1

GUIDANCE ON THE

CORPORATE MANSLAUGHTER

AND CORPORATE HOMICIDE ACT 2007

A COMPREHENSIVE BRIEFING FOR THE LAYPERSON

AND THE EXPERT

CENTRE FOR CORPORATE ACCOUNTABILITY

April 2008

2

P

The Centre for Corporate Accountability The CCA is a charity concerned with worker and public

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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

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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 76

1. 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. CCAs 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: http://www.corporateaccountability.org/manslaughter/reformprops/archive.htm

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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 Commissions 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

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

- Governments 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

- Governments 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

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 76

1. Schedule 1 to the Act: List of Government departments etc. 76 2. Special provisions allowing for the prosecution of unincorporated defendants 78

3. Companies convicted of Manslaughter (as of 6 April 2008) 80

4. CCAs Response to the Sentencing Advisory Panel 81

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

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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 2008.1

This guidance produced by the Centre for Corporate

Accountability is intended to help a range of

interested groups and individuals whether they be

personal injury lawyers, other advisors, trade unions

and their safety reps, bereaved families, managers,

directors or others to understand the nature of the

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

1 To see commencement order: http://www.opsi.gov.uk/si/si2008/uksi_20080401_en_1. This excludes the provisions that allow

the offence to apply to deaths in custody, and to the use of publicity orders (see page 25)

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.

All references in this guidance to the

offence of corporate manslaughter refer

equally to the offence of corporate

homicide the name of the same offence

in Scotland - unless it is clear from the

context that this is not the case.

9

in the 12 years since the Law Commission in England and Wales2 published its proposals for

reform in 1996.

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 workers 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.

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. http://www.lawcom.gov.uk/ 3 Report Stage, House of Commons, 4 Dec 06, col 67.

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

companys 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.

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

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

Commissions 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 Offices 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:http://www.lawcom.gov.uk/docs/lc237.pdf

5 http://www.homeoffice.gov.uk/documents/cons-2005-corporate-manslaughter/2000-cons-invol-manslaughter.pdf?view=Binary

6 To understand what a crown body is, see Box: What is a Crown Body, on p.28.

7 To read more about the 2000 consultation: www.corporateaccountability.org/manslaughter/reformprops/2000/main.htm

8 http://www.homeoffice.gov.uk/documents/cons-2005-corporate-manslaughter/2000-cons-summary-responses.pdf?view=Binary

9 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 2000..

Law Commissions 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.

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 organisations 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.

10

http://www.publications.parliament.uk/pa/cm200506/cmselect/cmhaff/540/54002.htm

To read CCAs evidence to this: http://www.corporateaccountability.org/manslaughter/reformprops/2005/main.htm 11

http://www.official-documents.gov.uk/document/cm67/6755/6755.pdf

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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 Commissions

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: www.scotland.gov.uk/Topics/Justice/criminal/Corporate/finalreport)

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 Governments 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)

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 organisations 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

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;

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 2013.

7. 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 organisations 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).

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 organisations turnover (see chapter 17).

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

organisations guilt;

- there are additional factors that the jury can take into account including whether the

organisation has breached any health and safety guidance, the organisationss 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

organisations 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: CCAs 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 2008.

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

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 2008 - 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

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 Offices 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 http://news.bbc.co.uk/1/hi/uk/7332900.stm

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: The harm, that resulted in the death, took place in the UK. Chapter 5: Both the harm (that resulted in the death) and the evidence

supporting the prosecution took place on or after 6 April 2008. Chapter 6: The organisation considered responsible for the death is of the type

that can be prosecuted for this offence. Chapter 7 and 8: The organisation owed a duty of care to the deceased. Chapter 9: The duty of care fits within one of the categories of duties of care

set out in section 2. Chapter 10: The duty of care does not come within one of the exemptions. Chapter 11: 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).

Chapter 12: This management/organisation failure amounted to a gross breach

of the duty of care. Chapter 13: A substantial element of the failure was at a senior management

level. Chapter 14: The failure was a cause of the death.

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 persons 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.

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 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 partnerships13

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.19

13

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

1998. 16

Section 28(3)(b) of the Act. The ship must be registered under the Merchant Shipping Act 1995 17

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 1968 19

Section 28(4) of the Act

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.

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. Blacks 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.

