CCA/TUC CONFERENCE
LAW ENFORCEMENT AND CORPORATE ACCOUNTABILITY
AT CONGRESS HOUSE, GREAT RUSSELL STREET:
WEDNESDAY 21 NOVEMBER

Speech by Keith Bradley MP – Minister of State for Criminal Justice, Sentencing and Law Reform, Home Office

‘THE LAW OF MANSLAUGHTER’

I am grateful for this opportunity to share with you the Government’s proposals for reforming the law on involuntary manslaughter and corporate killing.  I am aware that my colleague Alan Whitehead has taken you through the Health and Safety reform proposals.  I can assure you that we are taking great care to ensure that any reform in the area of Health and Safety ties in closely with the Home Office proposals on the new offence of corporate killing. 

Can I begin by saying that we take the offence of manslaughter extremely seriously and our dedication to reforming the law on corporate killing is demonstrated by its inclusion in our manifesto.  We are always mindful of the need for businesses to operate successfully.  But we also believe that companies must operate in a responsible and safety conscious manner.  I know that the Centre for Corporate Accountability has shown great interest and commitment to the issue of corporate killing and made some very helpful contributions in response to the consultation. 

And I wish to add my personal commitment to securing justice for those bereaved as a result of failings in health and safety implementation. 

Although I am aware that corporate killing is the prime area of interest to you today, I would like to begin by briefly outlining our proposals for the reform of the law on involuntary manslaughter.  I hope this will help to set the context for our proposals on a corporate killing offence.

I will then go on to explain why it is that we believe that a new offence of corporate killing is necessary. 

As many of you will know, we published a consultation paper entitled “Reforming the Law on Involuntary Manslaughter: The Government’s Proposals” in May 2000.

Many of the proposals we put forward for consultation were built on the Law Commission Report “Legislating the Criminal code: Involuntary Manslaughter” which was published in 1996.  By the time the consultation period closed in September of last year, we had received over 160 responses.  These were of a very high standard and consisted of detailed consideration of the proposals. 

Since then, we have been working through these responses and considering how best to proceed in the light of the comments and issues raised by respondents.  And, as the new Minister, I am closely working with officials on this evaluation and I will take on board views expressed in conferences like this.

We have chosen to use the term involuntary manslaughter because we feel our proposals capture the criminal liability of those who kill when they do not intend to cause death or serious injury.  One of the main reasons for the reform of the law in this area is to make it easier for judges to allot the appropriate sentence.  

Therefore each of the three offences that follow offer a narrower definition of behaviour accidentally resulting in death.  The nuances of each of the various offences are designed to capture the different circumstances that might lead to such a charge.

The consultation paper proposed three involuntary manslaughter offences to which individuals could be subject along with the new offence of corporate killing. These are: reckless killing, killing by gross negligence, and a third offence which has provisionally been entitled causing death by intentional injury. 

Reckless Killing 

Firstly, reckless killing occurs when an individual is aware of the risk that his or her conduct will cause death or serious injury and that with this knowledge in mind, it would be unreasonable for him or her to take the risk.  But the individual nevertheless carries out that conduct and that action results in a death. An example of this conduct might include putting a petrol bomb through the letter box of a house that the offender knew was occupied.

This offence differs from the existing manslaughter offence of, ‘unlawful and dangerous act manslaughter’, because it does not require that the conduct carried out need be unlawful. This broadens the net for capturing those whose behaviour is risky but is not illegal.  By adding the provision, in the new offence that any reasonable person would have known that there was a risk that their behaviour would cause serious injury, the offence provides judges with a narrower band of appropriate sentences.

The reasonable person who knowing that his or her behaviour was likely to result in death or serious injury, nevertheless carries out the act, would be found guilty of reckless killing.

Killing by Gross Negligence 

Secondly, killing by gross negligence takes place when a person fails to appreciate a risk that would be obvious to any reasonable person and that behaviour results in death. In order to be found grossly negligent, the individual must have carried out conduct falling far below what could reasonably be expected or must be proven to have intended for their conduct to cause some injury.

The conduct that the individual engages in is required to constitute an offence.  An example of killing by gross negligence would be failing to appreciate that locking up an individual in a room without food, and water for a prolonged period of time would result in their death.

