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CCA Responses to Consultation Documents
Section 7 of the CCA Response to Home office Proposals to Reform the law of Manslaughter



The Home Office proposes that British companies or organisations that commit the offence of corporate killing abroad should not be prosecuted in English/Welsh courts. We do not support this view.

This question arises in relation to a death that results from the activities of:
o an English company based in another country;
o an English company based in Britain, but with operations abroad;
o an English parent company with subsidiaries abroad

7.2 As a matter of principle and public policy, British companies that commit homicide offences abroad should be able to be prosecuted in English courts. The proposed homicide offences are so serious - whether committed by companies or individuals - that the geographic locality of the fatal injury should be irrelevant. British companies should be in the same position as British citizens who can be - and will continue to be under the Home Office proposals - prosecuted for homicide offences.
7.3 It is unclear whether the law at present does allow companies to be subject to prosecution in English courts for manslaughter offences committed abroad. This question has been untested in the courts, though in our view there are strong grounds for arguing that current law does allow courts to prosecute companies in such situations. In our view, apart from all the positive reasons why English courts should have jurisdiction over these corporate crimes, the Home Office should not reverse what is arguably the current legal position. Moreover, if it did so, it would be acting in contradiction to its own policy in relation to corruption where it is proposed that companies that commit such offences abroad should be able to be prosecuted through the English courts.

The Home Office Proposals:
In relation to its three proposed individual homicide offences - the government proposes a retention of the existing rule - that is to say individuals who commit these offences abroad can be prosecuted in this country. However, in contrast, it proposes that companies which commit the new homicide offence of "corporate killing" should not be able to be prosecuted in English courts. The Government states that:

"Companies registered in England or Wales which commit corporate killings in the course of their work abroad will not be liable to prosecution here. That would be a matter for the courts in the country concerned … [W]e recognise that this will lead to a situation where a "natural" person will be potentially liable in the English courts to prosecution for an involuntary homicide committed abroad whereas an undertaking will not.


The Government gives two reasons why it believes that courts should not have jurisdiction. First it argues that is would create too many practical problems.

"the Government considers that there would be very considerable practical difficulties if we were to attempt to extend our jurisdiction over the actions abroad of companies registered in England and Wales. These difficulties would mean that the prosecution of offences committed by English or Welsh companies within other states territory would be practically unenforceable. Our police have no authority to gather evidence abroad and contrary to the system prevailing elsewhere in Europe, where written evidence is admissible, out courts have a tradition of oral evidence and cross examination."


Secondly, it argues that it would not be appropriate for policy reasons:

".. the Government will only consider taking extra-territorial jurisdiction where dual criminality exists i.e. where the behaviour concerned constitutes an offence both here and under the laws of the country in which it happened. We apply this policy so that we cannot be accused of "exporting our laws".

7.7 The Home Office is silent on whether companies, which in addition to being prosecuted for the new offence of corporate killing, can also be prosecuted for the individual offences (through the current identification doctrine) if they commit them abroad.

The Current Legal Position
The general rule in English law is that English courts only have jurisdiction over crimes committed in England. One exception to this rule relates to homicide offences: English courts have jurisdiction over murders and manslaughters when they are committed by its 'subjects" outside England. Section 9 of the Offences against the Persons's Act 1861 states that:

"Where any murder of manslaughter shall be committed on land out of the United Kingdom … and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case … shall amount to the offence of murder or manslaughter, …"

7.9 In effect what this means - when read alongside section 3 of the British Nationality Act 1948 - is that English courts have jurisdiction to try a British Citizen who is alleged to have committed manslaughter outside England and Wales. It has been held that a person commits manslaughter at the place where the death actually occurs not where the gross negligence or recklessness takes place.

