| There
is a lot of detail that does need to be given
careful consideration - however we have the following
initial comments |
| We
welcome: |
| • |
that
there is a new test for determining whether or
not an organisation can be prosecuted for corporate
manslaughter which does not require the prosecution
of an individual director or senior manager; |
| • |
that
crown bodies will be able to be prosecuted in
principle for this offence – though we are
concerned about certain exemptions (see below); |
| • |
that
the Government intends that police will be able
to prosecuted for this offence |
| However
we have a number of concerns that we will be discussing
with the Home Office |
| • |
that
the offencewill only apply to companies and not
unincorporated bodies like unincorporated associations
or partnerships. In our view the new offence should
apply to all employing organisations – as
the Government originally agreed in its consultation
document in 2000: |
| • |
the
fact that a jury must consider whether or not
senior managers “sought to cause the organisation
to profit from that failure”. This evidence
is extremely difficult to obtain and absence of
evidence will be used by organisations to show
that their conduct was not grossly negligent. |
| • |
although
the government has removed the principle of crown
immunity – it is allowing certain government
activities to be exempt from prosecution. A particular
concern is the prison service and the armed forces.
We remain un-persuaded that there are legitimate
reasons why management failures at a senior level
within a prison or within armed forces (involving
for example in training exercises in Britain)
which lead to a death should not be subject to
a prosecution. |
| • |
the
new test requires consideration only of the senior
managers of an organisation rather than managers
at all levels. This is different from the original
test set out in the Law Commission recommendation
in 1996. We are concerned that organisations could
delegate their responsibilities down the management
chain and thereby allow the organisation to escape
manslaughter prosecution |
| • |
the
new offence does not apply to British companies
that cause death abroad. The CCA does not consider
British companies should be treated more leniently
or differently than British citizens that cause
death abroad (who can be prosecuted in the British
courts) |
| • |
there
has been a failure to consider the criminal liability
of company directors. The CCA is aware that reforms
to the offence of corporate manslaughter were
always going to focus upon the conduct of the
organisation rather than the individual. However,
the Government has not come up with any alternative
mechanisms to deal with the lack of accountability
for company directors – an issue that the
government itself considered a concern in its
original consultation document in 2000." |
