|
|
|
|
|
A new draft of the Corporate Manslaughter and Corporate Homicide Bill was published last month. This area remains so contentious that the Bill’s passage through Parliament is under threat even at this late stage. This article explores the need for a corporate killing offence and why the Government’s proposed solutions have caused such a fierce debate. |
|
There is little argument about the necessity for the Corporate Manslaughter and Corporate Homicide Bill. The current common law position has failed to exact justice in so many high-profile cases that there is a real public interest need for the issue to be tackled in legislation. As the law currently stands, a company can be prosecuted for the offence of “gross negligence manslaughter” of a person where (R v Adomako [1994] 3 All ER 79): » it owed a duty of care to that person; and » breach of that duty was the substantial cause of his death, or the breach was so grossly However, in order for a company to be convicted of a common law crime, it must be shown that a person or persons acting as the “directing mind of the company” had the requisite intent to commit the crime because the company, being an artificial “legal” person rather than an individual, cannot be said to “intend” to do anything (R v ICR Haulage Ltd [1994] 1 All ER 691). To apply this “identification principle” to the offence of gross negligence manslaughter, the prosecution must therefore establish that an individual or individuals embodying the company is/are guilty of manslaughter. Although successful prosecutions have been brought against individuals for manslaughter, against individuals and companies for breaches of health and safety law and companies have been sued in the civil courts for negligence, prosecutions against companies for gross negligence manslaughter fail or are not pursued because of the difficulty in applying the identification principle. For example, the court is due this week to set the level of Network Rail’s fine for the health and safety breaches of its predecessor, Railtrack, which contributed to the Paddington rail crash. Although the health and safety cases against Thames Trains and Railtrack revealed serious failings in management and practice (so much so that the £2million fine imposed on Thames Trains in 2004 set a record at the time), the CPS decided that there was not enough evidence to charge either company with gross negligence manslaughter. The main problem with such cases is that even where an individual at fault can be identified, it is extremely difficult to show that he was the “directing mind” of the company, especially in large companies with complex management structures. Therefore, in the cases where there is arguably the greatest public interest in seeing justice done, such as public transport disasters, companies are seen literally to get away with murder. The discussion of the Bill here is based on the version as amended by the House of Lords on report (HL Bill 40 06-07), which can be found on Parliament’s website: http://www.publications.parliament.uk/pa/pabills.htm#c The offence The Corporate Manslaughter and Corporate Homicide Bill proposes to introduce an offence of corporate manslaughter (called “corporate homicide” in Scotland) of which a company will be guilty if the way in which its activities are managed or organised (s 1): » causes a person’s death; and » amounts to a gross breach of a relevant duty of care owed by the company to the deceased. The offence will apply to companies, those public bodies and government departments listed in Schedule 1 to the Bill, police forces and other employers (including partnerships, trade unions and employers’ associations). However, the focus here is on companies. The Bill provides further explanation of the various components of the offence. » A company will only be able to be found guilty of the offence if the management or organisation of its activities by its senior management was a substantial element in the breach (s 2). The senior management comprises persons who play significant roles in making decisions about, or managing or organising, the whole or a substantial part of the company’s activities. This has become known as the “senior management failure” test. » A relevant duty of care means duties of care owed in negligence (s 3): - to employees and others providing services; - as an occupier of premises; - as the supplier of goods or services; - in carrying out construction or maintenance services; - in carrying out any other commercial activity; - in using or keeping any plant, vehicle or other item; and - to a person held in custody. » A breach will be “gross” if the conduct said to amount to the breach falls far below what could reasonably be expected of the company in the circumstances (s 2). This will be a question for the jury to decide, taking into account as part of its deliberation failures to adhere to health and safety legislation and guidance, as well as the attitudes, policies, systems or accepted practices within the company which were likely to have encouraged a failure to adhere to health and safety legislation (s 8). The main criticism levied against this formulation of the offence is that it is not all that different from the common law offence of gross negligence manslaughter. It still relies heavily on the actions or omissions of a person or persons at a high level in the company’s management, giving rise to concern that the senior management failure test will be as difficult to apply as the identification principle. Some very high thresholds will have to be met: » the senior management’s organisation/management of the company’s activities must be a substantial element in the gross breach of duty owed to the deceased; and » only persons with significant roles in managing, organising or making decisions relating