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Crown Immunity for Manslaughter Offences under Challenge

Any reform to the law of manslaughter must apply to all employing organisations - including Crown Bodies, and not just companies - in order for the Government to avoid being in violation of its human rights obligations according to human rights lawyers at Matrix.

The legal advice was given jointly by Tim Owen QC, Murray Hunt and Danny Friedman.

In response to this legal advice, David Bergman, Director of the Centre for Corporate Accountability, said:

"It has always been apparent that there are good public policy reasons why any new manslaughter offence should apply to all employing organisations including Prisons, Government Departments, the police, partnerships, schools, and other unincorporated bodies. Now, it appears that the Government is required by its own human rights laws to ensure that any such offence should apply to them."

The Home Office has committed itself to publishing a draft bill by the end of December 2003 - even though there was no mention of legal reform in last week's queen speech. Reform to the law is a Labour Party manifesto commitment. To read about the arguments for reform and the proposed new offence, click here.

The legal advice was sought by the Centre for Corporate Accountability on hearing that the Home Office were considering a new offence that would only apply to companies.

To understand what are companies, unincorporated bodies and crown bodies, click here

A version of this advice was sent to the Home Office last month.

The lawyers also state that the immunity provided at present to crown bodies for the current offence of manslaughter or for health and safety offences (following a death) is also likely to lead to violations of the Human Rights Act 1998 in the circumstances of a particular case.

To download the full opinion, click here (word)

The lawyers state in the 17 page opinion (paras 26 - 27):

"If the proposed new offence were either to be restricted to incorporated bodies or to be subject to a defence of Crown immunity, it would have the effect of excluding from the possibility of criminal liability a large number of organisations which are both
(a) public authorities for the purposes of s. 6(3)(b) of the Human Rights Act, and therefore obliged to act compatibly with Convention rights, and
(b) capable of being responsible for acts or omissions that could give rise to a violation of the right to life in Article 2.
Many of the organisations which would be outside the scope of the new offence, such as central Government departments responsible for the environment, prisons, the military, health and safety and transport, bodies responsible for the provision of health care or other care services, and certain types of school responsible for children’s education, operate in spheres where serious risks to life often arise. If such organisations are not capable of being prosecuted under criminal law in relation to deaths arising from management failures, it is in our view inevitable that the UK will, sooner or later, be found to be in breach of the procedural obligation in Article 2 and/or the obligation to provide effective remedies under Article 13, in the circumstances of a particular case."

The advice goes onto state (paras 28-29):

If unincorporated bodies were to be excluded from the scope of the proposed new offence, this would give rise to two striking anomalies. First, because most Crown bodies are unincorporated, it would have the effect of excluding most Crown bodies from the scope of the new offence. There are many organisations which are public authorities for the purposes of s. 6 of the Human Rights Act 1998 which would not fall within the ambit of the criminal law despite the fact that they had acted in a manner that was incompatible with the right to life under Article 2. The paradigm case of an organisation that is an unincorporated body is a state prison. Given that the Strasbourg case law has become consistently more emphatic about the need to render state incarceration subject to the rule of law and amenable to human rights protections (see e.g. Edwards v. United Kingdom (2002) 35 E.H.R.R. 19), it is our opinion that the omission of prisons from the proposed new offence of corporate killing would be likely to give rise to an Article 2 violation, as well as a finding under Article 13 that the provision of a civil remedy alone was not sufficiently effective
The second striking anomaly would be that, whether recourse to the criminal law is possible following a death caused by a management failure would depend entirely on the legal form of the body which is responsible for the failure causing the death. Whether the body responsible for the failure causing death is in a legal form which means it can be prosecuted bears no relation to the function it is performing. For example, a person being cared for in a care home run by an unincorporated body may be receiving care services from employees of the local authority’s social services department and from nursing staff employed by the home. If death results from a management failure on the part of the home, no recourse to the criminal law would be possible, but it would if the cause of the death was a failing of the local authority. The scope for arbitrary and unjustifiable distinctions, bearing no relation to the object and purpose of the creation of the offence, is obvious

To read what is the Government's position on unincorporated bodies and crown immunity, click here

Any reform to the law of manslaughter will have to be assessed by considering the following issues:

the nature of the offence;
which organisation will the offence apply;
will it apply to organisations that commit the offence outside Britain
what impact will it have on the conduct of company directors
what sentences will the courts have available to it
who will investigate and prosecute the offence

The legal advice sought concerns the second criteria: "to whom will the offence apply".

The advice also states that the current position on crown immunity will sooner or later lead to a violation of UK's human rights convention obligations. It states (para 18):

"Crown immunity from liability for common law crimes such as manslaughter, and for health and safety offences causing death, gives rise to a clear risk of a breach of the Convention principles set out above. Where a Crown body is responsible for causing death by gross negligence, or a breach of health and safety law which has led to death, the lack of a criminal law mechanism for holding such a body to account may well, in the circumstances, lead to a breach of the obligation in Article 2 to protect the right to life by law. The Crown Censure process is not an adequate replacement for a criminal justice process. Access to a civil remedy may not, in certain circumstances, be sufficient to discharge the State’s obligation under Article 2."

•  To find out further information, contact the CCA on 020 7 490 4494

To read about the Government's plans to reform the law of manslaughter, Click Here
To read manslaughter convictions, acquittals and ongoing cases, Click Here
To see details of recent deaths around the county, Click Here
To read about crown immunity for health and safety prosecutions, click here

The Law and proposed Reforms
Companies can under the current law be prosecuted for manslaughter. So the offence of 'corporate manslaughter' does exist in current law.

What the Government is planning to do is to enact a new offence of 'Corporate Killing'. This would allow a company (or any other employing organisation) to be prosecuted for causing a death as a result of a very serious management failure on the part of the organisation.