What this means is this. English courts have jurisdiction over the offence of manslaughter:

  • where it is committed by any person, as long as the death takes place in Britain (the normal rule of jurisdiction);

  • where it is committed by a British Citizen with the death occurring outside Britain. It makes no difference whether the gross negligence that caused the death took place in Britain or outside.
7.11 Companies: Any company - whether British or not - that commits manslaughter in Britain can be prosecuted in English courts. What is the situation where a company may have committed manslaughter abroad? This could arise, for example, when a British Citizen who is a considered to be a "controlling mind" of a British company commits manslaughter abroad (whether he acted with gross negligence inside or outside Britain).

Clearly as an individual, the director can be prosecuted. Whether the company can be prosecuted at the same time depends upon whether a company is considered to be a "subject of Her Majesty" - the words used in the 1861 Act. There is no legal case on this point. Black's Law Dictionary defines a "subject" as

"one that owes allegiance to a sovereign and is governed by his laws. The natives of Great Britain are subjects of the British Government. Men in free governments are subjects as well as citizens; as citizens they enjoy rights and franchises; as subjects they are bound to obey the law."


While the whole phrase "subjects of her majesty" seems to refer to citizens who are human beings, in our view, the argument that this includes legal persons (i.e. companies) is strong:

  • One way of interpreting a statute is to look to the intention of the legislature. Clearly, when the OAPA 1861 was passed the word "subject" was meant to refer to a human being since companies in those days were collections of people and did not possess the distinct legal personality of today. However, another rule of statutory interpretation is that words and concepts can be updated to take account of change in conditions. Under this latter view, one could argue that a "subject" today means a "person" - which includes legal persons like companies - with some "nationality" bonds to the country. Whilst for human persons, nationality laws determine citizenship, for legal persons, it depends on whether they have registered in England. In effect, therefore, it can be argued that "subjects of her majesty" include companies registered in Britain.

  • In addition, the concept of "subject" implies an agreement to be "subject to the laws" of the Sovereign. All companies are subject to the laws of the sovereign, but British companies, through the process of regulation, are subject to even greater level of legal control. They are therefore clearly "subjects" in this sense.

