Crown bodies

Crown bodies, including departments of governments, will be able to be prosecuted for this new offence. This would create the only offence for which crown bodies can be charged.

The bill however sets out some significant exemptions when prosecution can not take place. These relate to either

(a)	certain kinds of decisions made by, or
(b)	certain kinds of activities carried out by, crown bodies.

Even if these particular kinds of decisions or activities caused a death, and they were the result of serious management failures, the crown body could not be prosecuted.

‘Public policy decisions’
The Bill states that no decision made by a ‘public authority’ concerning “matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests)” can allow the organisation be subject to a manslaughter prosecution.

The Bill does this by stating that such policy decisions do not create a ‘duty of care’ for the organisation towards any person that may die as a result of these decisions. This precludes the possibility of prosecution as a ‘duty of care’ is a prerequisite for the offence to have been committed (click here)

The Home Office consultation document talks of these decisions as being ‘strategic policy decisions’ – though this term is not actually used in the Bill itself. The document makes a distinction between a crown body as an employer or provider of “frontline Services” (where the crown body would have no immunity) from its role in “setting the framework within which these [services] must operate or [in] centrally procuring goods or services supplied by others.”

It should be noted that this exclusion does not just apply to crown bodies making public policy decisions. It includes all ‘public authorities’. This exception would therefore apply to policy decisions made by local councils and NHS Trusts which are not crown bodies.

Activities
Deaths resulting from certain crown body activities can not result in a prosecution against the relevant organisation. These are activities with an “exclusively public function” and are defined in the Bill as those that fall within the ‘prerogative of the crown.” This would, include for example, the provision of services in a civil emergency or the detention of prisoners; as a result deaths in prisons could not result in the prison or Home Office being subject to prosecution..

Again this exemption would not just apply to crown bodies but to all public bodies. In fact it applies wider to include even those private organisations involved in these activities. So, companies involved in running private prisons or involved in other forms of detention could not be prosecuted.

Justifications
The basic justification given by the Home Office for these exclusions is that they are more appropriately matters for “wider forms of public and democratic accountability”. The document states that

“Government departments and other public authorities are subject to a range of accountability mechanisms including through Ministers in Parliament, the Human Rights Act, public inquiries and other independent investigations, judicial review and Ombudsmen. These provide the appropriate forum for the scrutiny of such issues. A new offence needs to complement, not compete with, this accountability.”

In relation specifically to the issue of “public policy decisions’ it states that:

“the law of negligence already makes it clear that public authorities will rarely owe a duty of care where a decisions involves weighing competing public interests dictated by financial, economic, social or political factors which the courts are not in a position to reach a view on.”

In relation to prisons, the document says:

“Deaths in prisons are, for example, already subject to rigorous independent investigations through public inquests before juries and through independent reports capable of ranging widely over management issues and publishable post inquest.”