Consultation on Home Office proposals to reform the law of manslaughter

Briefing prepared by the Centre for Corporate Accountability (CCA)

For meeting organised by

Association of Personal Injury Lawyers and 
the Centre for Corporate Accountability

on 17 July 2000

at Congress House

info@corporateaccountability.org	This briefing  explains and analyses 
mail@apil.com	the Home Office proposals and gives the initial views of the CCA. 

INDEX
	
Manslaughter Committed by an Individual		
		Current law
-	gross negligence manslaughter				1.1
-	unlawful act manslaughter					1.2
		
Home Office Proposals 
-	killing by Gross Carelessness				1.4
-	Reckless killing						1.6
-	Third Offence						1.9

Directors  and the new homicide offences			2
-	Effect of new Offences						2.5
-	director duties							2.5
-	Extent of duties?
-	The nominated director and the Board
-	Directors of Parent Companies
-	investigation/prosecution of directors			2.13
		
“Workers” and the new homicide offences			2.24

	Manslaughter  Committed by a Company
		Current Law								3

		Home Office Proposals						3.3
- Wording of “corporate killing” offence			3.4

- Application to non-corporate bodies			3.10
- issues about name of offence				3.12

- Application to Parent Companies				3.14

- Application to Crown Bodies				3.18
	- what is a crown body					3.21
	- the current law						3.23
	- what is wrong with proposals				3.33

- Investigation/prosecution issues				3.35

- New director proposals					3.38
- disqualification proposal					3.39
- imprisonment ‘suggestion’				3.42

- Jurisdiction Issues						3.47
- summary							3.47
- home office proposal					3.49
- current legal position					3.53
- why jurisdiction should be extended			3.60

- Dealing with insolvent or dissolved companies		3.68
- Sentencing							3.71

1.	MANSLAUGHTER BY AN INDIVIDUAL
The crime of manslaughter is a ‘common’ law offence. That is to say it has developed over many years by judges interpreting and reinterpreting the law. The offences are not contained in statutes but in court rulings. At present, any human person can commit the offence of manslaughter if they cause death in either of two different ways:

1.1	Grossly Negligent conduct. This is the most common form of manslaughter, and the one which is of particular relevance to corporate activities. The test of gross negligence, is set out in the Court of Appeal case of Adomako

 ‘... the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such a breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the [person], was such that it could be judged criminal’

The questions are:
• did the person have a ‘duty of care’ towards the person who died;
• did he breach that duty;
• could that breach be characterised as “gross” neglect;

The High court has recently confirmed that this is a purely ‘objective’ test - that is to say that it is not necessary to find evidence that the person in question was aware of any risk of injury or death. It is only necessary to show that the person’s conduct was a “gross” breach

1.2	• Unlawful Act Manslaughter:  A person can be found guilty of this kind of manslaughter if:

“he intends an unlawful [and dangerous act] and one likely to do harm to the person and death results which was neither forseen nor intended. It is the accident of death resulting which makes him guilty of manslaughter as opposed to some lesser offence.” 

So for example, if X slaps Y in the face, and Y unexpectantly loses her balance, falls to the ground, and dies as a result of a brain injury resulting from her head hitting the pavement, Y could be found guilty of manslaughter.

1.3	Proposed Home Office Reforms
The Home Office proposes that there should be three new statutory offences in a new “Homicide Act”.  The two main offences would be:

1.4	Killing by Gross Carelessness
(1) A person who by his conduct causes the death of another is guilty of killing by gross carelessness, if
(a)	   a risk that his conduct will cause death or serious injury would be 
obvious to a reasonable person in his position;
(b)	   he is capable of appreciating the risk at the material time; and
(c)	   either
(i)	      his conduct falls far below what can reasonably be expected of 
him in the circumstances; or
(ii)	he intends by his conduct to cause some injury or is aware of, and unreasonably takes, the risk that it may do so
(2) There shall be attributed to the person referred to in subsection (1) (a) above knowledge of any relevant facts which the accused is shown to have at the material time; and any skill or experiences professed by him
(3) in determining for the purposes of subsection (1)(C)(i) above what can reasonably be expected of the accused regard shall be had to the circumstances of which he can be expected to be  aware, to any circumstances shown to be within his knowledge and to any other matter relevant for assessing his conduct at the material time

1.5	The offence of “Killing by Gross Carelessness” allows a person to be guilty in three ways. Once it has been determined that the person’s conduct created an “obvious” risk of death or serious injury, it is then necessary to show either:
• 	the person’s conduct “fell far below” expectation. This wording replaces, but has the same sort of meaning, as the “gross” negligence in the Adomako test. The wording itself has been modelled on how the courts have interpreted the concept of “dangerousness” in relation to the offence of “death by dangerous driving”. 
• 	the person intended to cause some injury
• 	the person is aware that some injury may result, but unreasonably takes the risk.

1.6	Reckless Killing
A person who by his conduct causes the death of another is guilty of reckless killing if-
(i)	   he is aware of a risk that his conduct will cause death or serious 
injury; and
(ii)	  it is unreasonable for him to take that risk having regard to the  
circumstances as knows or believes them to be.

1.7	The offence of reckless killing is different from “killing by gross carelessness” in that it is necessary to show that the person was “aware” that his conduct created a risk or serious injury or death. The requirement for evidence of “awareness” makes this offence more serious than the “gross carelessness” offence. 

1.8	However, once awareness of a risk of serious injury or death has been identified, it is not necessary that the person’s conduct “fell far below” what could be reasonably expected. Only that it was “unreasonable” for the person to take the risk. It should therefore be noted that in some ways this offence is easier to prove than the offence of gross carelessness, once evidence of awareness is discovered.

1.9	Death resulting from intentional or reckless causing of minor injury
The Government has not provided an exact form of wording for this offence which it is proposed would replace “unlawful act” manslaughter. It would make it an offence for a person to have caused death, even though that person only intended minor injury or was reckless whether or not his conduct would result in minor injury.

1.10	In proposing this offence, the Home Office went against the recommendation of the Law Commission which stated that in its view it would be wrong to prosecute a person who has caused death, but who has neither been seriously negligent or has not been aware of risk of serious injury or death. The Home Office however stated in its report that: “anyone who embarks on a course of illegal violence has to accept the consequences of his act, even if the final consequences are unforeseeable.”

2	  CORPORATE ACTIVITIES  AND THE NEW INDIVIDUAL  
  MANSLAUGHTER OFFENCES
In the context of deaths resulting from “corporate” activities, these offences could be committed by any individual within a company or organisation. They can be committed by both workers and by company directors – and exactly the same legal tests will apply. A number of points need to be considered.

2.1	The Culpability of Company Directors for Manslaughter
The number of directors (or indeed senior company officers) who have been prosecuted in relation to deaths resulting from corporate activities is very low. In addition, the only directors who have been prosecuted – the trial of the directors of P&O European Ferries being the exception - have been from relatively small companies.

Why is this the case? It is likely to be the result of a combination of factors:
• inadequate investigations by the police/HSE
• lack of political/legal will on the Crown Prosecution Service
• complex management structures in large companies
• diffusion of responsibility for safety over many individuals within the company
• failure of the law to impose safety duties upon company directors

2.2	Effect of New Offences: The Home Office proposals for the new offences outlined above do not specifically engage with any of the above points. However, arguably there are two general aspects of these proposals that will make prosecutions of directors more likely.
• 	the clarification of the law will in itself make it easier to prosecute directors for “manslaughter” offences. If this is the case, of course, this greater ease would not just apply to directors.
•  the new offence of “corporate killing” (discussed in section 3) will bring with it a new concentration on the conduct of company directors. The argument would be that since the new offence will make easier to prosecute companies for a homicide offence, corporate conduct will be under greater investigative scrutiny than it is now, which will inevitably result in greater scrutiny of the role of senior management and the directors of a company. This argument would be strengthened if the Home Office enacted, alongside the new offence of corporate killing (and the new individual homicide offences) allow a director/manager to be prosecuted when he “significantly contributed” to the offence by the company. Such an  offence, under consideration by the Home Office (see para 3.38) would again result in greater focus on the conduct of the company directors.