  • The term "subject" in section 9 must refer to those persons capable of committing murder or manslaughter. Not only human persons but also legal persons are now deemed capable of committing manslaughter. This is another reason why companies should be deemed to be 'subjects'.
7.14 In conclusion, there is a strong argument to suggest that under current law, English/Welsh companies that commit manslaughter abroad - through the conduct of a British citizen who is a controlling mind of the person - can be prosecuted in English courts.
7.15 Why companies should be able to be Prosecuted for Homicide Abroad
In our view, there are important reasons of principle and public policy why the government should ensure that English courts have jurisdiction to prosecute companies that commit homicide abroad.
7.16 Why the Home Office Reasoning is wrong: The Home Office gave a number of reasons why English courts should not have jurisdiction over corporate killing offences committed abroad. We set out below why the Home Office reasoning is wrong.
7.17 "Practical Reasons": In our view any practical difficulties can be overcome and should not be used as a reason to stop, in principle, the extension of jurisdiction. The Home Office argues that there would be "very considerable practical difficulties" in extending the jurisdiction in relation to the new offence of "corporate killing", which would result in these offences being "practically unenforceable". In particular it states: "Our police have no authority to gather evidence abroad and contrary to the system prevailing elsewhere in Europe, where written evidence is admissible, our courts have a tradition of oral evidence and cross examination."
7.18 However, whether this is or isn't the case, exactly the same practical difficulties exist in relation to individual homicide offences - yet the Government has not argued that these practical difficulties should result in there being no extra-territorial jurisdiction for these offences. The government has not argued why there are practical problems for "corporate" culpability, and none for "individual" culpability. Company directors could therefore be prosecuted for manslaughter committed abroad, but not the company! It is difficult to see why it would be practical to prosecute a company director who commits homicide abroad, but impractical to prosecute the company
7.19 Moreover, any so called "practical difficulties" in the investigation and prosecution of crimes committed abroad or partly abroad can be overcome. It is not uncommon for British police to be involved in the investigation of international fraud. They work in collaboration with police from other countries in many circumstances. No doubt there are practical difficulties in relation to these investigations - but they are overcome. There is nothing to suggest that most foreign states would not assist or authorise our police to gather evidence in their country in relation to possible crimes committed by English companies.
7.20 It is difficult to see why Britain's tradition of "oral evidence and cross examination" should have any bearing on the question of jurisdiction. Since evidence of the management failure may be in England, many witnesses may well already be in this country. In relation to those witnesses who live abroad, either they can be brought to Britain or they can give their evidence by a video link and be subject to cross examination.
7.21 In any case, any practical difficulties involved in proving the offence of corporate killing committed outside Britain may well be less than the difficulties involved in proving individual manslaughter committed abroad. In most traditional individual manslaughter cases, all the evidence will be located abroad - that is both the evidence of 'recklessness'/'gross negligence' and evidence about the 'cause' of the death'. However, in many cases of corporate killing committed abroad, the company in question will not only be registered but be based in Britain. Much of the evidence of the management failure - whether in board minutes, internal communications, etc. - will be in this country. Indeed the Parent company may be "directing" the offence from over here.
7.22 The investigation and prosecution of serious crimes will always be subject to practical difficulties of one kind or the other. The criminal justice system however overcomes them as otherwise it will only bring to justice offenders who commit easily detected offences. We do not want to deny that the international dimension of investigating and prosecuting corporate crime abroad will not result in some practical difficulties. The point however, is that these difficulties should not determine whether an offence should or should not have an extra-territorial dimension.
7.23 "Dual Criminality": The second reason given by the Home Office relates to the concept of "dual criminality" The Government states that it will only consider taking extra-territorial jurisdiction in relation to offences where dual criminality exists - that is to say where the offence in question is an offence both in England and in the country where the crime is said to have been committed. Although it does not state explicitly, the government implies that in its view there does not exist "dual criminality" in relation to the offence of "corporate killing"; that is to say there are no similar offences to the crime of corporate killing in other countries. It states that the reason why it applies this policy is so "that we cannot be accused of exporting our laws"

There are many problems with this argument:

  • Exporting our laws? The Home Office seems to be misusing the argument relating to "exporting laws". A country only "exports its laws" when it tries to place obligations upon companies or citizens of another country. So for example, the United States could arguably be accused of "exporting its laws" when it tried to prevent the import of Bangladesh textiles manufactured through the use of child labour. It was in effect trying to place upon Bangladesh companies an obligation - over and above the obligations imposed by Bangladesh law - to comply with US standards. In relation to the question about the extension of jurisdiction over English companies committing crimes abroad, there is however no issue of placing obligations on any company other English companies. How, then, would this country be "exporting" its laws?
  • What about individual offences?: The Government appears to assume that there is no problem of dual criminality in relation to its three individual homicide offences. This is not discussed in the consultation document, but just taken for granted. Yet, the government's assumption is dubious. Whilst most jurisdictions may well have an offence similar to one of "reckless killing" - involving subjective awareness - many will not have a homicide offence that can be proved through 'gross negligence'. Indeed even more jurisdictions will not have an offence similar to the proposed "third" homicide offence. Why is the "dual criminality" argument used in relation to the corporate but not individual homicide offences? Since the Home Office has not taken "dual criminality" into account in relation to its individual offences, then it is wrong that it should suddenly become a criteria for whether the corporate homicide offence should or should not be "extra-territorial".
  • In any case, the Home Office is wrong to assume that other jurisdictions do not have an offence which criminalises the conduct that constitutes the proposed offence of "corporate killing". All that is required to pass the dual criminality test is that the conduct in question "constitutes an offence under the law in force in that country or territory" where the offence is said to have been committed. It does not have to be an offence with a similar name, nor indeed must it necessarily be treated equally seriously by the foreign jurisdiction. All that matters it that the conduct in question is a criminal offence in the foreign jurisdiction.
7.27 This is indeed the case in relation to the offence of corporate killing. Many countries will have, for example, regulatory or other similar offences which allow for companies to be prosecuted for failing to comply with safety duties etc. In fact there may well be more countries that criminalise negligent companies than criminalise negligent individuals. This is because many countries will only criminalise negligent conduct that causes death when it is committed by companies.
7.28 Indeed, the Law Commission argued that one of the reasons why it did not believe in extra-territorial jurisdiction for the corporate killing offence, was the very fact that such conduct could result in prosecution in the foreign jurisdiction. It stated that, "we see no pressing need for such a provision, since there might well be liability under foreign law in such a case."(iii) The Home Office did not counter this view in its report; if the Law Commission view is correct - which in our view it is so - then there is no problem about dual criminality at all.
7.29 If the Home Office considers dual criminality to be such a critical issue for the corporate offence - which of course, in relation to the individual offences, it does not consider it to be - then there could be a clause in the new act stating that English courts would only have jurisdiction as long as the crime "constitutes an offence under the law in force in that country or territory". However, in our view, this is not necessary.
7.30 Home Office Inconsistency
As mentioned above, the Home Office has recently published a consultation document on reform of corruption offences. It proposed that English courts should have jurisdiction over corruption committed abroad by both British citizens and companies . How can the Home Office allow British companies that commit corruption, but not homicide, abroad to be prosecuted in English courts?

