protection issues, probation and statutory inspections gross failures will only be able to result in prosecution of the public body where the death was a gross failure in its responsibilities as an employer and occupier, not in 17

18 relation to its responsibilities as a provider of services and how this impacts on members of the public. That is to say, if an employee dies, prosecution can take place; if a member of the public dies as a result of provision of services, the public body cannot be prosecuted. Furthermore: - in relation to certain policing and military activities, there is total exemption; - if any death results from high level policy decision making relating to the allocation of resources, the public body has immunity; and - many public bodies will escape prosecution simply because they do not owe a civil law duty of care. These exemptions are clearly very disappointing and will result in inappropriate anomalies. In another Hillsborough disaster the police force could be prosecuted if it resulted in the death of a police officer, but not if it resulted in the death of a member of the public. In addition, it also means that in a situation where the public body can not be prosecuted although there were clear failures on its part the blame will fall solely on individuals. In addition, crown bodies (that are not separately incorporated by statute) can only be prosecuted if their names are mentioned in the schedule. Whilst all government departments are mentioned, there are many bodies which are part of government departments that are not. So whilst the Home Office is mentioned, the prison service is not, and nor are individual prisons. This means that only the government department and not the organisation itself can be prosecuted. This will make prosecutions involving these kinds of deaths very difficult indeed as the senior manager failure will have to be at the government departmental level (i.e. Home Office), not at the level of the sub-organisation (i.e. the prison) within the department. Deaths resulting from very serious failure (including at a senior manager level) at the level of the prison, will only be able to result in a prosecution if a substantial element of that failure was at a senior management level of the Home Office. Parent company immunity One impact of the offence being based around the need for a civil law duty of care is that it means that parent companies cannot be prosecuted for deaths resulting from the activities of its subsidiary bodies however serious the failure of the parent company. This is despite the Government in 2000 making it very clear that this was necessary (see Box: Parent Companies: Reform History, p. 32). Further delay before application One significant concern we have about the Act is that it will not apply to any death even if it took place after 6 April unless all the failures necessary to prove the offence also took place after that date. This will mean that prosecutions for this offence will not start for a very long time indeed particularly for large organisations. Whilst the Act should only apply to deaths after 6 April, it should apply if the management failures took place before then. The provisions that allowed this to happen were not raised by any member of Parliament or member of the Lords. Other smaller concerns There are some other disappointments: First, the fact that the offence does not apply in relation to any harm (resulting in a death) that takes place outside the UK even if the management failure took place in the UK. This creates a difference in treatment between organisations and 18

19 individuals (who can be prosecuted for manslaughter that they commit abroad). However, in the Lords the Government spokesperson did say, that there may well be a case for looking at jurisdiction further down the line. Second, the requirement for private prosecutions to have the consent of the DPP in order for them to proceed even though the Law Commission and the Home Office s first consultation document considered the requirement for consent unnecessary. The question of individual culpability Many have criticised the new Act in failing to deal with individual accountability in particular in relation to the conduct of directors and managers. The Act only allows for the prosecution of organisations - and individuals cannot be prosecuted for even contributing to this offence (although the ordinary law of manslaughter will apply to them). For those who think that prosecuting organisations is pretty worthless and that the only thing that will ensure proper accountability and deterrence is the prosecution of directors and managers followed on conviction by their jail sentence this new Act is "the dampest of damp squibs." 12 It is absolutely the case that the lack of individual accountability for directors and senior managers is a real problem. No director or senior manager of a large or medium sized company has ever been convicted for either a manslaughter or a health and safety offence. The government must respond to this particularly in relation to imposing duties on directors. And during the course of debate the Government appeared to commit themselves to serious consideration of reform. However, the failure to create an individual offence in this Act is not decisive (for us) in our assessment of it. It is important to be able to hold organisations, as well as individuals accountable under the criminal law, particularly in situations where management responsibility is diffuse and no individuals can be shown to have individually failed in a significant way. There is however a caveat to this. It depends on the court imposing, on conviction, very significant fines. Unless this happens, the Act will certainly be a damp squid. 12 Response of the trade union UCATT 19

20 PART 2 ELEMENTS OF THE OFFENCE This part of the guidance chapters 4 to 14 - looks at ten conditions that need to be proven in order for an organisation to be prosecuted for this offence. Chapter 4: Chapter 5: Chapter 6: Chapter 7 and 8: Chapter 9: Chapter 10: Chapter 11: Chapter 12: Chapter 13: Chapter 14: The harm, that resulted in the death, took place in the UK. Both the harm (that resulted in the death) and the evidence supporting the prosecution took place on or after 6 April The organisation considered responsible for the death is of the type that can be prosecuted for this offence. The organisation owed a duty of care to the deceased. The duty of care fits within one of the categories of duties of care set out in section 2. The duty of care does not come within one of the exemptions. There was a failure in the way in which the organisation was managed or organised (in relation to the circumstances that resulted in the death). This management/organisation failure amounted to a gross breach of the duty of care. A substantial element of the failure was at a senior management level. The failure was a cause of the death. 20