2.3	There is however a counter argument that the offence of corporate killing could result in more focus upon the company and less upon potentially culpable company directors. The argument is that the investigating and prosecuting authorities will tend to prosecute the easier offence – that against the company – rather than be willing to put the resources into investigating and prosecuting directors. The current practice of the Health and Safety Executive shows how this can easily happen; although it can prosecute both directors and companies, virtually all prosecutions it takes is against companies.

2.4	However, the key point here is that the construction of the new individual homicide  offences themselves are basically neutral and do not remove the obstacles that currently exist in relation to the prosecution of directors for a “manslaughter” offence.

2.5	Directors Duties: There is one reform, recently proposed by another Government department – the Department of Environment, Transport and the Regions – which could have an impact upon the prosecution of company directors where the circumstances justify it.

2.6	Under the current law of manslaughter, it is necessary to prove that the person had a “duty of care” towards the person who died. This can be a particularly pertinent issue when the conduct which is alleged to have caused the death was an “omission” or a “failure to act”. Although it can be clear that the person’s failure to act was a cause of the death , and indeed that this failure was a very serious failure, it may not be possible to prosecute that person unless it can be shown that the person had a “duty” to act. 

2.7	This question will often be raised in the context of the conduct of directors. Whilst, it may be the case that directors actually do something that positively cause the deaths, in more situations than not, it is their failure to act which is the cause of the death. The law is not helpful on this issue. Legislation does not imposes duties upon directors in relation to ensuring the safety of either their workers or the public affected by their activities. The law only imposes safety duties upon “employers”, “manufacturers” etc. which are usually companies. 

2.8	This problem was particularly highlighted in a ruling by a Crown court judge in the prosecution of Great Western Trains in relation to the Southall train disaster. He stated that: “The fact that an individual is a director of a company does not of itself give rise to a duty of care on that person’s part to a third party who is injured by the company’s activity”. 

2.9	This may not be so much of a problem in small companies where either the director is aware of risks or where the director is personally involved in safety. It appears (though it is not clear), in such circumstances, that the courts imply that directors do have duties to act to prevent death or serious injury. However, in large companies, which organise themselves in such a way that directors are entirely ignorant of safety considerations or have no direct involvement in safety, the lack of concrete duties allows directors to escape accountability.

2.10	The Home Office proposals do not deal with this question. Whilst, it is no longer necessary, as such, to prove a “duty of care” – a requirement explicit in the wording of the current Adomako test – in relation to any omission which is alleged to be the “conduct that causes the death”, it is still necessary to show that the person had a duty to act. And the Home Office proposals do not mention the question of directors duties. 

2.11	However, the DETR have proposed in a recent strategy document that legal duties relating to safety should be imposed upon a company director nominated by the Board. The DETR states:
“• The Health and Safety Commission will develop a code of practice on Directors’ responsibilities for health and safety, in conjunction with stakeholders. It is intended that the code of practice will, in particular, stipulate that organisations should appoint an individual Director for health and safety, or responsible person of similar status (for example in organisations where there is no board of Directors).
• The Health and Safety Commission will also advise Ministers on how the law would need to be changed to make these responsibilities statutory so that Directors and responsible persons of similar status are clear about what is expected of them in their management of health and safety. It is the intention of Ministers, when Parliamentary time allows, to introduce legislation on these responsibilities.”

2.12	There are a number of key issues on this that the Government needs to clarify to determine whether this approach will work:
• 	The extent of the duties: The duties should at the very least involve responsibility for the “establishment, implementation and monitoring” of a company safety policy which amongst other things must involve a system by which information about safety failures reaches the board of directors. 

• 	The Board and the Nominated Director: The government is not proposing that all company directors should have legal duties relating to safety; only that a nominated company director has such duties. This is different from the approach that the law takes in relation to financial duties which are imposed upon all directors. There however may well be merit in imposing the duties upon one director, as it clarifies where prime responsibility sits. However, there is a danger that companies will appoint a “scape-goat” director, that is to say a director with all the responsibilities but little power who will simply “take the wrap” if something seriously goes wrong.

In order to avoid this possibility it is necessary to ensure that there are proper and formal linkages between the nominated director and the rest of the board. This is not the place to discuss this question in detail but there would need to be some sort of duty upon the nominated director to inform the board about safety within the company and a provision so that where the Board rejects safety advice from the nominated director, responsibility then lies with rest of the Board. It is essential that the rest of the Board is not allowed to simply delegate safety responsibility to the nominated director and forget about safety from then on.

• Directors of Parent Companies: The duties upon directors should not just consist of issues relating to their own company, but also their subsidiary companies (where this is appropriate). Whilst the duties of directors of parent companies, towards the safety of their subsidiaries should not be as rigorous as those imposed upon the directors of the subsidiaries themselves, it is important that parent company directors have some clear responsibilities for the monitoring of the safety of their companies.

2.13	Investigation/Prosecution of Directors: One concern about the Home Office proposals relates to what agency will be involved in the investigation and prosecution of directors or senior company officers for these individual offences.

2.14	The Home Office is proposing that the Health and Safety Executive and other regulatory authorities are given the power to investigate the proposed new offence of corporate killing and also to prosecute those companies it alleges has committed those offences. This is also discussed below in relation to the offence of corporate killing. However, this proposal does have implications in relation to directors. This is because the Home Office seems to be proposing that the HSE (and other authorities) would also be able to investigate/prosecute directors in relation to these individual offences, as well as the company for the offence of “corporate killing”.

2.15	The Home Office Document states that, “where a major and essential element of the circumstances giving rise to an individual offence of manslaughter arises from the context of the work being done, the Government considers that there is a case for investigation and prosecution of individuals by the health and safety authorities.”

2.16	There is no justification for the HSE to be given the responsibility for the investigation/prosecution of these offences. Since 1998, the current investigative practice is set out in the “Protocol of Liaison on Work Related Deaths”. This states that a:
 “police detective of supervisory rank should attend the scene of a work-related death, or where there is a strong likelihood of death resulting from an incident arising out of or in connection with work, and should:

(a) "make an initial assessment about whether the circumstances might justify a charge of manslaughter … in which case the Police will commence their investigation."

2.17	It goes on to say that where "the initial assessment indicates that there will be no police investigation", the case is handed over to the HSE. The protocol then goes on to state: “Where, during the HSE investigation, evidence indicates an offence of manslaughter may have been committed, the HSE will refer the matter to the police without delay"

2.18	What happens in effect is that the police, with the assistance of the Health and Safety Executive, will make an initial assessment of whether a fuller manslaughter inquiry should take place. If it is considered that there are  grounds for a more fuller investigation, then the police, assisted by the Health and Safety Executive, will lead a criminal investigation.

2.19	It should be noted that the involvement of the police in the investigation of workplace deaths only came about as the result of years of campaigning by the trade union movement and hazard organisations. Prior to this, the police had no role unless the HSE referred a case to them which happened in relatively few situations.

2.20	This is not to say that the protocol is perfect. It does need to be tightened up. There is no clear understanding on the part of police forces what comprises an “initial assessment” by them into whether ”the circumstances justify a charge of manslaughter”.  Many police forces perform only a rather cursory examination of the evidence which does not place them in any situation to determine whether the “circumstances justify a charge of manslaughter”. The initial investigation by the police – which should be assisted by the Health and Safety Executive - should be much more thorough and rigorous.