The report published a set of criteria - not even mentioned in the Home Office manslaughter report - that had previously been drawn up a few years earlier by the Home Office to assist it in considering whether offences should have extra-territorial effect. These "guidelines" had recommended that extension of jurisdiction could be considered where at least one of the following factors was present:

  • where the offence is serious (this might be defined in respect of existing offences, by referred to the length of sentence currently available).

  • where, by virtue of the nature of the offence, the witnesses and evidence necessary for the prosecution are likely to be available in UK territory, even though the offence was committed outside the jurisdiction;

  • where there is international consensus that certain conduct is reprehensible and that concerted action is needed involving the taking of extra-territorial jurisdiction;

  • where the vulnerability of the victim makes it particularly important to be able to tackle instances of the offence;

  • where it appears to be in the interests of the standing and reputations of the UK in the international community;

  • where there is a danger that offences would otherwise not be justiciable.

The Home Office does not appear to have considered it own guidelines - that it published just a few years ago - to determine whether English courts should have jurisdiction over companies that commit homicide offences abroad. Had it done so, it would have found that all these criteria exist to a greater or lesser extent, in relation to these offence.

  • Homicide is undoubtedly a very serious offence, whether it is committed by individuals or companies.

  • In many cases, the evidence of corporate killing would be in Britain, since the companies are likely to be based and have other businesses in this country

  • There is international consensus that manslaughter - whether committed by individuals or companies - is 'reprehensible'. There is also international consensus against companies who fail to comply with health and safety standards, as it indicated by:

    • the ILO "Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy";

    • the ILO Core conventions

    • the OECD "Guidelines for Multinationals Enterprises";

    • the report of the European Parliament on "EU standards for European enterprises operating in developing countries; towards a European Code of Conduct"

  • In many cases, the victims of corporate killing would be in a vulnerable position. The workers who die may well not be unionised, receiving low pay and are easily "bought" off by the company. In fact, the corruption within the criminal justice system may ensure that the company is never prosecuted

  • it is in the interests of the standing and reputation of the UK. The reputation of Britain would undoubtedly be seriously effected if it was known that British companies can commit manslaughter abroad, causing the death of foreign nationals, yet escape prosecution.

  • There is a danger that British companies that commit homicide will not be prosecuted in the foreign jurisdiction - even when offences exist. There is therefore a problem with whether these offences are "justiciable".
7.33 The Home Office must at the very least explain why it believes that the offence of "corporate killing" does not fulfil the criteria that the department has itself established.

