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CCA Responses to Consultation Documents
Section 6 of the CCA Response to Home office Proposals to Reform the law of Manslaughter


The Home Office proposes that one groups of organisations - government departments and other organisations closely linked to the government, known as "crown bodies" - should not be able to be prosecuted for the offence of 'corporate killing'. It does however argue that crown bodies "should be held accountable where death occurs as a result of a management failure." The Home Office therefore proposes:

"to adopt an approach similar in effect to that taken in the Food Safety Act 1990. That Act applies the same standards to the Crown, thus requiring Crown Bodies to allow access to relevant enforcement agencies, but rather than applying criminal liability provides for the courts to make a deceleration of non-compliance with statutory requirements, which requires immediate action on the part of the Crown Body to rectify the shortcoming identified."


If the Food Safety Act 1990 route was applied, this in effect would mean that no Crown Body could be prosecuted for the offence of "corporate killing'; instead the High court could declare that that the Government body in question had acted 'unlawfully' and require it to remedy the situation.

We do not support the Home Office position on Crown Bodies. It is our view that crown bodies should be able to be prosecuted in the same way as other organisation. We set out below our reasons why (i) it is in the public interest for Crown Bodies to be prosecuted and (ii) why there is no legal obstacle to prevent it.

6.3 What is a Crown Body?
It is important to note that whether an organisation is a crown body - and therefore under the Government proposals able to be prosecuted for "corporate killing" - is in itself rather arbitrary..
6.4 There is no clear definition of what is a Crown body. The enabling statute of 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 - the Home Office document accurately 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.

6.6 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 Current Law
There are two types of criminal offences to be considered:

  • common law offences, like murder or manslaughter.

  • those contained in legislative statutes, like the offences contained in the Offences against the Persons Act 1861 or the HASAW Act 1974;

Common Law Offences: In relation to common law offences, there is some uncertainty whether or not "crown bodies" can be prosecuted for an offence like manslaughter. The Home Office proposal takes the view that they cannot. However, in our view, this opinion could well have been brought into question by the 1993 case of M v Home Office. This involved proceedings for contempt of court against the Home Office Minister as well as the Home Office itself. In this case, Lord Woolf stated in the House of Lords:

"The Court of Appeal were of the opinion that a finding of contempt could not be made against the Crown, a government department or a minister of the Crown in his official capacity. Although it is to be expected that it will be rare indeed that the circumstances will exist in which such a finding would be justified, I do not believe there is any impediment to a court making such a finding when it is appropriate to do so, not against the Crown directly, but against a government department or a minister of the crown in his official capacity." (emphasis added)


The case itself involved civil, not criminal contempt - and it would therefore (at first glance) not appear relevant to the prosecution of crown bodies for common law offences. However it was stated in the original court judgement - never challenged or overruled in the subsequent appeals - that:

"It is clearly established law, first that there now exists no real distinction between civil and criminal contempt, second that a civil contempt of court is a criminal offence and, third that a civil contempt must be proved to a criminal standard of proof. .... In short contempt is a drastic remedy which must be proved beyond reasonable doubt" (emphasis added)


If (a) there is no real distinction between civil and criminal contempt and (b) perhaps most importantly, a civil contempt, is in fact a criminal offence , then the fact that Lord Woolf in the House of Lords states that a department of Government could be in contempt of court, indicates that a crown body can be convicted of a "common law" offence. If this is the case, then there is no legal impediment to why, under present law, a crown body (if incorporated) could not be prosecuted for manslaughter through the prosecution of a "controlling mind".
6.11 This argument is important. The Government's general position is that the historic legal protections provided to Crown Bodies should be removed. It would therefore be inconsistent for the Government to take an even more conservative attitude than the current legal position which appears to be that crown bodies (if incorporated) could be prosecuted for manslaughter
6.12 Statutory Offences: As the law stands a crown body is not bound by the provisions of a statute - which would include those provisions creating criminal offences - unless the statute in question itself explicitly (or by 'necessary implication') states otherwise. The Offences against the Persons Act 1861 does not contain any provision relating to the Crown so the assumption is that these offences do not apply to Crown bodies (though of course they do apply to individuals including ministers ).
6.13 The Health and Safety at Work Act 1974 does however state explicitly that the sections of the Act that placed duties upon employers etc. "bind the crown" in the same way as other organisations but that those sections of the Act that allow for notices to be imposed or for employers to be prosecuted, do not bind the Crown. So Crown Bodies can not be prosecuted for offences under the Health and Safety law, though they are under a duty to abide by the law. Again individual ministers/civil servants can be prosecuted as individuals for health and safety offences.
6.14 In relation to statutory offences, the general principle therefore is that the Crown can avoid culpability for an offence contained in a statute if the statute does not explicitly state that the sections in the statute, which create the offence, apply to the Crown. This is not a historic or legal principle of "crown immunity" - as it is sometimes referred - but rather a rebuttable presumption that statutory offences do not apply to the crown. It is simply in the hands of parliament as to whether or not the Crown can be prosecuted.