2.21	However, the Home Office is effectively proposing that this protocol be abandoned and that there be a return to the situation prior to the protocol where all the investigation was undertaken by the HSE – with the difference that now the HSE will undertake the homicide investigations themselves instead of the police (though it is proposed that they can if they so wish refer cases to the police). 

2.22	The reasons why the HSE should not replace the police in the investigation of directors or other senior company officers for homicide offences is as follows:
• 	the police is the body which investigates serious crimes of violence.  They are professional crime investigators with the resources and experience to undertake homicide investigations with the appropriate level of rigour. When the police do investigate the conduct of company directors they tend to be much more thorough than the regulatory agencies.
• 	it is inappropriate for a regulatory agency to be involved in the investigation of homicide offences. They do not have the experience or resources to undertake these investigations.
• 	it is inappropriate if only homicide offences involving company directors  are to be investigated by non-police bodies. It will tend to “de-criminalise” the conduct which is the subject of these offences. It will have the effect of decreasing the symbolism that attaches to these criminal investigations and the prosecutions that follow.
• 	the HSE has a very poor record in investigating the conduct of directors or managers for health and safety offences. Almost all the prosecutions it takes are against companies; only a handful are against directors. Between 1996 to 1998, it did not prosecute one director or manager in relation to any of the 500 deaths or 47,000 major injuries that it investigated.

2.23	In relation to prosecution, the Home Office is proposing that the HSE and other regulatory authority – rather than the Crown Prosecution Service -  undertakes the prosecution of directors or managers for homicide offences. Again this is totally inappropriate function for regulatory agencies. 
• 	The Crown Prosecution Service is the body that is responsible for the prosecution of all crimes of violence. Regulatory agencies should not be involved in this role;
• 	The Health and Safety Commission does not use the Crown Prosecution Service’s Code of Crown Prosecutors. It has for years used a policy that is so broad and ambiguous that it allows it to prosecute in every case where there is sufficient evidence or in no cases at all. Effectively the Health and Safety Commission has a “resource” based rather than an “evidence” based policy; the HSE will prosecute, when it can afford to do so. No prosecution body with such a history should be given the responsibility for the prosecution of directors for homicide offences.

2.24	Workers and Homicide Offences
There is a serious concern that the law of manslaughter has in the past inappropriately resulted in the prosecution of a worker within a company who is the “immediate cause actor” of a death. It is seen as “inappropriate” since although the conduct of the particular workers may have been at fault in some way, the fatal consequence of the workers would not have resulted had:
• there not been serious safety failures on the part of management of the company, or 
• undue responsibility were not placed on the person’s shoulders. 

2.25	Take, for example, the Assistant Bosun who failed to close the bow doors that allowed the Herald of Free Enterprise to sail with her doors open. Whilst it was clearly his job to close the bow doors, the company was organised in such a way so that the whole safety of the ferry was dependent on him ensuring the doors were closed. There was no fail safe system despite the crucial nature of the operation Had there been indicator lights on the bridge, the safety of the ship would not have been totally reliant upon there never being a mistake? The question is whether it is right that a person in this position should be prosecuted?

2.26	The way companies operate can often mean that it is conduct on the part of an ordinary “shop floor” worker which will be the immediate cause of a death. As a result it can be easy for the investigating authorities to subject undue attention upon this worker without looking at the conduct on those at the top of a company that have created the context in which the death took place. 

2.27	 This is a delicate issue. It is not being suggested that workers who are clearly culpable should not be prosecuted. However, at present the law does not take into account the hierarchical nature of companies so that decisions made at the top of a company will have a direct impact upon the implications of any actions or failures that a workers makes. 

2.28	The Home Office proposals do not directly engage with this issue. However, it could be argued that the new offence of corporate killing, along with the DETR’s commitment to impose legal duties upon directors could improve the situation. It will mean that focus is more likely to be directed at the management of the company. Two further changes could also be proposed:
	• ammending the code of Crown Prosecutors so that the CPS must take into account these issues before deciding to prosecute a worker
• creating a new defence for a “worker”. The problem with this would be how would you define “worker” and whether such a legal defence could be justified. 

3	MANSLAUGHTER BY A COMPANY
At present the only organisation that can be prosecuted for manslaughter is one  that has been “incorporated” – that is to say a “company”. A company has a legal identity distinct and separate from the individuals which comprise it. In order to determine whether a company has committed an offence of manslaughter – or indeed any other offence requiring evidence of intention, recklessness or gross negligence – it is necessary to apply the “identification” test. This means that a company is guilty of an offence of manslaughter when a person, considered to be a “controlling mind” of the company commits the offence himself or herself. The guilt of the individual immediately becomes the guilt of the company; there is no separate test of culpability beyond the issue of individual guilt.

3.1		This test has been criticised on a number of grounds, but the main concern is that it allows companies – whose management practices are clearly to blame for the death – to escape prosecution for manslaughter, simply because it is not possible to pinpoint responsibility upon an individual director or manager [see para 2.5]. One way around this is to remove the obstacles from prosecuting directors or managers – by for instance, imposing safety duties upon directors. However, this does not deal with deaths which are not the result of an individual failure at the top of a company sufficiently serious to justify a manslaughter prosecution, but the result of a combination of failures at different levels within the company’s management – some at board room level, some at middle management level - which together could be judged as a serious corporate failure.

3.2	The Home Office had two basic options available to it. Create a new principle of liability replacing the identification test that required consideration of the systems of management of the company or create a new separate offence  with a new principle of liability within it. The Home Office – following the Law Commission - opted for the second option.

3.3	The Home Office Proposals
	The Home Office is proposing that in the future companies can be convicted through two separate routes:
• 	through the existing  identification doctrine. So companies will be able to be convicted of all three individual homicide offences – death by gross carelessness, reckless killing and the third unnamed offence - if a  senior manager or director (a ‘controlling mind’)  is convicted. 
• through a new offence of corporate killing:
	
3.4	Consideration of the Wording of the Offence of Corporate Killing
	This offence is intended to reflect in part the core test of the individual offence of “killing by gross carelessness” – i.e. that conduct should fall “far below what can reasonably be expected”. However, instead of needing to consider “individual” failure, the offence is proved through evidence of “management” failure.

3.5	There are however differences between the two offences. There is:
• 	no need to prove that the company is “capable” of appreciating the risk;
• 	no need to prove that the risk of death or serious injury would be obvious to reasonable “company” or “management” 
• 	no alternative test of culpability which would allow a company to be prosecuted if it “intended to cause some injury or is aware of, and unreasonably takes, the risk that it may do so.
• no criteria to assist the jury in determining “what can reasonably be expected” of the company. i.e. whether regard should be had to the circumstances of which the company can be expected to be aware or to circumstances that should be in the company’s knowledge etc.
	
3.6	Consideration is now given to each of these issues in turn
	Capacity: this term is used to refer to “mental” capacity in relation for example to a person of low intelligence. This does not easily apply to “companies” and so it is right that this term is avoided.

3.7	Obvious: the Law Commission argued that it was not possible to determine whether a “risk” should have been “obvious” to a company, since a company was a “metaphysical entity”. However there could be the following provisions added to the offence to the following effect:

(1) A corporation is guilty of corporate killing if:
3	a management failure by the corporation is the cause or one of the causes of a person's death;
4	it should have been obvious to the company that such a failure created a risk of death or serious injury taking place
5	in determining whether a risk should have been obvious to a company consideration should be given to whether the risk should have been obvious to any person within the  company who had or should have had some level of responsibility for the safe management of the company.
6	……

	The drawback of adding such an additional requirement (or something similar) would be that it would make it more difficult and complex to prove the offence. The advantage would be that it parallels the individual offence more accurately and it could not be accused of being too “easy” an offence to prove.

