1.The need for Reform
There can be no doubt that common law involuntary
manslaughter has developed in an unsatisfactory way and would
benefit from codification. We are disappointed however that the
government's proposal document fails to look critically at the need
for a special offence of corporate manslaughter.
1.1 The Values Underlying the Existing
Law
The current offence clearly carries a significant
stigma, representing as it does management failure at the highest
levels.
It is clear that corporate manslaughter convictions
can and do succeed under the existing common law. We believe that
too much has been made of the fact that prosecutions in certain
high profile cases (primarily Zeebrugge and Southall) have been
ultimately unsuccessful. It is clear that they failed principally
for reasons for lack of evidence of serious management
failures.
In proposing to reduce the threshold of blame
worthiness attached to the offence, we believe the government has
underestimated the effect of 'devaluing' the offence. The
devaluation effect is made worse by the proposal (which we oppose
see 2.3 below) that alternative to verdicts under Section 2 or 3 of
the Health and Safety at Work Act 1974 should be available. If a
corporate killing offence is to keep its stigma as representing the
most serious of offences there should remain 'clear blue water'
between it and the HSWA offences: the differential must reflect the
contrasting degrees of blameworthiness.
1.2 Lack of Evidence for Deterrent
Effect
We do not believe that the Law Commission or the
government have undertaken any serious analysis of how deterrent
effect will be achieved through a new offence. We question whether
deterrence can operate at the level of inadvertence and unconscious
risk taking which is the typical characteristic of workplace
accidents. No evidence has been put forward to support this
view.
It is instructive to consider the position in other
European countries where corporations and or individuals have for a
longer time been subject to prosecution for homicide under their
criminal codes. If there were a significant deterrent effect one
might reasonably expect to see a correlation with the data on
serious accidents in those countries. In fact this is not the case
as maybe seen by comparing the good record of the UK (and Ireland)
with most other European countries.
1.3 Inconsistent Policy Objectives
The DTI/HSC document "Revitalising Health and
Safety" and the involuntary manslaughter proposals appear to
lack consistency. One of the themes behind "Revitalising Health
and Safety" is the need to encourage companies to allocate to
specific individuals high level management responsibilities. The
corporate killing proposals offer no incentive to the most senior,
or effective executives to embrace these responsibilities. They are
in fact a disincentive. The corporate killing proposals will cause
individuals to act defensively, and is likely to reinforce a
tendency for buck passing, and it will not motivate companies to
admit frankly and confront management failures which they might
need to address.
Sophisticated foreign companies and investors will
in our experience watch developments in this area closely. If they
perceive the UK as becoming a high risk area for liability compared
to other jurisdictions they are likely to set this off against more
positive factors for locating and/or investing in this country.
We are aware that the lack of coherent policy
behind these different government initiatives is a matter of
concern to various companies and we share these views.
1.4 The Issue of Accountability
Companies are obviously accountable under specific
regulatory codes governing safety of workers and the public eg the
HSWA, the Consumer Protection Act and the Food Safety Act. There is
no obstacle to prosecution under this legislation being taken in
relation to individual fatalities or large scale disasters. Such
legislation typically also makes provision for secondary offences
of consent, connivance or neglect by directors, officers and senior
managers. (The fact that prosecutions for such offences are rare
its an important indicator of the problems that attach to personal
prosecutions even where the prosecution burden of proof is
low).
The issues therefore are not accountability per
se but whether such offences penalise a convicted defendant.
In this respect the Court of Appeal has responded to calls for
companies to be fined at a realistic punitive level (R v F.
Howe & Sons [1999] 2 All ER 249), and there are now many
examples of substantial penalties having been imposed for workplace
deaths.
We find the government's position on this issue in
the corporate killing proposals unclear. References made (paragraph
3.1.5) to "an apparent perception among the public" that
the law is inadequate in relation to corporate killing. It is
difficult to understand such perceptions could be dealt with by the
creation of a less serious corporate killing offence than common
law manslaughter (as is inevitable with the weaker evidential tests
involved).