24

Jurisdiction: Reform History

In 1996, the Law Commission recommended in its report, that the offence would apply if the injury

that results in the death is sustained in England and Wales, on any vessel in territorial waters or a

British vessel elsewhere, on a British-controlled aircraft in flight outside the United Kingdom, or in

any place to which an Order in Council under section 22 of the Oil and Gas (Enterprise) Act 1982

applies. (para 8.61) In its 2000 consultation document, the Government accepted this position. It

stated:

The Government considers that there would be very considerable practical difficulties if we

were to attempt to extend our jurisdiction over the actions abroad of companies registered in

England or Wales. These difficulties would mean that the prosecution of offences committed by

English or Welsh companies within other states' territory would be practically unenforceable. Our

police have no authority to gather evidence abroad and contrary to the system prevailing

elsewhere in Europe, where written evidence is admissible, our courts have a tradition of oral

evidence and cross-examination. Furthermore, the Government will only consider taking extra-

territorial jurisdiction where dual criminality exists i.e. where the behaviour concerned constitutes

an offence both here and under the laws of the country in which it occurred. We apply this policy

so that we cannot be accused of "exporting our laws". (Para 3.73)

The Government recognised that this will lead to a situation where a natural person will be

potentially liable in the English courts to prosecution for an involuntary homicide offence committed

abroad whereas an [organisation] will not be.

The CCA argued, in its response to the consultation document, that any practical difficulties in the

investigation of organisational defendants would be the same for investigating individual defendants.

It also critiqued its interpretation of dual criminality. To read CCAs response in 2000, see:

www.corporateaccountability.org/responses/hom/ccahojuris.htm

In its 2005 draft Bill, the Home Offices position remained the same. The Parliamentary Scrutiny

Committee said that in principle it should be possible to prosecute a company for corporate

manslaughter when the grossly negligent management failure has occurred in England or Wales

irrespective of where a death occurred. If this was not the case, there would be no incentive for such

companies to improve or maintain acceptable standards of health and safety in the activities they

conduct abroad. However, it accepted that there could be some practical limitations so only proposed

that jurisdiction should extend to harm that took place in Scotland and Northern Ireland (at that time

the offence only applied to England and Wales) and that provision should be made in the Bill for the

offence later to be extended at least to cover cases where deaths have occurred in the rest of the

European Union. (para 253/254). The Government in its response to the committees point about EU

Application stated that Government did not believe that it is appropriate to seek to apply UK standards [as set out in the Health and Safety at Work Act 1974] abroad in this way.

The Bil,l introduced into Parliament in 2006, applied the offence to the whole of the UK. During

debate in Parliament, an amendment was debated that would have allowed prosecution of British

organisations where the management failure was in the UK, but the harm resulting in the death took

place abroad. In response to this, the Minister argued that, apart from the difficulties in investigating

the offence, there is also the fact that fundamentally the way a company operates overseas is a matter

for the country concerned. However, he did accept that there may well be a case for looking at

jurisdiction further down the line, but we need first to get the offence on the statute book and

working. (See Commons Committee, 29 Oct 2006, column 219, 220)

25

CHAPTER 5

DOES THE EVIDENCE RELATE TO EVENTS ON OR AFTER 6 APRIL 2008?

The Act only becomes effective on 6 April 2008.

20 It is not only necessary that the harm resulting

in the death take place on or after that date, but anything done or omitted must also take place

after that date, in order for the offence to apply. If any of the conduct or events alleged to

constitute the offence occurred before21

that date, the common law offence will continue to

apply.

What this means that is that if the offence can

only be proved on the basis of evidence of

acts, failures, decisions etc. that occurred

before 6 April, then a prosecution under the

new statutory offence cannot take place. In

such a situation the existing law will continue

to apply.

This makes it likely that prosecutions under

the offence will not take place for quite some

time, even if the death took place after 6

April 2008, since the evidence proving gross

management failure will relate to events,

decisions, inaction, and so on, that are likely

to have taken place many months and even

years before then.

This will have a particular impact upon

deaths involving large organisations which

often involve evidence that goes back a

number of years - where this evidence might,

for example, relate to decisions taken long

ago, or long-standing but poor systems of

maintenance, training, or communication of

information.