3.8	Alternative test: should there be a test alternative to the “falling far below test” which would allow a company to be prosecuted if (i) the risk of death and serious injury should have been obvious to the company, and (ii) the company was actually aware of a risk of some injury and unreasonably takes the risk? The problem here is that it would not be easy to create such a test of determining a company’s awareness, without drastically changing the format of the proposed offence. It is therefore not being proposed. 

3.9	Criteria: In the individual “gross carelessness” offence there is a section that states

“In determining … what can reasonably be expected of the accused regard shall be had to the circumstances of which he can be expected to be  aware, to any circumstances shown to be within his knowledge and to any other matter relevant for assessing his conduct at the material time.”

	Should there not be a similar section assisting the jury about when a management failure “constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstances.”? As the offence reads at the moment, there is a problem about what “circumstances” are being referred. For example, if the company has big financial problems would that mean that, it would be reasonable for that company “in the circumstances” not to act in a way expected of a company with high profit margins. At the moment it appears that the offence could allow a company  to argue that this should be taken into account, yet surely the principle must be that financial matters should be no excuse for a company. 

3.10	Potential Defendents
	The Home Office proposes that the offence should extend beyond corporations (other than corporations sole)  to "undertakings". This is a term used in the Health and Safety at Work Act 1974, and defined in the 1960 Local Employment Act where it is defined as “any trade or business or other activity providing employment.” This would allow the offence to extend to Hospital Trusts, partnerships (like law firms), and schools, as well as to one or two person businesses. As the Home Office states “in effect the offence of corporate killing could apply to all employing organisations.” This is a proposal beyond what the Law Commission suggested.

3.11	The main argument the Home Office gives for this suggestion is that it does not "wish to create artificial barriers between incorporated and non-incorporated bodies, nor would we wish to see enterprises deterred from incorporation which might be the case if the offence only applies to corporations". This seems a positive proposal: it would certainly be an anomaly if, for example, Hospital Trusts or other unincorporated businesses could not be prosecuted for this offence. It therefore seems a positive proposal on the part of the government.

3.12	The Name of the Offence: The name of an offence is significant since it symbolises the stigma and culpability attached to it. It is proposed that these offences are contained in a statute called the Homicide Act so that all the offences within the Act would generically be called “homicide” offences. The offence of “manslaughter” will therefore no longer exist.

3.13	Is “corporate killing” an appropriate name for this offence? It arguably does not have quite have the punch of “corporate manslaughter”. One option could be to propose calling it “corporate homicide”.  However, extending the organisations beyond “corporations” to which the offence would apply, may require that the name of the offence be changed. “Organisational Homicide” does not quite have the ring of “corporate homicide”. One way around this would be to simply define “corporation” to include, for this offence, the definition given to “undertaking”. 

	i.e. “for this offence, a corporation includes all incorporated bodies and any trade or business or other activity providing employment”

3.14	Application to Parent Companies
The Government is proposing that action should be able to be taken against a parent company, where management failures on the part of the parent company itself were a cause of the death in relation to activities of its subsidiary companies. The Government gives two reasons for this. It argues that:
	• this is necessary to avoid holding companies attempting “to evade possible liability on a charge of corporate killing through the establishment of subsidiary companies which most readily give rise to charges of corporate killing.”
	• it is concerned that a subsidiary company within a large group of companies might have “insufficient assets to pay a large fine, and that in such cases liability could not be transferred to a its parent company.”

3.15	The possible prosecution of parent companies for “corporate killing” is important. However, the problem with the proposal is that it is not clear what are the duties parent companies have in relation to the activities of its subsidiary companies. The only legislative provision that does exist is section 3 of the Health and Safety at Work Act 1974.  This states that:
	“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as it reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.” 

3.16	It is not at all clear from this what are the legal obligations, in relation to safety, of a parent company towards its subsidiary. If it decides to have a hands off policy, it is unclear, for example, whether this is in breach of health and safety law. It almost certainly isn’t. Therefore there needs to be clarification of what exactly are the safety duties of a parent company towards its subsidiary companies. Otherwise the Home Office proposal will have no effect.

3.17	In addition, whilst the government’s intentions are positive, the current proposals on parent will do not solve the two problems which the Home Office outlined:
	• holding companies will still be able to establish separate subsidiary companies – and hive off to them any of its hazardous activities - and in this manner evade any prosecution of corporate killing 
	• parent companies would still be able to move money around its companies so as to avoid having to pay fines.

	More thought needs to be given to how these problems can be solved

3.18	Application To Crown Bodies 
The Home Office argues that Crown Bodies – that is government departments and other bodies closely linked to the government - should not be able to be prosecuted for the proposed new offence of ‘corporate killing’. 

3.19	It does however argue that crown bodies “should be held accountable where death occurs as a result of a management failure.” The Home Office therefore proposes “to adopt an approach similar in effect to that taken in the Food Safety Act 1990. That Act applies the same standards to the Crown, thus requiring Crown Bodies to allow access to relevant enforcement agencies, but rather than applying criminal liability provides for the courts to make a deceleration of non-compliance with statutory requirements, which requires immediate action on the part of the Crown Body to rectify the shortcoming identified.”

3.20	If the Food Safety Act 1990 route was applied, this in effect would mean that no Crown Body could be prosecuted for the offence of “corporate killing’; instead the High court could declare that that the Government body in question had acted ‘unlawfully’ and require it to remedy the situation.

3.21	What is a Crown Body? There is no clear definition of what is a Crown body, though Government Departments are unarguably crown bodies and it is sometimes clear from legislation whether or not a particular organisation should be treated as acting on behalf of the Crown. 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”, and 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”.

3.22	However the Building Societies Act 1986 states that the Building Societies Commission performs it functions “on behalf of the Crown.” The general trend is for new bodies established by the government not to be considered crown bodies. In relation to other public bodies – where the legislation does not clarify the question of whether or not the body in question is or is not an agent of the Crown - the Home Office document states that:

“The question of whether an organisation can claim crown immunity depends upon the degree of control which the Crown through its ministers, can exercise over in in the performance of its duties. The fact that a Minister of the Crown appoints the members of such a body, is entitled to require them to give him information and is entitled to give them direction of a general nature does not make the corporation his agent. The inference that a corporation acts on behalf of the Crown will be more readily drawn where its functions are not commercial but are connected with matters, such as the defence of the realm, which are essentially the province of Government.” 

Police forces are not, though prisons are, crown bodies. 

3.23	The Current Law: There are two types of criminal offences to be considered:
•  common law offences, like murder or manslaughter.
•  those contained in legislative statutes, like the offences contained in the Offences against the Persons Act 1861 or the HASAW Act 1974;

3.24	Common Law Offences: In relation to common law offences, there is some uncertainty whether or not “crown bodies” can be prosecuted for an offence like manslaughter. It is clear that individual ministers or individual civil servants working for the crown can be prosecuted as individuals  for manslaughter even when the crime was “committed by them in their official capacity”. 

3.25	The conventional view is that that crown bodies can not be prosecuted for common law offences. However, this has been brought into question by the 1993  case of M v Home Office . This involved proceedings for contempt of court against the Home Office Minister as well as the Home Office itself. Lord Woolf stated in the House of Lords: 

	“The Court of Appeal were of the opinion that a finding of contempt could not be made against the Crown, a government department or a minister of the Crown in his official capacity. Although it is to be expected that it will be rare indeed that the circumstances will exist in which such a finding would be justified, I do not believe there is any impediment to a court making such a finding when it is appropriate to do so, not against the Crown directly, but against a government department or a minister of the crown in his official capacity.”

