Proposals to Reform to the Law of Manslaughter

In May 2000, the Home Office published proposals to reform the law of manslaughter.

The CCA responded to these proposals:

The Home Office proposals deal with reform of the law of involuntary Manslaughter in England and Wales. This is not currently statutory law (i.e set out in an Act of Parliament) but is law that has been developed by Judges over many years (i.e common law). The purposes of the consultation document is to propose changes to the law which can then be put on a statutory footing through an Act of Parliament.

The reforms relate to the that area of the criminal used to prosecute those who kill when they do not intend to cause death or serious injury but where they have:

(i) been extremely careless of negligent or
(ii) reckless as to whether death or serious injury occurred.

The difference between (i) and (ii) above is that extreme carelessness or negligence does not require proof that a person was aware of a risk of death or injury resulting from his or her conduct, whilst recklessness does.

Individuals
Under current law, set out in the case of Adomako and clarified by the Court of Appeal, a person can be prosecuted if it can be shown that a death was caused by a person's gross negligence or recklessness.

The Home Office is proposing to create two separate offences

• one dealing with a person who causes a death through reckless conduct - the offence of Reckless Killing,
• another dealing with a person who causes a death through gross carelessness - the offence of Gross Carelessness

It should be noted that these offences would no longer require that a 'duty of care' is proved to exist between the person accused of the offence and the person who he is alleged to have died.

Companies and other organisations
Under current law only companies can commit manslaughter, not other organisations, and even then companies can not be independently prosecuted. A company can only be prosecuted for manslaughter if an allegation of manslaughter can be proved against an individual considered to be a "controlling officer" of the company (i.e director or senior manager). There is no separate test against a company.

The Home Office proposals that a company can still be prosecuted through the prosecution of an individual director or manager, but that in addition to this, companies and any other employing organisation (other than Crown Bodies) will also be able to be prosecuted for a new offence of "corporate killing".

A company or organisation will be able to be prosecuted for this offence irrespective of whether a case can be proved against a director or senior manager.

The new offence requires that:

• There was a "management failure" in the organisation;
• that the management failure "fell far below what can be reasonably expected".
• and that the management failure was a cause of the death.

Crown Bodies: The Home Office is not of the view that Crown Bodies (like government Departments or Prisons) should be prosecuted for the offence of Corporate Killing

Action against Parent Companies: The Home Office proposed that parent companies could also be prosecuted for the offence of corporate killing.

Jurisdiction: The Home Office is not of the view that British Companies that commit the offence of Corporate Killing abroad should be prosecuted for this offence.

Investigation/Prosecution: The Home Office thinks that regulatory bodies should be in a position to investigate and prosecute companies and organisations that commit the offence of corporate killing.

Freezing Assets?: The Home Office questioned whether the Court should have the power to freeze the assets of a company to stop the possibility of them evading fines

Contributing Directors/managers: The Home Office also proposed that some further action should be able to be taken against directors and other who contributed to the organisation who committed this offence.

It suggests that where it can be shown that individuals have contributed to the management failure that has resulted in the company or organisation being convicted, action could be taken to disqualify them from acting in a management capacity in the future

The Home Office also asks for comments on whether directors and managers should be able to be prosecuted for an offence where they have contributed to the management failure.

THE OFFENCES

Reckless Killing
(1) A person who by his conduct caused the death of another is guilty of reckless killing if:

(a) he or she is aware of a risk that his or her conduct will cause death or serious injury; and
(b) it is unreasonable for him or her to take that risk having regard to the circumstances as he or she knows or believes them to be.

(2) A person guilty of reckless killing is liable on conviction on indictment to imprisonment for life.

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Killing by Gross Carelessness

(1) A person who by his conduct caused the death or another is guilty of killing by gross carelessness if:

(a) a risk that this conduct will cause death or serious injury would be obvious to a reasonable person in his position;
(b) he is capable of appreciating that risk at the material time; and
(c) either

(i) his conduct falls far below what can reasonably be expected of him in the circumstances; or
(ii) he intends by his conduct to cause some injury or is aware of, and unreasonably takes, the risk that it may do so.

(2) There shall be attributed to the person referred to in sub-section (1)(a) above:

(a) knowledge of any relevant facts which the accused is known to have at the material time; and
(b) any skill or experience professed by him.

(3) In determining for the purpose of sub-section (1)(c)(i) above, what can reasonably be expected of the accused regard shall be had to the circumstances of which he can be expected to be aware, to any circumstances shown to be within his knowledge and to any other matter relevant for assessing his conduct at the material time.

(4) Sub-section (1)(c)(ii) above applies only to the conduct causing or intended to cause the injury constituted an offence.