Comparison to Civil law Practice
We have also been advised by the Solicitors Human Rights Group, that the "Government's position on the territoriality of the offence of corporate killing does not accord with current practice relating to civil claims." Whilst civil law jurisdiction issues should not necessarily determine criminal law jurisdiction questions, it is important that the Government should be aware of the anomalies that could be produced if there is too much inconsistency in the two legal regimes. In relation to civil law claims involving injury in a foreign country where the responsible company is based in England:

  • the double actionability rule - the civil version of the "dual criminality" rule - was abolished in 1996.

  • under Article 2 of the Brussels Convention 1968 (as enacted into UK law by the Civil Jurisdiction & Judgements Act 1982) "persons domiciled in a contracting state should, whatever their nationality, be sued in the courts of that state". Under Article 53 of the Convention, the "seat" of a company shall be treated as its domicile. By s.42(3) of the Civil Jurisdiction & Judgements Act 1982, a corporation or association has its seat in the UK if

    • it was incorporated or formed under the law of a part of the UK and has its registered office or some other official address in the UK; or

    • its central management and control is exercised in the UK.

  • under the draft Hague Convention on Jurisdiction and Foreign Judgements in Civil and Commercial Matters (drawn up by the Hague Conference on Private International Law) "a defendant may be sued in the courts of the state where the defendant is habitually resident" (draft Article 3). For the purposes of the Convention, a non-natural person shall be considered to be habitually resident in the state:

    • where it has its statutory seat;
    • under whose law it was incorporated or formed;
    • where it has its central administration; or
    • where it has its principal place of business
7.34 Under these conventions, therefore, if a fatal incident overseas was caused by the negligence of an English registered company any civil proceedings relating to the incident should be brought in England. However, under the Home Office's current proposals the English courts would not have jurisdiction to investigate the company for a possible charge of corporate killing - even though the same evidence would be required for both investigations and indeed may have already been obtained during the civil investigation.
7.35 In addition, the co-operation between contracting states to the above convention and draft convention also counters the Government's assertion that there would be significant practical difficulties in investigating possible incidents of corporate killing abroad.

Principle and Public Policy.
There are also important points of principle and public policy, why extra-territorial jurisdiction should exist for the corporate offence

  • Deterrence?: Without the threat of legal action and accountability, there is no incentive for English companies to improve or maintain acceptable standards of health and safety in the workplace or environment of the overseas operation. Often the vulnerable workforce, and the relatives of a deceased, will be non-unionised, have difficulty in obtaining legal representation or be intimidated against seeking a criminal investigation. The host state may have insufficient resources to conduct a criminal investigation or be reluctant to do so; even though criminal sanctions may exist on the statute books, they may therefore rarely be enforced. The current proposals, therefore, have no deterrent value for companies with dangerous overseas operations, particularly in the developing world. Yet the importance of deterrence has been acknowledged by the Home Office as being one of the reasons why it decided to allow English courts to have jurisdiction over corruption committed abroad by British citizens and companies. It stated:

    "we have also considered whether we should go further and extend nationality jurisdiction to such an offence, recognising that this could send a strong deterrent message that the UK is determined to act against corruption wherever it occurs. This is a message which would have real persuasive and dissuasive force and which would back up existing codes of conduct."

    The Home Office could use these exact words in relation to corporate homicide offences. Unless English courts have jurisdiction over corporate homicide offences, there is no action that British courts could take against companies operating abroad - however recklessly or negligently they may have acted and however many people they may have killed. There would be no deterrence.

