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.

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.

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)

6.10

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."

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.