Is the Corporate Manslaughter and
Homicide Bill 2006 worth it?

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It is fairly clear now what will be the content of the final version of the Corporate Manslaughter and Corporate Homicide Bill – with the only real uncertainty over whether or not the new offence will apply to deaths in custody.

Putting this issue to one side (see CCA’s press statement ), this is an appropriate point at which to ask some rather fundamental questions: how good will this legislation be? Will it have been worth the years of lobbying and campaigning?

The very fact that we feel the need to raise these questions indicates our central response: namely, that this Bill represents a missed opportunity, in many respects.

The New Offence
It is the adequacy of the new legal test – replacing the identification doctrine – that is the most crucial part of the Bill. The new legal test no longer requires the prior identification of a specific individual director/senior manger to prosecute for manslaughter before consideration of the prosecution of the organisation. The uncoupling of the individual from the test of corporate culpability is a positive step and should make it easier to prosecute organisations.

The new test does however require some significant connection between the gross failure that caused the death on the one hand and the senior management of the organisation on the other; a 'substantial' element of the gross failure that caused the death must be at a senior management level. In other words, there has been a significant shift away from, but not a complete abandonment of the principle of identification, with all its attendant problems – the very problems that the reform process which commenced in 1996 sought to overcome (see our contemporary briefing to the Lords). However, it still seems likely that this new test will make it somewhat easier to prosecute medium and large-sized organisations. That said, we remain concerned about the Government’s estimate in its ‘Regulatory Impact Assessment’ for this bill that the new offence would only result in only five additional prosecutions for corporate manslaughter each year.

Who can Commit the Offence?
The current law only allows companies to commit manslaughter; the new offence will apply not only to companies but also Government bodies and partnerships. This is undoubtedly positive.

The situations in which Government bodies will be liable to prosecution following a death of a member of the public are, however, highly restricted by the new Bill – even if the Commons were to accept the amendment allowing the offence to apply to custody deaths. Yet, Government bodies causing the deaths of employees will in most situations be liable to prosecution under the new offence – something which cannot happen at the moment. This is positive.

Director Accountability
In the CCA’s view the absence of a provision in this Bill to hold directors to account does not mean that the Bill is entirely without merit. If the new offence makes it easier to prosecute large to medium sized organisations for manslaughter, this in our view is progress and would bring improved justice to families.

However, action on director accountability is crucial. The current legal position both fails to motivate sufficiently directors to take action to prevent deaths and injuries, and also allows them to escape accountability when their failures causes death and injury. Since the Bill fails to address this accountability gap, it is our view that we, and other organisations, must continue to press the Government to legislate now to impose positive safety duties upon directors. Imposing legal duties on directors would not only have a real day to day effect on directors that would improve safety in companies, but would also facilitate their prosecution under existing laws. In 2000, the Government promised this reform and in 2005 the Health and Safety Commission finally accepted the argument in favour of legal change – but still nothing has happened. In the CCA’s view both must be kept to their commitments.

Sentencing
Under the current law, the only penalty that the courts can impose is a fine. Under the new Bill, there are two further possible penalties – a remedy order (in which the court orders particular improvements to be made) and a publicity order (in which the court requires the convicted organisation to publicise details of the conviction).

In our view it is very unlikely that the remedy order will be a useful sentence since the regulatory body should already have used its powers after the death to force through improvements. A similar (though slightly narrower) remedy order exists under health and safety law – and it is almost never used. The publicity order – which exists in other jurisdictions – can be a powerful tool and we certainly support its introduction.

However we are disappointed that the courts were not given a wider range of powers despite there being many concrete reforms proposed during the long period in which this Bill has been under consideration.

Remaining issues
The Bill requires the consent of the Director of Prosecutions before a private prosecution can take place. Nor does the Bill apply to deaths outside Britain in any circumstances
.
On the first point, it is our view that there is no reason why the DPP should have to give his or her consent to a private prosecution. On the second issue, tt is our view that this offence should deal with organisations that cause death abroad, when the management failure is in Britain (see briefing).

Summary
In summary, the CCA’s view is that this Bill represents a significant missed opportunity though still allows for some advance in the possibilities of accountability and justice following deaths at the hands of organisations.

Further, it remains absolutely vital that the Government does follow though with its commitment to change the law and impose duties on directors at the first possible opportunity. Such a legal change would save lives by improving health and safety culture.

Separate from, but related to, the specifics of the bill, the Government also needs to focus its attention on the Health and Safety Executive (HSE) – and the enforcement of health and safety law Rather than reducing its funding, the HSE’s budget needs to be increased so that the low levels of inspection, investigation and prosecution can be significantly increased. The Government should follow the research evidence commissioned by the HSE itself that shows the crucial part played by formal enforcement in ensuring compliance with the law.

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