3.26	The case itself involved civil, not criminal contempt – and it would therefore not appear relevant to the prosecution of crown bodies for common law offences.  However in the original court judgement, it was stated that: "It is clearly established law, first that there now exists no real distinction between civil and criminal contempt, second that a civil contempt of court is a criminal offence and, third that a civil contempt must be proved to a criminal standard of proof. .... In short contempt is drastic remedy which must be proved beyond reasonable doubt"

3.27	This part of the High court ruling was never challenged or overruled. If (a) there is no real distinction between civil and criminal contempt and  (b) perhaps most importantly, a civil contempt, is in fact a criminal offence, then the fact that Lord Woolf in the House of Lords states that a department of Government could be in contempt of court, indicates that a crown body can be convicted of a "common law" offence. If this is the case, then there is no legal impediment to why, under present law, a crown body (if incorporated) could not be prosecuted for manslaughter through the prosecution of a “controlling mind”.

3.28	Statutory Offences: As the law stands a crown body is not bound by the provisions of a statute – which would include those provisions creating criminal offences - unless the statute in question itself explicitly (or by ‘necessary implication’) states otherwise. The Offences against the Persons Act 1861 does not contain any provision relating to the Crown so the assumption is that these offences do not apply to Crown bodies (though of course they do apply to individuals including ministers). 

3.29	Health and Safety at Work Act 1974 does however state explicitly that the sections of the Act that placed duties upon employers etc. “bind the crown” in the same way as other organisation but that those sections of the Act that allow for notices to be imposed or for employers to be prosecuted, do not bind the Crown. So Crown Bodies can not be prosecuted for offences under the Health and Safety law, though they under a duty to abide by the law. Again individual ministers/civil servants can be prosecuted as individuals for health and safety offences.

3.30	In relation to statutory offences, the general principle therefore is that the Crown can avoid culpability for an offence contained in a statute if the statute does not explicitly state that the sections in the statute which create the offence apply to the Crown. This is not a principle of “crown immunity” – as it is sometimes referred – but rather a rebuttable presumption that statutory offences do not apply to the crown. It is simply upto parliament as to whether or not the Crown can be prosecuted.

3.31	In recent years, Parliament has not only increasingly “rebutted” the presumption that statutory duties should not apply to Crown bodies (as in the HASAW Act 1974) but also the presumption that Crown bodies should not be held in some way accountable for certain conduct considered to be criminal. It has however not gone all the way to proposing that crown bodies could be actually prosecuted for offences and be held criminally culpable. What Parliament has done is enact statutory provisions – in for example the Food Safety Act 1990 or the Environment Act 1995 - that allow the regulatory agency in question to take some action against crown bodies that appear to have committed regulatory offences. So for example, section 115 of the Environment Protection Act 1995 states that:

Subject to the provision of this section, this Act shall bind the Crown . ….
(3) No contravention by the Crown of any provision made by or under this Act shall make the Crown criminally liable; but the High court of in Scotland the Court of Session may, on the application of the [Environment] Agency or, in Scotland, SEPA declare unlawful any act or omission of the Crown which constitutes such a contravention.”

3.32	This section goes further than the provisions contained in the Health and Safety at Work Act (which precludes any action if a crown body commits an offence), but still does not actually allow a prosecution to take place, but only a ruling in a civil court. The provision explicitly states that any declaration by the civil court would not “make the crown criminally liable.”

3.33	Beyond the Food Safety Act? Is the Food Safety Act route appropriate. There are many reasons why it is not:
• It is arguable, at the moment, that incorporated crown bodies can, in principle, be prosecuted for manslaughter – a common law offence. If the proposed Homicide Bill becomes law without stating that these offences do bind the crown, then all crown bodies will become immune from prosecution for all of these offences. So whilst at present, arguably, incorporated crown bodies could be prosecuted for manslaughter, the Home Office is actually trying to stop this possibility in the future.
• Since incorporated crown bodies can arguably be prosecuted for manslaughter and other common law offences at present, there can be no objection in principle to allowing crown bodies to be prosecuted for the offence of corporate killing (and indeed the other offences contained in the statute)
• An individual minister or senior civil servant can be prosecuted for manslaughter; why then not a government department?
•  Indeed, it would be wrong to allow an organisation to escape prosecution and conviction for a homicide offence simply because it is deemed to be a Crown body – whether because its originating statute says that it was such a body, or indeed that it is seen to be closely controlled by a minister. Whether an organisation is controlled by a minister or not should be of no relevance to whether the organisation should or should not be prosecuted.
•  Local Authorities – all of which are incorporated – can under current law be prosecuted for manslaughter. They will continue to be able to be prosecuted for the new offence of corporate killing – since they are not considered to be crown bodies. Why should local government bodies be able to be prosecuted for this offence whilst similar central government bodies will not be able to prosecuted? 
•  The Home Office is proposing that unincorporated bodies should in future be prosecuted for the new offence. Since the government is broadening the application of the offence beyond corporations, it is appropriate that unincorporated government bodies should also be able to be prosecuted.
•  Homicide offences should not be treated in the same way as regulatory offences. As noted above, the sections in the Environment Protection Act 1995 and the Food Safety Act 1990 that create offences do apply to the crown but cannot result in a prosecution. A similar situation is being proposed for this new Homicide Bill. These two statutes contain offences which are no where near as serious as the offence of corporate killing: they are regulatory offences in which the crime committed is unconnected with any injury that might have been caused, and where a finding of simple negligence is sufficient to allow for a conviction. There is no necessity to prove a serious “management failure” that caused a death. 
Whatever justification or rationale the Government may have for allowing Crown bodies to escape prosecution for these regulatory offences, simply cannot serve to justify allowing Crown bodies to escape prosecution for a “homicide” offence. 
• Moreover, some government bodies have even stated that crown bodies should be able to be prosecuted for these regulatory offences themselves. In the 1970’s, the Health and Safety Commission supported the idea that crown bodies should be “prosecuted” in relation to health and safety offence. In 1978, the Commission stated: 
 “Crown bodies have the same obligations under the HSW Act as other employers but, unlike other employers, they can neither be issue with statutory improvement or prohibition notices, nor be prosecuted … The Chairman of the Commission has frequently drawn attention to our view that it is not right that Crown employers should be in a privileged position. From evidence given to us by the [Health and Safety] Executive we have concluded that the attitude of Crown employers to health and safety is in general no better and no worse than other employers and the same provisions relating to enforcement seem to be necessary if the legislation is to be effective in Crown establishment.”
• The Government has recently suggested that it may reform the HASAW Act 1974 to allow prosecution against the Crown. In a recent document the Government have stated that “the Health and Safety Commission will advise Ministers on the range of options for introducing statutory health and safety enforcement against Crown bodies.” Whilst the document does go onto state the “the Food safety Act 1990 offers a possible model” – one in which prosecution is not allowed – the government appears to be considering  going further than the Food Safety Act. The very fact that prosecution of Crown bodies is being considered in relation to health and safety offences, indicates how inappropriate it would be to use the Food Safety Act formula for the Homicide Bill.
• Ensuring that Crown Bodies could be prosecuted for this offence would have important public safety impacts. It would ensure that organisations – which are crown bodies – give appropriate priority to the safety of the public. Management of crown bodies have as great an impact upon the safety of the public as do other organisations and it is important that they are deterred from placing the public at unnecessary risk. The stigma of prosecution would be an important deterrent.

3.34	There is a question about what would be the purpose of prosecuting a government department for homicide – since it might appear pointless fining them. A good answer to that is contained in House of Lords judgement  of M v Home Office, where Lord Woolf stated that in relation to contempt proceedings, that “the very fact of making such a finding would vindicate the requirements of Justice.” 

