| Introduction |
| 1 |
The CCA is a charity concerned with worker and
public safety focusing on issues of law enforcement
and corporate criminal accountability. We are
the only national organisation in Britain providing
free and independent advice to families bereaved
from work-related deaths on investigation and
prosecution issues . This includes deaths in Scotland.
In addition we undertake research on the criminal
justice system’s response to death and injuries
resulting from corporate activities. |
| 2 |
The
CCA has been involved in arguments for reform
of the law of corporate manslaughter in England
and Wales since we were established in 1999. In
2000 we sent in a detailed response to the Home
Office Consultation document and, in 2003, we
were involved in a more informal consultation
process with the Home Office as part of which
we submitted an additional written response. In
Scotland, we have been highlighting the inadequacies
of the law of Homicide – and its application
to work-related deaths – since 2003 when
we organised our first conference in Scotland
(with the support of the STUC) on Law Enforcement
and Corporate Accountability issues in Scotland. |
| 3 |
We are grateful for the opportunity to give evidence
to the expert committee considering reform to
the law of corporate homicide. Below we respond
to each of the questions in turn. We are appending
a number of documents to this response. Our detailed
response to the Home Office draft bill and a legal
opinion concerning the application of the Human
Rights Act 1998. |
| Do
you agree that the law in Scotland needs changing
to enable prosecutions of organisations for culpable
homicide? |
| 4 |
Yes
we do for the following reasons:
| • |
although
the identification principle set out by
the Scotland's High Court of Justiciary
sitting as a Court of Criminal Appeal
in R v Transco is wider than the
current principle in English law –
in that:
“a
collective decision taken by a delegate
group with the requisite knowledge is
… attributable to the company as
a decision by an individual” –
it is still a narrowly based principle.
| - |
it
is still focusing on individual conduct
rather than ‘management failure’
|
| - |
it
needs to be shown that particular
senior company officer(s) within a
company were (a) reckless and (b)
their recklessness caused a death. |
|
| • |
It
is appropriate that an organisation’s
culpability is based around the concept
of management failure – which focuses
on the way in which an organisation is managed
and organised – rather than individual
conduct. This is a more appropriate way
of assessing whether an organisation has
culpability or not. |
| • |
the
current law of homicide in Scotland requires
a degree of subjective recklessness that
does not exist in English law – and
it is appropriate, when dealing with organisations,
for that this kind of subjectiveness is
removed as a necessary requirement. |
| • |
It
is important to recognise, however, that
whilst in England and Wales, there have
been dozens of manslaughter prosecutions
of directors, managers and companies following
work-related deaths, in Scotland there has
only ever been one – the Transco case.
it is important to recognise that the adequacy
of the law is only one reason why there
have been so few corporate homicide prosecutions
in Scotland. Work-related deaths are not
subject to the anywhere near the level of
rigour or extent of investigation as deaths
in England and Wales . Deaths in Scotland
that the CCA has been involved with (though
our advice service) have not been subject
to any police investigation. There is simply
no point for there to be a focus on changing
the law of homicide if there is not equal
attention given to the manner in which work-related
deaths are investigated and the way in which
the Crown Office considers them |
|
|
What
is your preferred option for change, and why?
|
| 5 |
There are a number of different options available
to the Scottish Executive. For example, the Scottish
Executive could support the Canadian option of
reform (which involved changing the legal test
of liability for whole categories of offences
committed by companies); or the more limited reform
proposed by the Home Office (which creates one
new offence which a new test of liability). |
| 6. |
The Canadian reform clearly has many advantages.
Why change the test of liability for one offence
but allow the old test to remain for all the other
offences that companies can commit? |
| 7. |
If the Scottish Executive would prefer to opt
for change that primarily created a new offence
dealing with organisations that caused death (though
see below our answers in relation to the culpability
of directors and an offence involving injuries)
then it is important to consider the Home Office’s
draft bill. |
| 8. |
It would seem sensible – at the very least
– to consider whether there are elements
within the Home Office Bill that are worthwhile
taking as part of a Scottish reform. It is important
to acknowledge that in England and Wales thinking
about reform in this area has been going on for
over 10 years - from the Law Commission recommendations
in 1994, to it final report in 1996, then the
first Home Office Consultation in 2000 and finally
the new draft bill in 2005. This kind of background
consideration has not taken place in Scotland. |
| 9.
|
This
is not to say that any new homicide offence could
not be constructed on different lines to the Home
Office manslaughter offence. |
| 10. |
The CCA’s view on the Home Office reform
is as follows. We support the following aspects
of the structure of the offence :
• the focus on ‘the way in which a company
is organised and managed’
• whether any failure
- constitutes a breach of a duty
- caused the death and
- fell far below what could reasonably be expected. |
| 11.