In recent years, Parliament has not only increasingly "rebutted" the presumption that statutory duties should not apply to Crown bodies (as in the HASAW Act 1974) but also the presumption that Crown bodies should not be held accountable for criminal conduct. Parliament has however not gone all the way to proposing that crown bodies could be actually prosecuted for offences and be held criminally culpable. Instead it has enacted statutory provisions - in for example the Food Safety Act 1990 or the Environment Act 1995 - that allow the regulatory agency in question to take some action against crown bodies that appear to have committed regulatory offences. So for example, section 115 of the Environment Protection Act 1995 states that:

Subject to the provision of this section, this Act shall bind the Crown . ….
(3) No contravention by the Crown of any provision made by or under this Act shall make the Crown criminally liable; but the High court of in Scotland the Court of Session may, on the application of the [Environment] Agency or, in Scotland, SEPA declare unlawful any act or omission of the Crown which constitutes such a contravention."

6.16 This section goes further than the provisions contained in the Health and Safety at Work Act (which precludes any action if a crown body commits an offence), but still does not actually allow a prosecution to take place, but only a ruling in a civil court. The provision explicitly states that any declaration by the civil court would not "make the crown criminally liable."
6.17 Conversations we have had with civil servants indicate that the courts have never made any declarations of "non-compliance". Instead, when inspectors discover unlawful conduct - however serious - on the part of crown bodies, they will simply require crown bodies to agree to remedy the situation. It is clear that crown bodies are treated in a separate way from other organisations - who may, for the same conduct, be prosecuted.
6.18 Beyond the Home Office Position
In our view, the Food Safety Act route - proposed by the Home Office is an entirely inappropriate procedure in relation to the homicide offence of "corporate killing". It is our view that Crown bodies should be able to be prosecuted in the same way as other organisations. We set out the reasons below
6.19 A reversal of current law: It is our view that that there are strong grounds for arguing that incorporated crown bodies can, at present be prosecuted for manslaughter - a common law offence. If the proposed Homicide Bill becomes law and does not state that these offences do bind the crown, then all crown bodies will become immune from prosecution for all of these offences. So whilst at present, arguably, incorporated crown bodies could be prosecuted for manslaughter, the Home Office may well actually be reversing this current situation. Since incorporated crown bodies can arguably be prosecuted for manslaughter and other common law offences at present, there can be no objection in principle to allowing crown bodies to be prosecuted for the offence of corporate killing (and indeed the other offences contained in the statute)
6.20 Ministerial Accountability: An individual minister or senior civil servant can be prosecuted for manslaughter at present. If this is the case, what can the reasons be for allowing a government department to escape accountability?
6.21 Arbitrariness? It is a historically arbitrary as to whether an organisation is or isn't a crown body. It would be wrong for an organisation to be able to escape prosecution and conviction for a homicide offence simply because its originating statute stated that is was a crown body. All organisations should be treated equally. In addition, whether or not an organisation is controlled by a minister - who as an individual can anyway be prosecuted for manslaughter - should have no bearing on whether the organisation should or should not be prosecuted.
6.22 Contrast to Local Authorities: This absurdity in allowing crown bodies to be treated differently, is reflected in the way in which the law would treat local government different from central government. Local Authorities - all of which are incorporated and none of which are crown bodies - can under current law be prosecuted for manslaughter. They will continue to be able to be prosecuted for the new offence of corporate killing. Why should local government bodies be able to be prosecuted for this offence whilst similar central government bodies will not?
6.23 Unincorporated Bodies: The Home Office is proposing that unincorporated bodies should in future be prosecuted for the new offence of corporate killing. Since the government is broadening the application of the offence beyond corporations, it is appropriate that unincorporated government bodies should also be able to be prosecuted.
6.24 Not a Regulatory Offence: Homicide offences should not be treated in the same way as regulatory offences. As noted above, the sections in the Environment Protection Act 1995 and the Food Safety Act 1990 that create offences do apply to the crown but cannot result in a prosecution. A similar situation is being proposed for this new Homicide Bill. These two statutes contain offences which are no where near as serious as the offence of corporate killing: they are regulatory offences in which the crime committed is unconnected with any injury that might have been caused, and where a finding of simple negligence is sufficient to allow for a conviction. There is no necessity to prove a serious "management failure" that caused a death. Whatever the justification or rationale the Government may have for allowing Crown bodies to escape prosecution for these regulatory offences, it simply cannot serve to justify allowing Crown bodies to escape prosecution for a "homicide" offence.