3.35	Investigation and Prosecution
The Home Office is proposing that in addition to the police and Crown Prosecution Service, the HSE and other regulatory authorities should be given responsibility for the investigation/prosecution of this new offence. This issue has been discussed earlier in this note in the context of the prosecution of directors and others for the individual homicide offences and similar reasons exist why this proposal is highly problematic.

3.36	It is not being suggested here that the HSE or other regulatory body should be sidelined in investigations. In general terms the Home Office is correct when it states that “in cases of work related death, HSE and local authority inspectors liase closely with the police who recognise that the health and safety enforcing authorities’ knowledge and expertise is essential in determining both the immediate and underlying causes of death in such cases.” It is important that the HSE do provide advice and guidance to the police or crown prosecution service on technical health and safety issues and indeed on any questions about “management failure” and assist them in other parts of the investigation where appropriate, but they should not be the lead organisation in either the investigation or prosecution of this offence. Police investigations into work-related deaths are much more thorough and rigorous than those of the HSE and whilst the CPS may have its  faults, it is the body which is responsible for the prosecution of serious crimes, and it should continue to have this responsibility.

3.37	The Home Office says that there are "strong practical reasons" for its proposal. Whilst, there may be some practical arguments for allowing regulatory agencies to monopolise the investigation/ prosecution, they are seriously overstated and would be at the cost of ensuring that the deaths would be subject to proper and rigorous investigations, as well as appropriate prosecution decisions. 
•  The Home Office, for example,  states that the corporate killing test reflects the test applied by the HSE and other regulatory bodies, and that they are in the best position to assess this sort of test. However, the Crown Prosecution service is perfectly able to deal with these questions. Furthermore the HSE has never had to deal with assessing a test  of “gross negligence” – as the CPS has had to do for years – or questions of “causation” – which again the CPS does all the time. This is not to say that the CPS may well need, from time to time, guidance from the HSE.
• The Home Office also argues that regulatory agencies will discover in the coarse of their investigation, evidence pertinent to the question of "management failure". It argues that to require the police to conduct “what would in effect be a parallel investigation would lead to duplication of effort”. However, though it is preferable to avoid duplication, it is preferable that there is some duplication if the alternative is poor investigations. In any case, the duplication argument is somewhat overstated since there will be no need for the HSE to investigate again if the intial Police/HSE joint investigation is thorough. 
• The Home office argues that its proposals would avoid the complexity of current arrangements for liaison with the police and referral to the CPS. However, there is no need for there to be complexity. If procedures are set in place to ensure that deaths are investigated jointly by the police and HSE (with the police as leaders) then the evidence that is collected is them simply refered to the Crown Prosecution service to make a decision. If they decide not to prosecute for any of the homicide offences, the HSE can then take over.

3.38	Connected offences committed by Director or other company officer
The Home Office makes one proposal and “welcomes comments” on another in relation to whether (apart from being able to prosecute directors or managers for the individual homicide offences) other action should be able to be taken against them. These proposals are over and above what was originally suggested by the  Law Commission.

3.39	Disqualification proposal: the Government is proposing that an individual “who could be shown to have had some influence on, or responsibility for, the circumstances” which resulted in a company being convicted for corporate killing, “should be subject to a disqualification from acting in a management role in any undertaking carrying on a business or activity in Great Britain.”

3.40	It is proposed that the “ground for disqualification would not be that of causing death but of contributing to the management failure resulting in the death,” and that proceedings for disqualification would only take place after the conviction of the company.

3.41	This would not require the enactment of a new criminal offence, and the director or manager in question will not be prosecuted as an individual for any offence. The Home Office argues that this is necessary to provide a meaningful level of:
• “protection to the public” and 
•  “deterrent even in respect of directors or large and wealthy companies, as their personal income could be severely affected by such a disqualification order.”

3.42	Imprisonment possibility: The government is also considering – though not proposing - whether there should be an additional criminal offence, for which a director/manager could be prosecuted, if he “contributes” or “significantly contributes” to the offence committed by the company. It is also being considered whether imprisonment should be a sentencing option for the courts in relation to this offence.

3.43	The idea here is to create a new offence which is in effect intermediate between:
• a regulatory offence – where it is necessary to prove that a health and safety offence committed by the company is the result of “neglect, consent or connivance” on the part of a director or manager ; and 
• one of the individual homicide offences.

3.44	The Home Office argues that the reason for considering this second option is that “it has been argued that the public interest in encouraging officers or 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 convictions against them for either of the individual [homicide] offences.”

3.45	It appears that the only difference between these two different options is that in one the conduct of the company officer is a criminal offence which can result in imprisonment and in the other, exactly the same conduct would not amount to a criminal offence but that disqualification can result.

3.46	The second option appears preferable. It is crucial that company directors and others at the top of a company are as the Home Office states, appropriately deterred from putting the lives of people at unnecessary risk. It is always going to be difficult to prosecute individual managers and directors for homicide offences, and it is therefore important that conduct, that does not merit prosecution for the individual homicide offences, but is still seriously culpable, can results in a prosecution for an offence with proper stigma and penalties attached.

	Further though needs to be given to the construction of such an offence – should the wording be “contributed” or “significantly contributed, or should it be similar to the “neglect, consent, connivance” offences contained in regulatory offences.

3.47	Jurisdiction
Summary: The position taken here is that as a matter of both principle and public policy British companies that commit homicide offences abroad should be able to be prosecuted in English courts. British companies should be in the same position as British citizens who can be -  and will continue to be under the Home Office proposals - prosecuted for homicide offences. 

3.48	It is unclear whether the law at present does or does not allow companies to be in the same position as individuals and be subject to prosecution in English courts for manslaughter offences committed abroad. This question has been untested in the courts, though there are strong grounds for arguing that the law now does allow courts to prosecute companies in such situations. Whether it means changing rather than clarifying the current law, the proposed Homicide Bill must contain an explicit provision that would allow English courts to have jurisdiction over homicide offences that companies commit abroad. This would make it consistent with Home Office policy in relation to corruption where it is proposed that companies that commit such offences abroad should be able to be prosecuted through the English courts.

3.49	The Home Office Proposals: In relation to its three proposed individual homicide offences - the government proposes a retention of the existing rule - that is to say individuals who commit these offences abroad can be prosecuted in this country. However, in contrast, it does propose that companies who commit the new homicide offence of “corporate killing” should not be able to be prosecuted in English courts. The Government states that:

“Companies registered in England or Wales which commit corporate killings in the course of their work abroad will not be liable to prosecution here. That would be a matter for the courts in the country concerned … [W]e recognise 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 committed abroad wheras an undertaking will not.”

3.50	The Government gives two  reasons why it believes that courts should not have jurisdiction. First it argues that is would create too many practical problems. 
 “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 and 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, out courts have a tradition of oral evidence and cross examination.”

3.51	Secondly, it argues that it would not be appropriate for policy reasons:
“.. 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 happened. We apply this policy so that we cannot be accused of “exporting our laws”.

3.52	The Home Office is however silent on whether companies, which in addition to being prosecuted for the new offence of corporate killing, can also be prosecuted for the individual offences (through the current identification doctrine) should be able to be prosecuted for these offences if they commit them abroad.

3.53	The Current Legal Position: The general rule in English law is that English courts only have jurisdiction over crimes committed in England. One of the exceptions to this rule relates to homicide offences – that is murder and manslaughter whereby English courts have been given jurisdiction over these offences when they are committed by its ‘subjects” outside England. Section 9 of the Offences against the Persons’s Act 1861 states that 

 “Where any murder of 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,  …”

3.54	In effect what this means – when read alongside section 3 of the British Nationality Act 1948 – is that English courts have jurisdiction to try a British Citizen who is alleged to have committed manslaughter outside England and Wales. It has been held that a person commits manslaughter at the place where the death actually occurs not where the gross negligence or recklessness takes place. 