The credibility of the enforcement of regulatory
statutes by HSE and other agencies is undermined by the government
promoting the view that they are not 'proper' criminal offences or
dismissing them as failing to provide accountability.
2 Interpretation and related Problems with
the Draft Corporate Killing Offence
2.1 Drafting Issues
It is unfortunate that this consultation exercise
is proceeding on the basis of the Law Commission draft Bill which
reflects very little of the government's thinking as set out in the
proposal document. If the wording of clause 4 of the draft Bill
were to be adopted we consider that there will be many problems of
interpretation. Please refer to the more detailed comments set out
in annex 1.
2.2 Consistency Between the Offences
If a new corporate killing offence is introduced it
should retain a close link with the other proposed involuntary
manslaughter offences. This can be achieved by recognising a
corporate version of the offence of killing by gross negligence.
The essential mental elements of this offence should be preserved -
obviousness of the risk of death or serious injury (based on an
objective standard) together with capability of appreciating that
risk at the material time. In considering whether conduct falls far
below what can be reasonably expected there should be specific
provision made for consistency of approach with the concepts of
tolerability of risk built into the HSWA, which are expanded upon
in the Approved Code of Practice to the Management of Health and
Safety at Work Regulations 1999.
2.3 Use of Alternative Offences Under
HSWA
We have commented already on the negative effect of
having the alternative available of conviction for health and
safety offences where corporate killing is charged. An additional
consideration is the practical difficulties of conducting trials in
such circumstances. The nature of the HSWA offences is such that
the prosecution carries the burden of proof in relation to
establishing the defendant's failure to ensure safety, and the
defendant must then prove on the balance of probabilities that it
had done "all that was reasonably practicable" to comply with the
duty (section 40 HSWA). The availability of an alternative verdict
is fundamentally unfair to defendants in such circumstances since
in defending the corporate killing charges there is no evidential
burden upon them. (It must be appreciated that there is therefore
not a proper comparison to be made with the availability of
manslaughter as an alternative verdict in a murder case.)
3. Comments on Specific Questions
Made
3.1 Should there be an additional involuntary
homicide offence covering situations where a minor injury was all
that was intended but death occurs?
The proposed "third offence" is
inconsistent with the other proposed involuntary manslaughter
offences. The Law Commission's approach should be supported.
3.2 Are proposed maximum penalties
appropriate?
Yes, except that the five year maximum for the
proposed third offence is too high and (if adopted) should be a
period of up to 2 years.
3.3 Should the offence of corporate killing
apply to "undertakings"?
We agree that in principle it should, but this is
not as straightforward an issue as the proposal document appears to
suggest (or as perhaps the HSE would argue it is). There are
significant difficulties in applying the concept of liability of an
undertaking in to situations where one business has contracted
goods or services from another business. This matter has been a
subject of House of Lords decision in R v Associated Octel
Limited [1996] 1WLR 1543 which has left the law in an
unsatisfactory state. The problems will be particularly acute if
the corporate killing offence is alleged where the principal's
conduct might be a "a cause" in relation to an accident,
the main cause of which is the conduct of the contractor. These
difficulties should be resolved by clarity in the legislation.
3.4 The application of Crown Immunity
Crown Immunity is a little-understood concept and
although on balance we would favour the exclusion of Crown Immunity
for this offence, it would be preferable for this to be dealt with
in a wider view of Crown Immunity so that there is a consistent
position with, for example, the Health and Safety at Work Act and
other regulatory statutes. However, if Crown Immunity is not
excluded, clarity will be required as to who precisely the
defendant would be in any given case - ie will it be the Crown
itself or a minister? If managers' offences are created as is being
proposed for corporations, civil servants should be subject to the
same personal liabilities.
3.5 Role of Enforcing Authorities in
Investigating and Prosecuting the New Offences
We are strongly against the HSE, Environmental
Health Officers or the variety of other agencies having control
over these investigations and prosecutions for various reasons.