Deaths in custody

Section 2(1)(d) and section 2(2) which together create a relevant duty of care between

organisations and for deaths in their custody and allows them to be prosecuted for failures in their

management of custody will not apply until a further commencement order is made by the

Secretary of State. The Ministry of Justices guidance says that the Government is working to

20

As a result of a commencement order made by the Secretary of State. 21

Section 27(5)

Commencement of Act: relevant sections

20. The common law offence of manslaughter

by gross negligence is abolished in its

application to corporations, and in any

application it has to other organisations to

which section 1 applies.

27 (1) the preceding provisions of this Act come

into force in accordance with provision

made by order by the Secretary of State.

(3) Section 1 does not apply in relating to

anything done or omitted before the

commencement of that section.

(4) Section 20 does not affect any liability,

investigation, legal proceeding or penalty

for or in respect of an offence committed

wholly or partly before the

commencement of that section.

(5) For the purposes of subsection (4) an

offence is committed wholly or partly

before the commencement of section 20

if any of the conduct or events alleged to

constitute the offence occurred before

that commencement.

26

implement that aspect of the legislation within 3 years of the offence itself [6 April 2008], but

has indicated that a period of up to 5 years might be necessary.22

Publicity Orders

The Secretary of State will need to make a further order for the provisions on publicity orders to

apply. The Government is waiting for guidance to be issued by the Sentencing Advisory Panel on

how to sentence organisations convicted of the new offence of Corporate Manslaughter which

will in part deal with the use of publicity orders. A consultation document was issued by the SAP

in December 2007 (See Annex 3: CCAs response to SAP) and a final set of guidelines is due to be

ready by the Autumn of 2008.

22

See Ministry of Justice Guidance

27

CHAPTER 6

A TYPE OF ORGANISATION THAT CAN COMMIT THE OFFENCE?

Section 1(2) of the Act sets out which organisations can commit the offence. These are:

Corporations incorporated in the UK or in any other country.23

This includes:

- Private and public companies (incorporated through Companies Act legislation);

- Public bodies that have been made companies

by statute. This includes, for example, local

authorities24

and NHS Trusts, and also some

crown bodies like the Postal Services

Commission and the Office of the Rail

Regulator, the Charity Commission, Postal

Services Commission and Northern Ireland

Departments;

- Companies set up under Royal Charter (such as

the BBC and some universities);

- Companies set up under common law (such as the corporation of London);

- Limited liability partnerships;

Departments of Government and other government bodies whose names are set out in an

annexure to the Act (see list at annex 1 of this guidance). These organisations are all crown

bodies, but are not incorporated.

Police forces; and

Partnerships,25

trade unions or employer associations26

who are employers.

The Act specifically states that an organisation that is a servant or agent of the Crown is not

immune from prosecution under this Act for that reason.27

Therefore, even if the name of the

23

Corporation is defined in section 25 of the Act as not including a corporate sole but includes any body corporate wherever

incorporated. 24

Local Government Act 1972 25

A partnership is defined as (a) a partnership within the partnership Act 1980, or (b) a limited partnership registered under the

Limited Partnerships Act 1907, or a firm or entity of a similar character [to either of these] formed under the law of a country or

territory outside the United Kingdom. (Section 25) 26

Section 25 of the Act defines an employers association has having the meaning given by section 122 of the Trade Union and

Labour Relations (Consolidation) Act 1992, or Article 4 of the Industrial Relations (Northern Ireland) Order 1992 27

Section 11(1)

Individual culpability?

This offence can only be committed by

organisations not individuals. Section

18 of the Act explicitly states that no

individual can be prosecuted for either

aiding, abetting, counseling or procuring

(or, in Scotland, being art and part in)

the commission of the offence. (See

Box: Individuals: Reform History, p.

31)

28

crown body is not mentioned in the

appendix to the Act, it can still be

prosecuted as long as it has been

incorporated by statute.

Whether a non-departmental public body

(NDPB) can be prosecuted as a separate

organisation depends on its legal status.

Those that are known as Executive NDPB's

will most often have been established as

corporate bodies by statute and can be

prosecuted. Other kinds of NDPBs28

do not

have a separate legal status and will often be

considered to be crown bodies. Unless their

names are set out in schedule 1 to the Act

(see annex 1 of this guidance), they cannot

be prosecuted; so a death as a result of the

activities of such an NDPB can only result

in the prosecution of the sponsoring

department of government for which it is

part, which will depend upon the failure being at the departmental level rather than at the NDPB

level.