|
We
also support the fact that:
• crown bodies should not be immune from
this offence
• that there needs to be some linkage between
(a) the management failure and (b) senior management
within the organisation. |
| 12. |
However as we set out in our response to the Home
Office, we think the following changes need to
be made:
| - |
the
failure need not only be a breach of a ‘duty
of care’ but also a breach of specified
statutory duties including section 2 to
6 of the Health and Safety at Work Act ; |
| - |
the definition of senior manager should
be widened so the word, “substantial”
in section 2 becomes ‘significant’; |
| - |
an alternative basis for prosecution is
allowed so that an organisation can be prosecuted
for any management failure within an organisation
as long as it was known about or should
have been known about by a senior manager; |
| - |
the offence applies to unincorporated bodies; |
| - |
the
offence applies to police, prisons and other
law enforcement agencies not only in relation
to deaths of ‘employees’ but also
members of the public; |
| - |
that
public policy decisions that result in death
are not immune from prosecution when the
circumstances justify it; |
| - |
that deaths which take place abroad when
the management failure is in Scotland should
be able to be prosecuted in Scotland; |
|
|
Are
the Home Office proposals appropriate for Scotland.
If not, why not?
|
| 13 |
Our general view on the Home Office proposals
is set out above– along with our response
to the Home Office which is appended to this document |
| 14 |
However, it is difficult to say whether the reform
is ‘appropriate for Scotland’, or indeed
whether the Home Office bill is ‘appropriate
for England’. The CCA does not see this as
a ‘national’ question – but a question
of assessing the strengths and weaknesses of a
particular proposed reform. |
| 15 |
Clearly, the Scottish Executive could adopt an
offence with relatively narrow scope as set out
in the Home Office proposal or it could take a
broader view on the scope of the offence and could
consider whether there should, as part of the
reform, be additional offences that would allow
directors to be prosecuted or allow organisations
to be prosecuted for causing serous injury. These
are, in the CCA’s view, clearly legitimate
options available to the Scottish Executive. |
| 16 |
It
is certainly the case that the Home Office Bill
is generally more limited in scope than the draft
bill it had proposed in 2000.
| - |
a
move from management failure to senior management
failure |
| - |
lack
of application to unincorporated bodies |
| - |
requirement
to have consent of DPP before private prosecutions
allowed |
| - |
no
additional scope for increasing accountability
of directors |
Though
it should be noted that the application of the
offence has been widened by allowing the offence
to apply to crown bodies (though in a restrictive
manner). |
| 17 |
Any decision about what should be the scope of
an offence of this kind will be dependent on social
and political factors - involving consideration
of a society’s views on the importance of
safety and the holding of organisations (and those
that control them) to account for deaths and injuries.
It will also need to consider how effective the
legal system has so far been in holding such organisations
and individuals to account in the future. |
|
Should
there be a secondary offence and, if so, what
should it be? Should individual directors be
subject to a new offence and how would this
vary from existing homicide legislation in relation
to individuals?
|
| 18. |
It is important to recognise the difference between
(a) a secondary offence and (b) a new separate
offence for directors. A secondary offence would
be an offence that allowed a director or senior
manager to be prosecuted for contributing, in
some way, to the offence that has been committed
by the organisation (the primary defendant). A
new offence would be a ‘stand alone’
offence that would allow a director to be prosecuted
irrespective of whether or not an organisation
was prosecuted. |
| 19 |
In considering whether there needs to be reform
in this area - it is important to recognise that
directors can be prosecuted at present for two
offences – the common law offence of Homicide
and an offence under Health and Safety law (a
secondary offence). Yet prosecutions of directors
for these offences are very infrequent in Scotland. |
| 20 |
It
is certainly the case that in Scotland –
even more than in England and Wales – there
is a real lack of director accountability. No
director in Scotland has, to our knowledge, ever
been prosecuted for homicide following a work-related
death, and very few have been prosecuted for breaching
health and safety law (whether a death has taken
place or not). |
| 21 |
The focus on the conduct of company directors
is a very legitimate one – they are the people
who have the most control over the management
systems within an organisation, how much resources
are put into safety, and so on. Making directors
take more responsibility for safety within their
companies and ensuring that they are held to account
for safety and manslaughter offences, where appropriate,
is an important goal of the CCA . Research indicates
that increasing the accountability of directors
would be an effective means of improving health
and safety and deterring conduct that places peoples
lives at risk. |
| 22 |
The
CCA is sees merit in the creation of a new secondary
liability offence – and we would support
the Scottish Executive drafting such an offence.
if it can be made to work within the structure
of the core corporate offence. It is also important
to note that there is little point in creating
anew offence for corporate or individual liability
unless there is also a much greater emphasis on
its enforcement. We would therefore urge that
the Scottish Executive explores how significant
changes can be made to the way deaths are investigated
in Scotland (see above). |
|
Is
the term “senior management” (as used
in the Home Office proposals) too restrictive?