to the whole or a significant part of the company’s activities form part of its senior management. The upshot of this is that it will still be very difficult, particularly where a case is brought against a large company, to satisfy the senior management failure test. In large companies, it is more likely that the board and senior management figures are removed from decisions affecting health and safety issues, and the junior managers or external contractors who do have this responsibility will not qualify as “senior management”. Even many senior figures in a company, such as directors with responsibility for a discrete area of the business, will not meet the requirement of playing a significant role in a significant part of the company’s activities. Of course, the test should not be so easy to satisfy that companies are unjustly convicted, but there is concern that the new test does not overcome the difficulties of the current one. There is also concern that the drafting of the offence and definitions will expose it to semantic argument in court, which could result in cases failing for “technical” reasons. For example, will the requirement for the offence to be committed in the “way in which [a company’s] activities are managed or organised” be wide enough to include the situation where a company’s shortcomings are not down to how the senior management actively conducts its affairs, but rather are a result of historical, deep-seated bad management? Not specific failures as such, but a culture of inadequacy. The punishment The offence will be punishable on indictment, rendering defendant companies liable to a fine (s 1). There is, of course, no other punishment that can be levied against a company. There is concern that this will not have the “deterrent” effect that imprisoning senior management figures would have. However, a charge of corporate manslaughter would have to be brought against the company, not the individuals involved, and other “corporate” offences which can result in an officer’s imprisonment apply to both companies and officers. Individuals will still be able to be prosecuted separately for the death where appropriate, but the Bill specifically precludes their prosecution for aiding, abetting, counselling or procuring corporate manslaughter (s 18). The purpose of the Bill is to hold companies accountable for deaths they have caused, so it is right that a company should be punished as a separate entity. The court will also be able to impose “remedial orders” on companies convicted of corporate manslaughter, to ensure that they remedy the breach, any other cause of the death and/or any other health and safety deficiency (s 9). Coupled with this practical remedy, the court will also be able to order that a company’s conviction and punishment is publicised (s 10). The effect of a successful prosecution on the reputation of the company and its management (even if they are not prosecuted individually) will provide a strong “deterrent factor”. Exceptions to the offence The Bill includes various exceptions. Broadly, these are: » duties of care owed by public authorities (s 3): - regarding public policy decisions; and - in respect of the exercise of a public function or statutory inspections other than towards their employees and service providers, as occupier and towards anyone held in custody; » duties of care owed by the MoD in respect of operations (s 4); » duties of care owed by public authorities in respect of policing and law enforcement operations (s 5); » duties of care owed by the fire services, NHS and ambulance services, rescue services and the armed forces in respect of the way in which they respond to emergencies other than giving or deciding on medical treatment (s 6); and » statutory duties of care owed by local and public authorities and local probation boards in respect of child-protection and probation functions (s 7). These exceptions are significant because they exclude the main circumstances in which public bodies and organisations are likely to cause death. The Government’s justification for this is that these bodies are adequately supervised, any deaths caused by them are investigated separately and that it would not be appropriate for public policy and resources to be discussed in a court of law. The House of Lords has amended the Bill to prevent deaths in custody from falling within the exceptions. The effect of the original exclusion of duties owed to persons in custody would have rendered the police force or prison service liable to a prosecution for corporate manslaughter if a person in custody died as a result of a breach of its duty as occupier (e.g. because the ceiling of the cell collapsed), but not for using an illegal method of restraint. On 5 February, the House of Lords voted overwhelmingly in favour of altering this particular exception to include any death in custody in the Bill. What next? The Bill received its third reading in the House of Lords at the end of February and the Lords have published their amendments. Its future is uncertain: the Government has threatened to drop the Bill altogether rather than accept the Lords’ proposed amendment on deaths in custody, so it will be interesting to see how the Commons responds to the return of the Bill at this final “ping pong” stage (where the Bill will pass between the two houses as amendments are debated). What is certain is that the current common law position has failed to address the public interest need to convict companies of corporate manslaughter in appropriate cases and that a replacement offence is needed. However, the Corporate Manslaughter and Corporate Homicide Bill’s progress through parliament has shown how difficult it is to formulate an effective offence which protects people but does not stifle business. |
|
THE CORPORATE MANSLAUGHTER BILL |