The Secretary of State can, by order, extend the categories of organisation to which the offence

will apply.29

Which organisations cannot be prosecuted under new offence? Schools: No state or maintained school itself can be prosecuted for this offence as they are not

corporate bodies. However, Local Education Authorities (LEA) which are incorporated by

statute and act as the employers of community and voluntary aided schools30

- can be

prosecuted. However, where the serious failures are at a school management level (however

senior) rather than at the LEA level no prosecution will be possible. Only private schools set

up as corporate bodies can be prosecuted (see Box: Public bodies within public bodies!, p. 29)

Hospitals: The situation with hospitals is similar to that of schools. NHS hospitals cannot

themselves be prosecuted as they are not corporate bodies. However, NHS Trusts which have

responsibility for the management for one or more hospitals are incorporated by statute and can

be prosecuted. Therefore, hospital deaths that are only the result of failures at a hospital level

(however senior), but not at the NHS Trust level, cannot be prosecuted (see Box: Public bodies

within public bodies!, p. 29).

Clubs: Many clubs are set up as unincorporated associations. These cannot be prosecuted.

28

See Chapter 2 of the Public Bodies: A guide for Departments http://www.civilservice.gov.uk/about/public/bodies.asp 29

This has to be done by affirmative resolution procedure thorough a resolution voted on by both houses of parliament, 30

In other kinds of schools, the employer is the board of governors, which generally are not corporate bodies.

What is a Crown Body?

There is no clear definition of a Crown body. There

is no doubt, however, that Government

Departments are Crown bodies. In relation to other

central government organisations it depends upon

the extent to which ministers can exercise control

over the organisation. Sometimes it is clear through

the statute that set out the organisation in the first

place whether the organisation is or is not a crown

body. For instance, the Radiological Protection Act

1970 provides that, with certain exceptions, that the

Protection Board created by the Act "shall not be

taken to be a servant or agent of the Crown of the

enjoy and status or immunity of the Crown", whilst

the National Health Service and Community Care

Act 1990 states that "no health service body shall

be regarded as the servant or agent of the Crown or

as enjoying any status, immunity or privilege of the

Crown". Local authorities, hospital trusts are not

crown bodies and nor are police forces.

29

Prisons: Prisons cannot be prosecuted as separate

entities in themselves though the Home Office

can be.

Special provisions

See annex 2 for an explanation of special

provisions in this Act that make technical

changes allowing for the prosecution of non-

corporate bodies.

Organisations: How this differs from the past

The common law offence only applied to (a)

private and public companies set up under

Companies Act legislation; and (b) other

corporate bodies established by statute. It did

not apply to any unincorporated bodies (e.g.

police forces, partnerships) or any crown

bodies. The application of the new offence to

crown bodies, police forces, and those

partnerships/trade unions/employer

associations that are also employers is new.

It is notable that police forces, which can be

prosecuted under the new Act, cannot be

prosecuted under health and safety law only

the Commissioner of the Police (representing

the police force) can be prosecuted.

Public bodies within public bodies!

It is often the case that government bodies are

themselves comprised of one or more separate

organisations which appear to have some kind

of separate identity. So the Home Office has

within it the Prison Service which itself is

comprised of a number of prisons. There are

many other examples like this. What happens if

a person (eg. a prison officer) died as a result

of the activities of one of these separate

organisations (a prison) - which organisation

can be prosecuted? Assuming all other parts of

the test have been met, the way to think about

this is to ask, Does the organisation (which is

the direct cause of the death) fit within one of

the organisation categories that can be

prosecuted? So with the death of a prisoner, a

prison is not a corporate body, and prisons are

not individually listed in the schedule in the

Act. So they cannot individually be prosecuted.

In that case, is there another body, which

manages the organisation that can be

prosecuted? The prison service is in charge of

prisons but it also is not a corporate body or

separately listed in the Schedule. No

prosecution of the prison service is therefore

possible. However, the prison service is part of

the Home Office and this is listed in the

schedule. Therefore the Home Office could be

prosecuted for the death of the prison officer.

However, for the Home Office to be

prosecuted, a substantial element of the

management failure must be at a senior

management level within the Home Office as

this is the body that is being prosecuted - not

within the prison. This therefore will make it

extremely difficult to prosecute deaths that are

the results of failures of bodies within public

bodies.

This kind of issue also affects deaths in schools

and hospitals.