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Corporate Killing
(1) 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.

(2) For the purposes of sub-section (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.

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SECTIONS FROM HOME OFFICE CONSULTATION DOCUMENT

CROWN BODIES

3.2.7 There are a number of government bodies and quasi government bodies which at present are able to claim immunity from prosecution because they are said to be acting as a servant or agent of the Crown. 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 it 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 directions 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.

3.2.8 If the Government were to change the law to introduce the offence of corporate killing, then Crown bodies could not be prosecuted for the offence. However, government and quasi-government bodies should be held accountable where death occurs as a result of a management failure. The Government 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 declaration of non-compliance with statutory requirements, which requires immediate action on the part of the Crown body to rectify the shortcoming identified. The Government will consider to what extent this procedure ought to apply to the emergency services.

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CCA Views

ACTION AGAINST PARENT COMPANIES

3.4.5 The directors of each individual company in a group are required to operate it in the best interests of that company and not in the interests of the group. It has long been recognised under company law, however, that in relation to financial disclosure, a "true and fair" view of the financial position of a group of companies cannot be presented unless the parent company presents group financial statements as well as its own individual statements. Moreover, since 1986, a parent company may be liable in relation to fraudulent or wrongful trading as a shadow director.

3.4.6 The Government is concerned that it should not be possible for holding companies to attempt to evade possible liability on a charge of corporate killing through the establishment of subsidiary companies carrying on the group's riskier business which could most readily give rise to charges of corporate killing. Moreover, we are concerned by the possibility that a subsidiary company within a large group of companies might have insufficient assets to pay a large fine, and that, in such cases, liability could not be transferred to its parent company. The Government recognises that a company must be convicted on a charge of corporate killing in proper proceedings, and that such liability cannot simply be moved around within a group of companies. Equally, we believe that it is important that group structures should not be used as a mechanism for evasion.

The Government therefore proposes that the prosecuting authority should also be able to take action against parent or other group companies if it can be shown that their own management failures were a cause of the death concerned.

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JURISDICTION

3.7.1 The general rule in English law is that nothing done outside England and Wales is an offence under English criminal law. One of the statutory exceptions to this is that the English courts have jurisdiction over its subjects for offences of homicide committed abroad, which includes involuntary manslaughter. The Law Commission recommended, and the Government accepts, that this should continue to be the case in respect of reckless killing and killing by gross carelessness. The Government also propose that it would apply to the proposed third individual homicide offence.

3.7.2 In the case of corporate killing the Law Commission recommended that criminal jurisdiction should only be territorially based. This would mean that all companies, including foreign registered companies, would be subject to the jurisdiction of the English courts on the law of corporate killing providing the injury that results in death occurs in a place where the English courts have jurisdiction. However, 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.

3.7.3 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 or 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, our courts have a tradition of oral evidence and cross-examination. Furthermore, the Government will only consider taking extra-territorial jurisdiction where dual criminality exits i.e. where the behaviour concerned constitutes an offence both here and under the laws of the country in which it occurred. We apply this policy so that we cannot be accused of "exporting our laws".

3.7.4 On balance therefore the Government is inclined to accept the Law Commission's view although we 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 offence committed abroad whereas an undertaking will not. The Government will also ensure that the Law Commission's draft Bill is amended in a way that will ensure that injuries caused off-shore but within the jurisdiction of the courts in England and Wales are also caught as well as injuries on oil platforms.

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CCA Views

WHO SHOULD INVESTIGATE AND PROSECUTE THE NEW OFFENCES?

3.3.1 Under the general criminal law in England and Wales, it is the responsibility of the police to investigate allegations of criminal activity, charge the accused and pass the case to the independent Crown Prosecution Service to determine whether the charge is appropriate and whether to proceed with a prosecution. These organisations will continue to have the same powers in respect of the new offences.

3.3.2 However, there will be many instances in England and Wales where a fatality occurs at work and the expertise on the operation of the undertaking will lie with another statutory body. There are a number of areas of work and public health that are subject to enforcement by agencies under specific legislation e.g. marine safety, civil aviation and food safety. Under the 1974 Act the enforcement of health and safety at work is divided between local authorities and HSE. In cases of work related death HSE and local authority inspectors liaise closely with the police who recognise that the health and safety enforcing authorities' knowledge and expertise is essential in determining both the immediate and underlying causes of death in such cases.

3.3.3 There is nothing in the 1974 Act which specifically provides that the health and safety enforcing authorities may prosecute for manslaughter. However, the Government considers that there are strong practical reasons for considering whether it should be open to health and safety enforcing authorities to investigate and prosecute the new offences.