Do you have alternative suggestions?
|
| 23 |
See
above and our response to the Home Office Consultation |
|
Should
any new offence apply to the Crown?
|
| 24 |
Yes.
See our response to the Home Office Consultation,
and legal advice annexed |
|
Should
any reform extend to injury and wider consideration
sentences?
|
| 25 |
We
think that extending any offence to cover serious
injuries could be a very important development
in Scotland. There is little logic for there being
an offence that allows organisations to be prosecuted
for homicide but not for causing serious injury.
The new Canadian principle of liability applies
to all offences – including those involving
injury. |
|
What
penalties would you consider to be appropriate?
|
| 26 |
There
are many alternative sentences that could be made
available to the courts: equity fines, community
service, negative impact orders and many more.
We would be willing to provide the committee with
a paper relating to possible alternative sentences
– available in other jurisdictions –
if the Committee had a real interest in this area. |
|
Do
you foresee significant additional costs with
a new offence?
|
| 27 |
We
do not foresee any costs |
|
Do
you consider that organisations and enforcers
may become more risk averse as a result of this
legislation?
|
| 28. |
We find the language of ‘risk aversion’
very problematic. It is being used these days
as a way of arguing against any form or regulation.
Clearly the purpose of any legislation of this
kind is to get people to think about risks and
manage them, and not to take unacceptable risks
with the lives of workers and others. To that
extent the legislation will – and indeed
– should make those individuals whose activities
potentially pose risks to others risk adverse
and to adequately plan for them |
|
Are
you aware of any aspects of the legal reforms
in Australia and Canada in respect of corporate
homicide that you would consider would be appropriate
for Scotland?
|
| 29.
|
We
think that there are three aspects of the Canadian
legal reforms that are worthwhile giving consideration: |
| 30.
|
the
way senior officer is defined. A senior officer
is defined as a
“representative
who plays an important role in the establishment
of an organisation’s policies or is responsible
for managing an important aspect of the organisation’s
activities and in the case of a body corporate
include a director, its chief executive officer
and its chief financial officer.”
This
is a wider definition than the Home Office proposals
|
| 31
|
The
new principle allows an organisation to be prosecuted
in the following situations:
| - |
When
any employee (representative) of the company
has committed one of the negligence offences
and a relevant senior officer of the company
(or more than one) has failed to take measures
that would reasonably be expected of him
to have taken that would have prevented
this employee (representative) from having
committed the offence; |
| - |
When
a number of employees (representatives)
have acted or failed to act in such a way
such that had all their actions and failures
been the actions and failures of one person,
that person would be considered to have
committed the offence and a relevant senior
officer of the company (or more than one)
has failed to take measures that would reasonably
be expected of him/them to have taken that
would have prevented these employees (representatives)
from having committed the offence; |
The
importance here is that – unlike the Home
Office Bill – failures at a lower level within
the organisation, can result in an organisation
being prosecuted, as long as there are failures
at a senior management level in relation to them.
We think this general principle should be part
of any reform |
| 32. |
The imposition of a new duty. This states that:
"Every one who undertakes, or has the
authority, to direct how another person does
work or performs a task is under a legal duty
to take reasonable steps to prevent bodily
harm to that person, or any other person,
arising from that work or task."
The
Government explained its reasons for imposing
the duty in the following way:
“The
Criminal Code imposes various legal duties
including the duty to provide the necessaries
of life for one's child (s. 215) and to use
reasonable care and skill when doing any act
that may endanger the life of another (s.
216). Moreover, if a person undertakes to
do an act, that person is under a duty to
perform the act if failing to do so would
endanger life (s. 217). Wanton or reckless
disregard of a duty which leads to death or
injury is grounds for a charge of criminal
negligence causing death (s. 220) or criminal
negligence causing bodily harm (s. 221). However,
the Code makes no explicit provision regarding
a duty of a person directing work to ensure
safety for the workers carrying out the work
or to take reasonable steps to ensure the
safety of the public.
In the Government's view, everyone who employs
others to perform work or has the power to
direct how work should be done should be under
a duty to take reasonable steps to ensure
safety of the workers and the public. The
Government proposes to enshrine that duty
in a new section 217.1 of the Code. What is
"reasonable" will vary with the
nature of the work and the experience of the
workers. The courts are well-equipped to consider
the evidence and decide on the proven facts
whether a person has shown reckless disregard
of the duty that led to death or injury.
|