30

Organisations: Reform History

The Law Commission in 1996 stated that the offence should only extend to all corporations irrespective

of the legal means by which they are incorporated. (Para 8.51) Although it recognised that partnerships

and other unincorporated bodies were for practical purposes indistinguishable from corporations, it

did not recommend that the offence should apply to them at the present time. (Para 8.54) The

Commission was silent on the issue of corporate bodies that were also crown bodies.

In its 2000 consultation document, the Government stated that the exclusion of unincorporated bodies

would lead to an inconsistency of approach and these distinctions might appear arbitrary.(Para 3.2.3)

It also stated that it did not wish to see enterprises deterred from incorporation and that the

Government was inclined to the view that the new offence should apply to all undertakings defined

as any trade or business or other activity providing employment. This would have been wide

enough to include most unincorporated bodies including schools. (Para 3.2.5) Although the Government

did not think that crown bodies should be able to be prosecuted for the offence, it did think that

government bodies should be held accountable where death occurs through management failure. It

recommended that courts should be able to make a declaration of non compliance with statutory

requirements a process adopted in the Food Safety Act 1990. (Para 3.2.8)

In its March 2005 consultation document, the Government changed its mind both on crown bodies, and

on unincorporated bodies - though in different directions In relation to crown bodies it argued that there

should be no general crown immunity providing exemption from prosecution. (Para 42) In relation to

unincorporated bodies, it argued that, as they had no separate legal identity and often had no recognised

structure where designated post holders must be appointed and formally represent the company, and

had a constantly changing membership they should not be able to commit the offence. (Para 44)

The Parliamentary Scrutiny Committee in December 2005 argued that the offence should apply to large

unincorporated organisations (para 62). In its response the Government said that data from the HSE

showed that only 2% of all of its prosecutions against an unincorporated body and most of these were

very small organisations. However, the Government accepted that there should be no readily avoidable

gaps in the law and will consider further whether there are any straightforward ways of extending the application of the offence to some types of unincorporated body. (page 4)

The Bill introduced into Parliament in 2006 did not apply to unincorporated bodies; however, at the

House of Lords report stage and under pressure, the Government amended the Bill so that it also

applied to partnerships, trade unions and employer organisations (as long as they employed staff).

The Ministry of Justice accepted that this was a cautious approach and says in its guidance note: We

think it is right to take a cautious approach in extending the offence to unincorporated associations: this

will represent a new extension of the criminal law to these organisations. Extending the offence to

partnerships will ensure that an important range of employing organisations, already subject to health

and safety law, is within the offence and that large firms are not excluded because they have chosen not

to incorporate. However, the Government also amended the Act so that government can, by order,

extend the categories of organisation to which the offence will apply.

31

Individuals: Reform History

One of the most contentious questions in the reform debate has been whether the offence should

apply in some way to individual directors or managers. This could have been made possible in two

ways: allowing an individual to be prosecuted for either: (a) aiding, abetting, counseling or

procuring the offence by the organisation; or (b) for a separate offence relating to that individuals

contribution to the offence committed by the organisation. The Law Commissions report in 1996

considered that individuals should not be able to be prosecuted as a secondary party to the offence

in either of these ways (para 8.58).

The Home Offices 2000 consultation, however, took a different position. It stated that it was

concerned that failing to take action against individual directors and senior managers would fail to

provide a sufficient deterrent, particularly in large or wealthy companies or within groups of

companies; and would not prevent culpable individuals from setting up new businesses or managing

other companies or businesses, leaving the public vulnerable to the consequences of similar conduct

in the future by the same individuals. It stated that it was inclined to the view that action against

individual directors or officers might be justified even in cases where a company found guilty of

corporate killing could pay the fine imposed by the court and/or comply with a remedial order.

(para 3.4.9) It proposed that any individual who could be shown to have had some influence on, or

responsibility for, the circumstances in which a management failure falling far below what could

reasonably be expected was a cause of a person's death, should be subject to disqualification from

acting in a management role in any undertaking carrying on a business or activity in Great Britain.

The Government considered going even further. It said: However, it has been argued that the public

interest in encouraging officers of undertakings to take health and safety seriously is so strong that

officers should face criminal sanctions in circumstances where, although the undertaking has

committed the corporate offence, it is not (for whatever reason) possible to secure a conviction

against an individual. In order to go down this route, it would be necessary to create an additional

criminal offence in respect of substantially contributing to the undertaking in question's corporate

offence, leading to the death of a person. The Government has reached no firm view on this

suggestion. (para 3.4.13)

However, by 2005, the government had totally changed its mind. In its consultation document it

said: We are clear that the need for reform arises from the law operating in a restricted way for

holding organisations themselves to account for gross negligence leading to death. Our proposal to

tackle this focuses on changing the way in which an offence of manslaughter applies to

organisations, and this is a matter of corporate not individual liability. (para 47) Not only did the

Bill not include an additional offence, but it also precluded the possibility of prosecuting an

individual for aiding and abetting the offence.