Firstly, they are not independent of government
control. For the same reasons that it was considered appropriate
for the Crown Prosecution Service to take over the investigation
and prosecution from the police some years ago, we consider that
the CPS and ultimately the DPP should exercise this role
independently.
Secondly, these agencies can often have a conflict
of interest in relation to their oversight of the defendant's
safety arrangements (see for example the position in relation to
the Ladbroke Grove rail crash).
Thirdly, we question whether HSE inspectors are not
sufficiently well trained and resourced to deal with these issues;
in fact it is questionable whether they are maintaining a
sufficient capability to deal with their existing prosecution
responsibilities under the Health and Safety at Work Act: we have
recently dealt with several cases where inspectors have taken out
summonses which have subsequently had to be withdrawn because of
the offences charged against the defendants were based on a
misunderstanding of the wording of the legislation or
misapprehension of the defendant's duties.
Fourthly, experience of conducting such cases
should be focused on a single prosecution body to promote
consistency.
We recognise that some parts of certain regulatory
agencies such as the HSE have valuable experience in assessing the
adequacy of safety procedures and that there are individuals within
the organisation whose evidence may be essential to a prosecution.
However because, for example, the HSE can provide necessary
witnesses it does not follow that they should make critical
decisions about whether to prosecute such cases or conduct the
proceedings themselves. There is no obstacle to the Crown
Prosecution Service liaising with the HSE as they do under current
arrangements in place for investigating workplace deaths (see the
CPS/HSE Protocol for liaison for work-related deaths.).
3.6 Should Prosecuting Authorities Also Be Able
to Take Action Against Parent or Other Group Companies?
This proposal seems to us to be misconceived. Any
formulation of a corporate killing offence should be sufficient to
give rise to primary liability on a part of a parent or other group
company of the failure on its part causes a death. There is no case
for a special secondary offence.
3.7 Action Against Individual Officers and
Disqualification from Acting in Management
It should be possible for an individual officer to
be prosecuted for either reckless killing or killing by gross
negligence, but there is no case for a special category of
secondary offence related to corporate killing. We anticipate that
the government will face challenges under the Human Rights Act if
individuals are subjected to proceedings in relation to "management
failure" by companies which they have not been in a position to
defend in the principal proceedings; this is particularly so if, as
is suggested, it may be possible to move it straight to
disqualification proceedings without an offence being proved on the
part of the manager.
The use of existing powers of disqualification of
individuals from holding office as directors, in appropriately in
serious cases, are adequate. The proposal that a person may be
disqualified from acting in any management role to be too
broad. This could effectively deprive a person of the opportunity
to earn a living and could be disproportionate to the perceived
need to restrict such a person's involvement in a particular kind
of activity.
3.8 Should officers of undertakings be liable to
prosecution for a separate offence of substantially contributing to
the corporate offence?
Please see our previous comments. The suggestion
for this offence seems to go substantially further than the need to
reformulate the common law manslaughter offence, and fails to deal
with the difficulties that would be faced in identifying the
"substantial" contributions of individual offers within a
organisation. There is no reason to think that blameworthy
individuals cannot be dealt with adequately within the scope of the
reckless killing and killing by gross negligence offences.
3.9 Criminal proceedings continuing after formal
insolvency of a company
We doubt that this proposal has been considered in
sufficient detail. A company in insolvency is unlikely to have
resources with which to defend itself, and unless some provision is
made for its legal costs to be met there is a fundamental
difficulty with "equality of arms" for the purposes of the Human
Rights Act.
The suggestion that prosecuting authorities could
apply to freeze company assets pending the institution of criminal
proceedings appears to be flawed. It conflicts with the principle
that a defendant must be treated as innocent until proved guilty.
In any case, such action is bound to cause a company to cease
trading - to the detriment of its creditors and employees - and its
ability to defend any subsequent criminal proceedings would be
seriously impaired, or more likely removed altogether.
3.10 Liability of those in undertakings other
than companies and freezing assets of an undertaking
Please see our comments above - the same
considerations apply.