21 KEY CLAUSES OF THE OFFENCE 1 (1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised: (a) causes a person s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. (3) An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1). (4) (b) A breach of a duty of care by an organisation is a gross breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances. (c) Senior Management in relation to an organisation means the persons who play significant roles in- (i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or (ii) the actual managing or organising of the whole or a substantial part of those activities. 8 (2) The Jury must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation that relates to the alleged breach, and if so (a) how serious that failure was; (b) how much of a risk of death it posed. (3) The jury may also (a) consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure as is mentioned in sub-section 2 or to have produced tolerance of it (b) have regard to any health and safety guidance that relates to the alleged breach. 21

22 CHAPTER 4 HAS THE HARM, RESULTING IN THE DEATH, TAKEN PLACE IN THE UK? The offence will only apply if the harm that resulted in the death took place within the UK - England, Wales, Scotland and Northern Ireland. It is important to note that it is where the harm not the death - occurs that determines whether the offence applies. Usually, the death will occur at the same time or very soon after the injury, so both the injury and the death will take place in the UK. However, where the harm takes place in the UK but the death takes place some time after this in another country, then the UK courts will continue to have jurisdiction. What kind of harm must take place? In most cases the initial harm (that results in death) will be a physical injury. However, it could well be a health impact resulting, for example, from chemical, germ or other kinds of toxic exposure - that subsequently results in death. What is relevant is where the harm occurs. It is irrelevant where the management failure has taken place. So: - the offence will not apply if the management failure was in the UK but the harm resulting in the death was outside the UK; - the offence will apply if the management failure was outside the UK, but the harm resulting in the death was inside. It is therefore possible to prosecute foreign-based companies and partnerships 13 in relation to harm (that leads to death) when the harm takes place within the UK. Section 28 of the Act also allows the offence to apply if the harm resulting in the death takes place: within the territorial sea around the UK; 14 on or within 500 metres of offshore oil installations; 15 on a British ship, 16 wherever the ship is; on a British controlled aircraft, wherever that aircraft is; 17 on a British controlled hovercraft, 18 wherever that hovercraft is; outside of the British ship, aircraft or hovercraft (wherever that may be), where the body is outside of the vessel due to a wrecking or other kind of mishap The application of the offence to foreign registered companies and foreign partnerships, see chapter 6 14 Section 28(3)(a) of the Act. 15 Section 28(3)(e) of the Act. It is necessary first for an Order in Council to be adopted under section 10(1) of the Petroleum Act Section 28(3)(b) of the Act. The ship must be registered under the Merchant Shipping Act Section 28(3)(c) of the Act. What constitutes a British aircraft is defined by section 92 of the Civil Aviation Act 18 Section 28(3)(d) of the Act. The meaning of a British Hovercraft is defined in the Hovercraft Act Section 28(4) of the Act 22

23 Background to the issue of jurisdiction The position in relation to jurisdiction in the new Act (that the offence will only apply if the harm that resulted in the death took place within the UK) is arguably a step back from the position under the common law and, at the very least, it allows a situation to continue where British companies and organisations are treated differently from British citizens. There are two kinds of situations that can result in a death abroad: - where both (a) the gross failures that resulted in the death and (b) the death itself take place outside UK; and - where (a) the gross failures that resulted in the death took place in the UK, (b) but the death itself took place outside UK. In relation to both these options British citizens can be prosecuted. This is due to the application of section 9 of the Offences Against the Persons Act 1886, which states: Where any murder or manslaughter shall be committed on land out of the United Kingdom and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case shall amount to the offence of murder or manslaughter, So, could British companies have been treated in the same way as British citizens? Section 9 relates to the prosecution of any subject of Her Majesty. The question then is whether a company can be considered a subject of her Majesty. Black s Law Dictionary defines a subject as one that owes allegiance to a sovereign and is governed by his laws. The natives of Great Britain are subjects of the British Government. Men in free governments are subjects as well as citizens; as citizens they enjoy rights and franchises; as subjects they are bound to obey the law. It appears from this definition, that being governed and bound by the laws of the sovereign is the defining issue in relation to the definition of the subject. The fact that companies registered in Britain are bound by the laws of the sovereign would count in favour of them being considered subjects. It is therefore arguable that British companies could have been prosecuted for deaths that took place abroad - however, there has been no legal case on this point. It is however now clear that it is not possible to prosecute any organisation for manslaughter that takes place abroad whatever the legal position may have been. 23