The Parliamentary Scrutiny Committee criticised this view and argued that there should be a

separate offence that allowed a director to be prosecuted for consenting or conniving in the offence

by the organisation. In response to this, the Government said that such an offence, by enabling a person to be convicted on the basis of neglect, would introduce a substantially lower threshold [of culpability] than is required either for the new corporate offence or for manslaughter. It

argued that in order for an individual to be found guilty as an accessory (aiding and abetting etc), an individual would need to be aware of the picture of failing in the organisation, at least contemplate it being grossly negligent and act in a way that supported or sought to bring that about. However, it is likely that in these circumstances an individual charge of manslaughter would in any event be possible. (p. 30)

. In parliamentary debate, it argued that an individual who could be prosecuted for aiding and

abetting could in any case be prosecuted for the individual offence of manslaughter. To show that

an individual aided and abetted, counselled or procured an offence it would generally be necessary

to show that the accessory had a similar state of mind as the main offender, or at least knew or

intended that the offence would be committed. In the context of corporate manslaughter this would

mean that an individual would need to be aware of the picture of failing in the organisation, at least

contemplate it being grossly negligent and act in a way that supported or sought to bring that about.

32

Parent Companies: Reform History

The Law Commissions 1996 report did not mention whether parent companies could be held

responsible for deaths within their subsidiaries. However, in 2000, the Governments consultation

document stated that

The Government is concerned that it should not be possible for holding companies to attempt

to evade possible liability on a charge of corporate killing through the establishment of

subsidiary companies carrying on the groups riskier business which could most readily give

rise to charges of corporate killing. Moreover, we are concerned by the possibility that a

subsidiary company within a large group of companies might not have insufficient assets to

pay a large fine, and that, in such cases, liability could not be transferred to its parent company.

The Government recognises that a company must be convicted on a charge of corporate killing

in proper proceedings, and that such liability cannot simply be moved around within a group of

companies. Equally, we believe that it is important that group structures should not be used as a

mechanism for evasion. The Government therefore proposes that the prosecuting authority

should also be able to take action against parent or other group companies if it can be shown

that their own management failures were a cause of the death concerned. (para 3.4.5)

In 2005, with the publication of the new draft bill, the Governments position had changed. Since

the new offence was based on the need to prove a duty of care and parent companies did not owe

duties of care in relation to the activities of their subsidiaries, the government took a position that

parent companies could only be prosecuted for breaching its own duties of care as a company.

(para 37)

The Parliamentary Scrutiny Committee agreed with the Governments position in 2000 and concluded

that we agree that it should be possible to prosecute parent companies when a gross management

failure in that company has caused death in one of their subsidiaries. (para 113) It went onto say that

We are concerned by the suggestion that it may not be possible to prosecute parent companies under

the current law, as courts have not ruled that parent companies have a duty of care in relation to the

activities of their subsidiaries. This is an additional argument in favour of our recommendation that the

offence should not be based on civil law duties of care. (para 115)

In its response the Government did not change its position. In response to a concern that this would

result in companies restructuring themselves, it stated: We do not believe that the new offence will be

a dominant consideration for structuring decisions, which are more likely to be taken for reasons of

tax, limited civil liability, effective collaboration in a joint venture or local regulatory conditions.

(page 12)

The issue was discussed in the House of Lord Grand Committee when an amendment was tabled

which would have allowed parent companies to be prosecuted for an offence if they failed to take all

reasonable steps in preventing their subsidiary from committing an offence. Lord Brennan stated that,

I have had a case in which a subsidiary operated a grossly unsafe system of work and the parent

company, which knew about it because the safety officer in the subsidiary company had complained

about it, but which had nevertheless let the company operate that system refused its request for

funding to introduce a safety system. Lord Bassam of Brighton for the Government however said,

the parent company in a group of companies is a separate legal entity and as such is not subject to

any legal obligation to prevent those subsidiaries committing any crime