The third offence is designed to capture those individuals who intend to cause some injury but whose conduct results in the death of another.  The conduct carried out must be illegal behaviour.

An example of this might be a pub brawl that results, unexpectedly, in the loss of life.  The requirement that the activity initially engaged in must be an offence, is designed to ensure that tragic accidents, where no harm was intended, are not caught within this new offence.  But ensures that those who carry out illegal acts, whether they intend to cause serious harm or not, must be responsible for the consequences of their actions.

Corporate Killing

Let me now turn to the offence of corporate killing.  Currently the law requires that if an undertaking is to be found liable for an offence, it is necessary to identify an individual or group of individuals who might be seen to be responsible for failing to provide a safe system of work.  This is known as the ‘identification doctrine’ and has made successful prosecution very difficult except in cases of very small undertakings.  

This has meant that there have been very few successful prosecutions for corporate killing. It may also be true that the existing guidelines and case law have been interpreted too narrowly.  Hence it is expected that the new legislation will provide a clearer avenue for securing successful prosecution of those companies whose standards have fallen far below what could reasonably be expected.

It is generally true that the larger and more diffuse the organisation, the harder it will be to identify someone who might be said to embody that organisation.  Therefore, in our consultation paper, we proposed to go further and extend the scope of the corporate killing offence to include all businesses and organisations providing employment.  I shall therefore refer to undertakings instead of companies or corporations.

In our consultation paper we considered the Law Commission’s suggestion that the offence ought to apply only to incorporated organisations.  But we felt that this would create anomalies because it would exclude large partnerships and not for profit organisations who all ought to have health and safety procedures in place. 

The new offence of corporate killing seeks to capture conduct that falls far below what can be expected of a reasonable undertaking in the circumstances. The offence does not require the risk to life to be obvious, or that the undertaking should be able to appreciate the risk.  Instead all that is required is that the way in which the companies activities are managed or organised fails to ensure the health and safety of persons employed there.  

Therefore, the undertaking as a whole is seen to have committed a management failure even if the cause of the specific death is the act or omission of an individual.  We envisage that the introduction of the new offence will encourage those companies who have so far failed to do so, to take their health and safety much more seriously.  This may take the form of companies nominating a Health and Safety Director or inviting more regular audits of their health and safety procedures.  These are implementation rather than legal issues.  Nevertheless we are aware that these need to be considered in tandem with the framing of the new offence.

The consultation paper invited views as to whether individual directors ought to have action taken against them and whether, if found culpable, they ought to be disqualified from acting in a management role or imprisoned.  It also sought comments on the application of Crown Immunity to the offence of Corporate Killing. Decisions on these two key issues will be taken in consultation with other Departments.

Secondly, there is considerable public concern about the apparent inability of the criminal law to convict a company for manslaughter in instances where, had an individual been liable, they would have been convicted.  There is a need to ensure that proper redress is available to the families of victims of disasters caused by management failure.  There is also a strong argument for the value of public censure in ensuring that undertakings that do not take proper care to safeguard the welfare of their staff and the public, are exposed as criminally negligent.

Responses to the consultation exercise have led to us to give further thought to our proposals.  We have been working with other Government departments including the DTLR, Department of Employment and Skills, the HSE and the CPS to refine our plans. In particular, we are engaged in inter-Departmental discussions to consider the implications of Crown Immunity, and the group is due to report to Permanent Secretaries across Whitehall at the end of the year.
 
Although I am unable to say at the moment what conclusions we will reach on how best to implement these proposals, I want to reiterate that the Government is committed to, and aware of the fact that reform is needed, and there is an intention to bring forward legislation when Parliamentary time allows.

Accidents over recent years involving the death of rail passengers as well as individuals at work - and here I would like to pay tribute to the bravery of Anne Jones and Tom Byrne who will be speaking later this afternoon - have ensured that the process started by the Law Commission back in 1996, with the publication of their recommendation for a new offence of corporate killing, remains as relevant today as ever. 

In acknowledging this I recognise that the majority of undertakings are not criminally negligent, just as the majority of individuals would not entertain the idea of carrying out activity so risky that it might result in death. The responsible and conscientious undertakings, that abide by existing health and safety regulations are most likely to be unaffected by our proposals. 

Thank you again for giving me the opportunity to lay out the Government position on this extremely important issue.