Against Government Policy? Some government bodies have stated that crown bodies should be able to be prosecuted for these regulatory offences themselves. In the 1970's, the Health and Safety Commission supported the idea that crown bodies should be "prosecuted" in relation to health and safety offence. In 1978, the Commission stated:

"Crown bodies have the same obligations under the HSW Act as other employers but, unlike other employers, they can neither be issue with statutory improvement or prohibition notices, nor be prosecuted … The Chairman of the Commission has frequently drawn attention to our view that it is not right that Crown employers should be in a privileged position. From evidence given to us by the [Health and Safety] Executive we have concluded that the attitude of Crown employers to health and safety is in general no better and no worse than other employers and the same provisions relating to enforcement seem to be necessary if the legislation is to be effective in Crown establishment."

It clearly was the view of the Commission at that time that crown bodies should be able to be prosecuted like any other employer for health and safety offences. Indeed the Government has recently suggested that it may reform the HASAW Act 1974 to allow prosecution against the Crown. In a recent document the Government has stated that "the Health and Safety Commission will advise Ministers on the range of options for introducing statutory health and safety enforcement against Crown bodies." Whilst the document does go onto state the "the Food safety Act 1990 offers a possible model" - one in which prosecution is not allowed - the government appears to be considering going further than the Food Safety Act. The very fact that prosecution of Crown bodies is being considered in relation to health and safety offences, indicates how inappropriate it would be to use the Food Safety Act formula for the Homicide Bill.

6.26 Public Safety: Ensuring that Crown Bodies could be prosecuted for this offence would have important public safety benefits. It would ensure that organisations - which are crown bodies - give appropriate priority to the safety of the public. Management of crown bodies have as great an impact upon the safety of the public as do other organisations and it is important that they are deterred from placing the public at unnecessary risk. The stigma of prosecution would be an important deterrent.
6.27 Requirements of Justice: Lord Woolf, in the House of Lords case of M v Home Office, (noted above) asked what would be the point or prosecuting the Home Office for contempt? He answered, "the very fact of making such a finding would vindicate the requirements of Justice." In our view, this would be an even more important argument in relation to the far more serious homicide offence of "corporate killing". It is important that when a person has died as a result of the most serious management failures, the organisation should be able to be brought to account - whether it is a crown body or not.
6.28 Violation of Human Rights Obligations: It is also our view that the failure to allow prosecutions against crown bodies for "homicide" offences may well be in violation of the Human Rights Act 1998. Article 2 of the European Convention on Human rights requires the State to put in place effective forms of accountability mechanisms after crimes have taken place. Families of those who die as a result of conduct on the part of a crown body, that would, if it were not a crown body, make it subject to a prosecution for "corporate killing", may be able to argue that the alternative civil remedy would not fulfil the State's obligation under the Right to Life.
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Page last updated on June 9, 2003