3.55	What this means is this. English courts have jurisdiction over the offence of manslaughter:
• where it is committed by any person, as long as the death takes place in Britain (the normal rule of jurisdiction);
• where it is committed by a British Citizen with the death occurring outside Britain. It makes no difference whether the gross negligence that caused the death took place in Britain or outside. 

3.56	Companies: Any company – whether British or not - that commits manslaughter in Britain can be prosecuted in English courts. What is the situation where a company may have committed manslaughter abroad? This could arise when a British Citizen who is a considered to be a “controlling mind” of a British company commits manslaughter abroad –whether he acted with gross negligence inside or outside Britain.

3.57	Clearly as an individual, the director can be prosecuted. Whether the company can be prosecuted at the same time depends upon whether a company is considered to be a “subject of Her Majesty” – the words used in the 1861 Act. There is no legal case on this point. Black’s Law Dictionary defines a “subject” as 
 “one that owes allegiance to a sovereign and is governed by his laws. The natives of Great Britain are subjects of the British Government. Men in free governments are subjects as well as citizens; as citizens they enjoy rights and franchises; as subjects they are bound to obey the law.”

3.58	While the whole phrase “subjects of her majesty” seems to refer to citizens who are human beings, the argument that this includes legal persons (i.e. companies) is strong:
• 	One way of interpreting a statute is to look to the intention of the legislature. Clearly, when the OAPA 1861 was passed the word “subject” was meant to refer to a human being since companies in those days were collections of people and did not possess the distinct legal personality of today. However, another rule of statutory interpretation is that words and concepts can be updated to take account of change in conditions. Under this latter view, one could argue that a “subject” today means a “person” - which includes legal persons like companies - with some “nationality” bonds to the country. Whilst for human persons, nationality laws determine citizenship, for legal persons, it depends on  whether they have registered in England. In effect, therefore, it can be argued that “subjects of her majesty” include companies registered in Britain. 
• 	In addition, the concept of “subject” implies an agreement to be “subject to the laws” of the Sovereign. All companies are subject to the laws of the sovereign, but British companies, though the process of regulation, are subject to even greater level of legal control. They are therefore clearly “subjects” in this sense.
• 	The term “subject” in section 9 must refer to those persons capable of committing murder or manslaughter. Not only human persons but also legal persons are now deemed capable of committing manslaughter. This is another reason why companies should be deemed to be ‘subjects’.

3.59	In conclusion, there is a strong argument to suggest that under current law, british companies that commit manslaughter abroad – through the conduct of a British citizen who is a controlling mind of the person - can be prosecuted in English courts.

3.60  Why companies should be able to be Prosecuted for Homicide Abroad
There are reasons of principle and public policy why the government should ensure that English courts have jurisdiction to prosecute companies that commit homicide abroad. This question arises in relation to:
• a British company based in another country;
• a British company based in Britain but with operations abroad
• a parent company based in Britain in relation to activities of its subsidiaries abroad

Before considering these, consideration must first be given to the arguments used by the Law Commission and the Home Office why courts should not have jurisdiction.

3.61	“Practical Reasons”: As noted above the Home Office argued that there would be “very considerable practical difficulties” in extending the jurisdiction in relation to the new offence of corporate killing, which would result in these offences being “practically unenforceable”. In particular it states: “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.”

3.62	However, whether this is or isn’t the case, exactly the same practical difficulties exist in relation to individual homicide offences yet the Government has not argued that these practical difficulties should result in there being no extra-territorial jurisdiction for these offences. The government indeed gives no reason why there are practical problems for corporate culpability, and none for individual culpability. Company directors could therefore be prosecuted for manslaughter committed abroad, but not his company!

3.63	In any case, practical difficulties involved in proving the offence of corporate killing committed outside Britain may well be less than the difficulties involved in proving individual manslaughters committed abroad. In most individual manslaughter cases, all the evidence will be located abroad – that is both the evidence of  ‘recklessness’/‘gross negligence’ and evidence about the ‘cause’ of the death’.  However, in many cases of corporate killing committed abroad, the company in question will not only be registered but be based in Britain. As a result evidence of all or part of the management failure may well be in Britain itself.

3.64	“Dual Criminality”: The second reason given by the Home Office relates to the concept of “dual criminality” The Government states in its own report that it will only consider taking extra-territorial jurisdiction in relation to offences where dual criminality exists – that is to say where the offence in question is an offence both in England and in the country where the crime is said to have been committed. Although it does not state explicitly, the government implies that in its view there does not exist “dual criminality” in relation to the offence of “corporate killing”; that is to say there are no similar offences to the crime of corporate killing in other countries. There are however many problems with this argument. 
• The Government appears to assume that there is no problem of dual criminality in relation to its three individual homicide offences. This is not discussed in the report, but just taken for granted. Yet, the government’s assumption is dubious. Whilst most jurisdictions may well have an offence similar to one of “reckless killing” – involving subjective awareness -  many will not have a homicide offence that can be proved through ‘gross negligence’. Indeed even more jurisdictions will not have an offence similar to the proposed “third” homicide offence. 

•  Since the Home Office has not taken “dual criminality” into account in relation to its individual offences, then it is wrong that it should suddenly become a criteria for whether the corporate homicide offence should or should not be “extra-territorial”.

•  In any case, the Home Office is wrong to assume that other jurisdictions do not have an offence which criminalises the conduct that constitutes the proposed offence of “corporate killing”. All that is required to pass the dual criminality test is that the conduct in question “constitutes an offence under the law in force in that country or territory” where the offence is said to have been committed. It does not have to be an offence with a similar name, nor indeed must it necessarily be treated equally seriously by the foreign jurisdiction. All that matters it that the conduct in question is a criminal offence in the foreign jurisdiction. 

This is indeed the case in relation to the offence of corporate killing. Many countries will have, for example, regulatory or other similar offences which allow for companies to be prosecuted for failing to comply with safety duties etc. In fact there may well be more countries that criminalise negligent companies than criminalise negligent individuals. This is because many countries only criminalise reckless or intentional conduct that caused death, and not gross negligence, but will criminalise negligent corporate conduct whether or not it causes death.

Indeed, the Law Commission argued that one of the reasons why it did not believe in extra-territorial jurisdiction for the corporate killing offence, was the very fact that such conduct could result in prosecution in the foreign jurisdiction.  It stated that, “we see no pressing need for such a provision, since there might well be liability under foreign law in such a case.” The Home Office did not counter this view in its report; if the Law Commission view is correct – which in our view is so - then there is no problem about dual criminality at all.

3.65	Home Office Inconsistency: As mentioned above, the Home Office has recently published a consultation document on reform of corruption offences.  It proposed that English courts should have jurisdiction over corruption committed abroad by both british citizens and companies. How can the Home Office allow british companies that commit corruption abroad, but not homicide abroad, to be prosecuted in English courts.

3.66	 The report published a set of criteria – not even mentioned in the Home Office manslaughter report - that had previously been drawn up a few years earlier by the Home Office to assist it in considering whether offences should have extra-territorial effect. These “guidelines” had recommended that extension of jurisdiction could be considered where at least one of the following factors was present:
	• where the offence is serious (this might be defined in respect of existing offences, by referred to the length of sentence currently available.
	• where, by virtue of the nature of the offence, the witnesses and evidence necessary for the prosecution are likely to be available in UK territory, even though the offence was committed outside the jurisdiction;
	• where there is international consensus that certain conduct is reprehensible and that concerted action is needed involving the taking of extra-territorial jurisdiction;
	• where the vulnerability of the victim makes it particularly important to be able to tackle instances of the offence;
	• where it appears to be in the interests of the standing and reputations of the UK in the international community;
	• where there is a danger that offences would otherwise not be justiciable.