3.3.4 The tests for the new offence of corporate killing - whether a management failure by the corporation is the cause of death and whether that failure constitutes conduct falling far below what could be reasonably expected - correspond to those applied by the health and safety enforcing authorities in considering prosecutions for health and safety offences where they have the expertise. The investigation requirements placed on the health and safety enforcing authorities mean that they will discover in the course of their investigation whether there is sufficient evidence to warrant a charge of corporate killing. To require the police to conduct what would in effect be a parallel investigation would lead to duplication of effort. Prosecution led by the relevant enforcing authorities, such as the HSE, the Civil Aviation Authority, or the Maritime and Coastguard Agency, would avoid the complexity of current arrangements for liaison with the police and referral to the CPS and would facilitate consideration of corporate killing together with any other offences which might also be appropriate.

3.3.5 In cases where the responsibility for a death at work lies squarely with individuals, the health and safety enforcing authorities in England and Wales should continue to consider, as they do now, whether a reference to the police or CPS for a possible "reckless killing" or "killing by gross carelessness" prosecution was appropriate. However, where a major and essential element of the circumstances giving rise to an individual offence of manslaughter arises from the context of the work being done, the Government considers that there is a case for investigation and prosecution of individuals by the health and safety authorities. In cases where the HSE has identified an individual as being criminally liable for a death at work, they should continue to consider, as they do now, whether to refer the matter to the police.

The Government therefore considers that there is a good case in England and Wales for the health and safety enforcing authorities and possibly other enforcement agencies, as appropriate, to investigate and prosecute the new offences, in addition to the police and CPS. We would welcome any comments on this.

3.3.6 Who should actually investigate/prosecute in any particular case should be based on suitable working agreements to be developed between the police, CPS and the relevant authorities in each area. Such agreements have already been reached between relevant enforcement agencies and the Government sees little difficulty in the relevant agencies reaching agreement on charges relating to the new offences.

3.3.7 When a work-related death occurs there is a need to investigate the accident to determine what went wrong and to try to prevent such events in the future. This however has to be balanced against the need to prosecute anyone who may be guilty of an offence. The question of where this balance is to be found, so far as transport accidents are concerned, is being addressed in the Government's present Transport Safety Review, and was the subject of a separate consultation by the Department of the Environment Transport and the Regions (DETR) during 1999. On the aviation side accident investigations are undertaken by the DETR's Air Accidents Investigation Branch, and on the maritime side by its Marine Accident Investigation Branch. Each is concerned solely with establishing an accident's cause, and with learning and promulgating as quickly as possible any lessons for the future. Neither has any prosecuting functions, which lie instead with the Civil Aviation Authority and Maritime and Coastguard Agency, respectively. Rail accidents are investigated by Her Majesty's Railways Inspectorate (part of the HSE), whose investigations are directed towards both the establishment of cause and, if appropriate, possible prosecution under the 1974 Act. The British Transport Police separately investigate possible crimes such as manslaughter.

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CCA Views

FREEZING ASSETS?

3.4.14 The Government is concerned that the directors of a company, or of a parent company, should not be able to evade fines or compensation orders, or otherwise frustrate corporate killing proceedings, by dissolving the company or by deliberately making it insolvent. It might be necessary to ensure that criminal proceedings in relation to corporate killing can continue to completion notwithstanding the formal insolvency of the company.

3.4.15 Another possibility would be to provide for proceedings which would "freeze" the property and assets of companies. Such proceedings could be similar to the charging and restraint orders under the drug trafficking offences legislation. In the case of corporate killing, it might be necessary to allow the prosecuting authority to take action to freeze company assets before criminal proceedings were started to prevent the directors or shadow directors of the company transferring assets in the knowledge that it had been involved in a death which might give rise to a corporate killing charge.

3.4.16 However, such proposals would represent a significant extension of the powers available in such a situation. The legislation at present only allows for assets arising from the proceeds of crime to be frozen. Furthermore, if the Government were to propose the availability of such powers, it would have to be compliant with the European Convention of Human Rights. A fundamental principle of English law, which is also contained in the European Convention of Human Rights, is that a person (which included a legal person) is innocent until proven guilty. The Government therefore considers that the availability of such powers to the court in all circumstances may not be justified. However, one possibility might be to allow the Court to use such powers where a plea of guilty had been entered where you would know what the likely penalty was and therefore could freeze that portion of the assets.

The Government would welcome views on whether criminal proceedings should be allowed to continue after the formal insolvency of a company. We would also welcome views on whether it would ever be appropriate to permit the prosecuting authority to institute proceedings to freeze company assets pending the institution of criminal proceedings on a charge of corporate killing.

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ENFORCEMENT ACTION AGAINST A DIRECTOR OR OTHER COMPANY OFFICER

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CCA Views