  • Equal treatment?: If the Home Office proposals stand, companies (which are legal entities separate from the individuals which comprise them) will obtain preferential treatment compared to individuals who commit the offence of homicide. Whilst individuals that commit homicide offences outside Britain can be prosecuted in Britain, companies can escape any form of accountability for one of the most serious offences in English law. This inequality before the law is unacceptable. The same rules of jurisdiction should apply to homicide - whether committed by individuals or companies. Furthermore, if it is the case that companies under current law can now be prosecuted for manslaughter committed abroad (see above), then the Government will actually have decided to restrict jurisdiction of British courts over British companies that commit homicide offences abroad.
  • Bizarre results?: The Home Office proposals could also have bizarre results. It could well mean that although a company could not be prosecuted for the offence of corporate killing when committed abroad, a company could still be prosecuted for one of the new individual homicide offences when committed abroad. This is because if a company director or manager was prosecuted, then the identification doctrine would apply, which could mean that the company (if deemed a "subject") could be automatically prosecuted. It simply does not make sense that a company could be prosecuted for homicide in one instance but not in the other.
  • Poor Corporate Conduct: This Government increasingly recognises that some British companies do operate abroad without proper regard to the safety of workers of the public in that jurisdiction. It also acknowledges that when such behaviour takes place it is totally unacceptable. As Clare Short has stated, we cannot "tolerate abusive and hazardous working conditions, poverty pay, slave labour or the denial of the right to freedom of association." The Government is working hard to persuade British companies to operate safety and responsibly. In light of this concern, it is therefore totally inappropriate for companies to be allowed to commit homicide abroad with impunity. This is not about regulation, it is not a challenge to the Codes of Conduct. It is simply asserting that companies must not be above the law and the British courts have a proper role in taking jurisdiction over the most serious crimes that companies can commit.
7.40 o Either the offence of corporate killing is unlikely to be committed abroad by English companies (in which case the practical issues should be of little concern) or English companies do commit these offences abroad - in which case there is a public policy reason why British companies should be able to be prosecuted in British courts if no action is taken in the country where the death took place..
7.41 Multinational Companies and Jurisdiction
The issue of jurisdiction is particularly relevant to the activities of English based multinational companies. The Home Office does acknowledge that group companies are often organised so that the company carrying out the riskiest activities may have minimal assets with the parent company having de facto control over it.(vi) As noted above, the Home Office is proposing that Parent companies could be prosecuted for the offence of corporate killing. However, the proposals fail to recognise that these risky activities may well be hived of to subsidiary companies employing a dispensable "Third World" workforce. Under the current proposals, a parent company registered in the UK would not be investigated for overseas deaths ostensibly caused by its subsidiary, even where there is prima facie evidence that the parent company had de facto control over the subsidiary, and it is based in the UK with substantial assets in the UK.
7.42 The activities of MNEs in developing countries have been of considerable concern to the European Parliament (EP). In January 1999, the EP Committee on Development and Co-operation prepared a report on "EU standards for European Enterprises operating in developing countries: towards a European Code of Conduct". In this report, the Committee emphasised that company voluntary codes of conduct cannot replace or set aside national or international rules or the jurisdiction of governments and must not be used as instruments for putting MNEs beyond the scope of governmental and judicial scrutiny.

It is disapointing that the Home Office does not apparently share the view of the European Parliament that the home states of MNEs have a role and responsibility in monitoring the overseas activities of MNEs and enforcing good practice. In this age of increasing globalisation, there is a duty on the UK Government to ensure UK companies behave responsibly abroad and are held accountable for their actions. We consider extending the territoriality of the proposed offence of corporate killing would help fulfil this duty.


(i)See below para 7.30
(ii)See Criminal Justice (terrorism and Conspiracy) Act 1998 Section 5 (1)
(iii)Para 8.62, Legislating the Criminal Code: Involuntary Manslaughter, Law Com No 237
(iv)"Raising Standands and Upholding Integrity: The Prevention of Corruption: The Government's proposals for the Reform of the Criminal Law of Corruption in England and Wales" (June 2000)
(v)The proposals do not make it explicit that this would be the case, but conversations with Home Office civil servants have made it clear that this is the intenion.
(vi)Paras 3.4.5 and 3.4.6 of Home Office Consultation Document

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