In effect, the new offence will make it easier to prosecute a company or other employing organisation for a homicide offence.

The reason for the proposal is that it is difficult under existing criminal law to prosecute a company - particularly large companies for manslaughter. This is because the current legal test is whether or not there is sufficient evidence to prosecute a director or senior manager (the 'controlling mind' of the company) for manslaughter (which requires evidence of 'gross negligence'). If there is sufficient evidence, the company can be prosecuted. If there is not, the company cannot be. And the company will only be found guilty of manslaughter if the individual can be found guilty of manslaughter

The guilt of a company is therefore entirely dependent upon the guilt of an individual director or senior manager.

Large companies, which delegate safety decision to managers low down the hierarchy, can escape prosecution even though there may well be serious management failures in the company that caused the death.

This is why a new offence of 'Corporate Killing' has been proposed.

The wording of the core offence was first proposed by the Law Commission in 1996, and accepted by the Government in its consultation document published in 2000.


A corporation is guilty of corporate killing if:

(a) a management failure by the corporation is the cause or one of the causes of a person's death; and
(b) that failure constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstances.

For the purposes of subsection (1) above:

(a) there is a management failure by a corporation if the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities; and
(b) such a failure may be regarded as a cause of a person's death notwithstanding that the immediate cause is the act or omission of an individual.


Companies, Unincorporated Bodies and Crown Bodies
Organisations can be divided into two types:

those that have been 'incorporated' and become a company. Most businesses are companies.
those that are not incorporated (i.e. are not companies) and are either partnerships, unincorporated associations or some other form of unincorporated body.

Most business are companies - either as a private limited company (a LTD company) or a public company (a PLC). Many not-for-profit organisations are also limited companies. Some government bodies are companies created by statute.

Many organisations are however not companies i.e. most government bodies, solicitor firms, schools, partnerships (like John Lewis)

A crown body can be either a company (one created by statute, i.e. the Health and Safety Executive, or the Royal Mint) or an unincorporated body (i.e. Departments of Government). Most crown bodies are however unincorporated bodies.

Which organisations are crown bodies? There is no clear definition of what organisation is or is not a Crown body. However, the statute that sets up an an organisation will often state 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". In contrast, 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 enabling statutes to state that the new organisation is not a crown body.

In relation to other public bodies - where the legislation does not clarify whether or not the organisation is or is not an agent of the Crown - a recent 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.

There is no doubt that Government Departments are Crown bodies. The prison service - since it is also a department within the Home Office - is also a crown body. Police forces are however not crown bodies.


The Government's position on whom the offence should apply
In 1996, the Law Commission published its recommendation that the new offence of Corporate Killing would apply only to companies. In the summer of 2000, the government published a consultation document that said that the new offence should apply to all employing organisations - except Crown Bodies - saying that the Law Commission accepted this change (see below).

However in May 2003, David Blunkett indicated a reversal of part of this policy when he announced that the new proposals would be ‘targeted at companies'.

It is understood that the reason given by the Home Office why the new offence should not apply to unincorporated bodies relates to their view that, in practice, it is difficult to prosecute UN-incorporated bodies.

However, the CCA has produced a briefing indicating that there should not be any practical difficulties in prosecuting unincorporated bodies, and indeed the law contains provisions for such prosecutions at present. To download the CCA briefing, Click here.(word document)

What the Government said in its consultation document

3.2.2 The Law Commission accepted that many unincorporated bodies are in practice indistinguishable from corporations and, arguably, their liability for fatal accidents should be the same. However, they concluded that it would be inappropriate to recommend that the offence of corporate killing extend to unincorporated bodies at present. Unincorporated associations which include partnerships, trusts (including hospital trusts), registered Friendly Societies and registered trade unions, would not be caught by the Commission's proposals. The Law Commission took the view that under the existing law, individuals who comprise an unincorporated body may be criminally liable for manslaughter - as for any other offence - and so the question of attributing the conduct of individuals to the body itself does not arise. If the Law Commission's proposal in this respect were accepted, it would not alter the present position of such organisations.
A preferred alternative - “Undertakings”
3.2.3 The Law Commission's proposals are straightforward and would bring within the ambit of the offence the main subject of public concern - companies incorporated under the Companies Act. However, as the Law Commission acknowledged, there is often little difference in practice between an incorporated body and an unincorporated association. The Law Commission's proposal could therefore lead to an inconsistency of approach and these distinctions might appear arbitrary. The Law Commission recommended limiting the proposals to corporations in the first instance before deciding whether to extend it further.
3.2.4 An alternative is that the offence could apply to “undertakings” as used in the 1974 Act. Although an “undertaking” is not specifically defined in the 1974 Act, HSE have relied on the definition provided in the 1960 Local Employment Act where it is described as “any trade or business or other activity providing employment”. This definition could avoid many of the inconsistencies which would occur if the offence was applied to corporations aggregate but not to other similar bodies.
3.2.5 Clearly, the use of the word “undertaking” would greatly broaden the scope of the offence. It would encompass a range of bodies which have not been classified as corporations aggregate including schools, hospital trusts, partnerships and unincorporated charities, as well as one or two person businesses e.g. self-employed gas fitters. In effect the offence of corporate killing could apply to all employing organisations. We estimate that this would mean that a total of 312 million enterprises might become potentially liable to the offence of corporate killing. However, such organisations are already liable to the provisions of the 1974 Act.
3.2.6 The Law Commission did not consider in detail which bodies might fall outside the definition of a corporation and have commented that they would like the offence of corporate killing to be as inclusive as possible. The Government too 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 applied to corporations. The Government is therefore inclined to the view that the offence should apply to all “undertakings” rather than just corporations.



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Page last updated on January 11, 2004