3.67	These Guidelines or criteria were not even mentioned in the Home Office’s report on manslaughter. The Home Office does not appear to have considered it own guidelines that it had established just a few years ago to determine exactly these questions. Had it done so, it would have found that all these criteria exist to a greater or lesser extent, in relation to the offence of corporate homicide. 
	• Homicide is clearly a very serious offence, whether it is committed by individuals or companies. 
	• In many cases, the evidence of corporate killing would be in Britain, since the companies are likely to be based and have other businesses in this country
	• There is international consensus that manslaughter – whether committed by individuals or companies - is ‘reprehensible’. There is also international consensus that there is a real problem with companies who fail to have proper “ethical” standards in relation to health and safety, as it indicated by the numerous codes of conduct in existence.
	• In many cases, the victims of corporate killing would be in a vulnerable position. The workers who die may well not be unionised, receiving low pay and are easily “brought” off by the company. In fact, the corruption within the criminal justice system may ensure that the company is never prosecuted 
	• it is in the interests of the standing and reputation of the UK. The reputation of Britain would undoubtedly be seriously effected if it was known that British companies can commit manslaughter abroad, causing the death of foreign nationals, yet escape prosecution.
• There is a danger that British companies that commit homicide will not be prosecuted in the foreign jurisdiction – even when offences exist. There is therefore a problem with whether these offences are “justiciable”.

3.68	Other Public Policy Factors: In addition to the points made above, there are other important public policy reasons why companies that commit homicide abroad should be able to be prosecuted abroad.
• If the Home Office proposals stand, companies (which are legal entities separate from the individuals which comprise them) will obtain preferential treatment compared to individuals who commit the offence of homicide. Whilst individuals that commit homicide offences outside Britain can be prosecuted in Britain, companies can escape any form of accountability for one of the most serious offences in English law. This inequality before the law is unacceptable. The same rules of jurisdiction should apply to homicide – whether committed by individuals or companies. Furthermore, if it is the case that companies under current law can now be prosecuted for manslaughter committed abroad (see above …), then the Government will actually have decided to restrict jurisdiction of British courts over British companies that commit homicide offences abroad. 
• The Home Office proposals could also have bizarre results. It could well mean that although a company could not be prosecuted for the offence of corporate killing when committed abroad, a company could still be prosecuted for one of the new individual homicide offences when committed abroad. This is because if a company director or manager was prosecuted, then the identification doctrine would apply, which could mean that the company could be automatically prosecuted. It simply does not make sense that a company could be prosecuted for homicide in one instance but not in the other. 
• This Government increasingly recognises that some British companies do operate abroad without proper regard to the safety of workers of the public in that jurisdiction. It also acknowledges that when such behaviour takes place it is totally unacceptable. As Clare Short has stated, we ca not “tolerate abusive and hazardous working conditions, poverty pay, slave labour or the denial of the right to freedom of association.” The Government is working hard to persuade British companies to operate safety and responsibly. In light of this concern, it is therefore totally inappropriate for companies to be allowed to commit homicide abroad with impunity. This is not about regulation, it is not a challenge to the Codes of Conduct. It is simply asserting that companies must not be above the law and the British courts have a proper role in taking jurisdiction over the most serious crimes that companies could 
• Unless English courts have jurisdiction over corporate homicide offences, there is no action that British courts could take against companies operating abroad – however recklessly or negligently they may have acted and however many people they may have killed. There would be no deterrence. Yet the importance of deterrence has been acknowledged by the Home Office as being one of the reasons why it decided to allow English courts to have jurisdiction over corruption committed abroad by British citizens and companies. It stated:
“we have also considered whether we should go further and extend nationality jurisdiction to such an offence, recognising that this could send a strong deterrent message that the UK is determined to act against corruption wherever it occurs. This is a message which would have real persuasive and dissuasive force and which would back up existing codes of conduct.”
The Home Office could use these exact words in relation to corporate homicide offences. 
• Either the offence of corporate killing is unlikely to be committed abroad by British companies – in which case the practical issues are not an issue – or British companies do commit these offences abroad – in which case there is a public policy reason why British companies should be able to be prosecuted in British courts if no action is taken in the country in question

3.69	Insolvency and Dissolution of Companies
It is proposed that the courts should be given the power to freeze the property and assets of a company that might be prosecuted for corporate killing (or had pleaded guilty for the offence) in order to stop directors dissolving the company or deliberately making it insolvent. The Home Office states that:

“It might be necessary to allow the prosecuting authorities to take actions to freeze company assets before criminal proceedings were started to prevent the directors or shadow directors of the company transferring assets in the knowledge that it had been involved in a death which might give rise to a corporate killing charge.”

3.70	The Home Office states that such “proposals would represent a significant extension of the powers available in such a situation.” For example, in relation to drug trafficking laws only assets arising “from the proceeds of crime” can be frozen. The Home Office is however  is also concerned that this proposal might breach the European Convention of Human Rights (ECHR) and the principle of ‘innocent until proven guilty.”

3.71	There is a clear need to deal with companies – particularly small ones – which dissolve themselves before a prosecution can take place, and move the company’s assets to a new of different company. Under current law, individuals charged with an offence can either by remanded in custody or provided bail under conditions. It would therefore not seem to be a problem in placing conditions on companies after they have been charged. However, what about before formal charging; individuals can be put to great inconvenience, by being arrested, kept for questioning and put on police bail even before they have been arrested. It would therefore not seem particularly onerous if courts could impose conditions on companies if there was a fear that the assets could be moved to other companies.

3.72  Sentencing
 The Home Office proposes that courts should have the power to impose “remedial orders” upon companies for “remedying the failure in question any matter which appears to the court to have resulted from the failure and been the cause or one of the causes of the death.” It is being proposed that the court will not be able to make such an order, except on “an application by the prosecution specifying the terms of the proposed order.”

3.73	It is important that there be a “rehabilitation” aspect to sentencing of companies, so the idea of a “remedial” order is a positive one. Courts should have a role in ensuring that companies act in a safe way in the future. It is not enough to rely on the Health and Safety Executive to impose improvement or prohibition orders – that may have to be limited in nature. Courts could be given the power to require convicted companies to undertake changes within its safety management which regulatory agencies are unable to force companies to make. For example, employing further safety officers or “buying in” specialist safety consultants etc. 

3.74	However, it is not clear why the courts should not on their own accord be able to impose their own “remedial orders” without requiring the prosecuting authority to make an application.

3.75	The Home Office does not look at other sentencing options in relation to companies convicted of this new offence. For example it did not consider whether the courts should have the power to impose “equity fines” – rather than just cash fines – on public limited companies.’ Equity fines  - proposed by the Canadian Law Commission require a convicted company to issue a particular number of shares - equivalent to an expected market value to the cash fine necessary. This would allow large fines to be imposed without there being negative repercussions on workers or consumers. 

3.76	The advantages of equity fines are the following:

“Firstly, the costs of the penalty would be exclusively placed on the shareholder. A high fine would no longer carry a latent threat to employment or the community dependent on the company. The equity fine would have no more effect on the company's solvency than if an equivalent share dividend was issued. Secondly, much higher penalties in monetary terms could be imposed ‘because the market valuation of the typical corporation vastly exceeds the cash resources available to it’. Thirdly, the penalty would directly affect the managers in control of the corporation because the ‘resulting per share decline in the corporation's common stock following such a penalty will reduce the value of the stock options and other incentive compensation available to him’. Finally, it will directly encourage stockholders to take into account the risk of illegal behaviour.”

3.76	In addition the Home Office does not consider whether there should be a system of proportionate fines, so that fines are not only proportionate to the seriousness of the offence but also the profits/turnover of the convicted company.