3.11 Transmission of disease and the new
offences
We do not offer a view on the transmission of
disease issues except to say that there is a need for the
legislation to be drafted and applied consistently and that the
creation of a separate category of tramissionable diseases is
likely to conflict with these goals. If any specific provision is
made it should be carefully limited to a narrow category to cases
of disease "transmissible disease" involving pathogens directly
from one person to another so that there is not confusion with
different situations (such as legionnaires disease from cooling
towers or food poisoning) which should remain subject to the main
offences.
CMS Cameron McKenna September
2000
Annex 1
Interpretation Problems with Clause 4 of
Draft Corporate Killing Bill
1. There is a discrepancy in the standard of care
between HSWA and the corporate killing offence:-
- Ensure safety 'so far as is reasonably
practicable' (HSWA);
- Management failure = failure to ensure
safety (clause 4);
The concept of tolerability of risk is absent from
clause 4.
2. There is potential for conduct which would not
be an offence under HSWA (because of the tolerability of the risk)
nevertheless constituting a "management failure". The
requirement for the conduct to "fall far below" what can
reasonably be expected does not adequately safeguard a defendant in
these circumstances.
3. The definition of "management failure"
is in any case defective: if "management failure" occurs
when a person's health and safety has not been ensured a
"management failure" must be found in every work related
death, since it can always be said that a hypothetical management
action or organisational step - if it had been taken - would have
ensured safety. An extreme example would be a total factory
closure. This is to confuse the standard of care with the
actus reus of the offence. Such an act or omission cannot logically
be described as a "failure", since a failure imports the notion of
a deficiency or oversight.
4. The Bill is internally inconsistent in its
approach to causation. For the purposes of reckless killing or
killing by gross negligence the offence is in relation to conduct
which "causes" death; in clause 4 it is sufficient for the
management failure to be "the cause or one of the causes"
of death. Consequently,:-
(a) it could reasonably be argued by individuals
prosecuted for reckless killing or killing by gross negligence that
it is implicit that in these offences that their conduct must be
the only or at least the main cause of the death.
(b) a company could apparently be convicted of
corporate killing in circumstances where its contribution to the
cause or factors in a death are minor in comparison to others, or
if there has been one isolated operational failure by the defendant
company against a backdrop of otherwise sound managerial practices.
Trial judges will be forced to give juries detailed directions as
to how to deal with the causation issue if the current wording is
adopted, which (after the inevitable appeals) will result in a
further complex body of case law in this area which the reform is
meant to avoid.
5. The element of the offence requiring management
failure to "constitute conduct falling far below what can
reasonably expected of a corporation" is unsatisfactory. A
jury might well consider where there has been a death that there
must have been a very serious management failure. There is nothing
in the wording of the clause 4 to prevent a jury from making such
an inference, even though it would be a non-sequiter.
6. The "falling far below" phrase gives
rise to numerous uncertainties: it is unclear how this vague
standard it to be applied, whether an objective or subjective test
is to be applied, and whether a standard is to be measured by
reference to companies of a similar nature, size, resources,
business sector or nationality. It begs the question whether a jury
may have regard to the fact a risk was not obvious to a company
before the death. Is consideration of evidence that would go to the
issues under clause 2 (3) of the Bill (what can "reasonably be
expected" in a case of killing by gross negligence) to be
permitted here? It is unclear how a company would be treated which
has adopted a poor management practice in good faith on
professional advice (internal or external). This contrasts starkly
with the provisions in relation to killing by gross carelessness
(see clause 2 (1)-(3)) which highlights the essential fault -
related elements that must apply to such an offence. As with the
interpretation of "management failure" without
clarification there is likely to be extensive judicial
interpretation in order before juries can be properly directed.
7. There is a real possibility that the provisions
of clause 4 as currently framed will ultimately have to be
interpreted by Courts by reference to the same principles which are
involved in relation to gross negligence manslaughter under the
common law: on the present wording, the position is likely to be
reached where directions are given to juries that what constitutes
"falling far below" is essentially the same as the House
of Lords ruled in Adomako . As has been noted on numerous
occasions, the problem with this test is that it is essentially
circular.