| 1 |
We
support the general thrust of these proposals.
However, in this response, we do propose changes
to the Bill to which we attach great importance.
|
| 2 |
The
CCA will not, in this response, deal with the
absence in the Bill of any secondary offences
for company officers. However it is important
to note that the evidence concerning the lack
of accountability of company directors for existing
offences is overwhelming – and the Government
needs to consider as a matter of urgency what
changes are required to deal with this continuing
failure. |
| 3 |
In
relation to whom the offence should apply:
| •
|
We
are supportive of the decision by the Government
to remove Crown immunity – though concerned
about how other sections of the Bill restrict
the extent to which the offence will actually
apply to them. |
| •
|
We
think that the offence should apply to all
employing organisations. |
| •
|
support the Government’s position that
the new offence should apply to police forces;
though concerned that other sections of
the Bill restrict its application to deaths
of employees. |
| •
|
do
not accept that it is necessary for activities
of the armed forces “in preparation
for” combat to be excluded from this
legislation. |
|
| 4 |
In
relation to the requirement that there to be a
breach of a relevant “Duty of care”
| •
|
We
accept the Home Office’s argument that
the management failure must be linked to
existing ‘duties” to act. |
| •
|
We
think, however, that there is a strong argument
that the gross breach in question should
not only be a breach of a ‘duty of
care’ but also a breach of the main
statutory obligations relating to safety,
in particular breaches 2-6 of the Health
and Safety at Work Act 1974. |
| •
|
we
thing that only reason to specify a list
of relevant duty of care relationships -
as set out in section 4(1) of the Bill -
would be to provide greater certainty, not
as a way of limiting the duties of care
that currently exist or may develop in the
future. We propose, therefore that there
need to be another sub-clause with words
to the effect: “or any other duty of
care”. |
| •
|
In
particular, the exemption of public bodies
involved in providing a service to members
of the public – but not ‘supplying’
a service – should be removed |
|
| 5 |
In relation to specific exemptions relating to
deaths arising from “public policy decision-making’
and ‘exclusively public functions”
| •
|
We
think that these exemptions are likely
to be found in breach of the HumanRights
Act 1998. A legal opinion states the exemptions
are: “potentially so widespread as
to introduce a substantial species of
crown immunity ‘through the back
door’ …. and we believe that
such a limited and arbitrary availability
of the new offence would be incompatible
with the European Convention on Human
Rights and the Human Rights Act …”
|
| •
|
Specifically
in relation to public policy decision-making
we think that the immunity given to those
public bodies causing deaths when the management
failure involves a decision about matters
of public policy is far too broad. When
a public authority has a duty of care or
a statutory obligation and it makes a grossly
negligent management failure involving public
policy decision making – it is our
view that the new offence should apply. |
| •
|
Specifically
in relation to the ‘exclusively public
function’ exemption, we have real principled
concerns that this clause will allow the
police and the prisons and other law enforcement
bodies (including private ones) exemption.
|
| •
|
We
do think that the Home Office is correct
in arguing that existing mechanisms of accountability
are adequate and can in any way be seen
as replacements of the need for corporate
manslaughter investigation and prosecution
in appropriate cases |
|
| 6 |
In relation to the ‘senior management failure’
test
| •
|
we
support to wording of “the way in
which any of the organisations activities
are managed or organised” as the
basis of the offence. |
| •
|
we
accept that the original Law Commission
offence was probably drawn too widely and
could have meant that any serious failure
at any level of management – including
at supervisory level – could have resulted
in the company being prosecuted for manslaughter.
|
| •
|
It
is our view however that the offence is
not so restrictive that the failure in question
must have been the responsibility of a too
narrow band of individuals. This would risk
a situation where companies would delegate
safety responsibilities to those within
the organisation that could not be deemed
to be a ‘senior manager’. We think
that the Home Office should consider the
following two changes to the offence:
| (a) |
widening
the definition of senior manager so
that in effect individuals who manage
large units, construction sites, or
factories set up by the company fall
within the definition of ‘senior
manager’. We are suggesting that
this could be done by changing the
word ‘substantial’ in clause
2(a) and (b) to ‘significant’;
and; |
| (b) |
having
an additional basis of liability by
which a company can be found guilty
of an offence – where it would
need to be shown that there was (i)
a management failure within the organisation;
(ii) that this failure was a very
serious one and a cause of the death
and (iii) that a senior manager knew
or ought to have known that there
was a management failure and did not
take reasonable steps to rectify the
failure. This proposal has some similarities
to one of the tests in the new Canadian
principle of liability. |
|
|
| 7 |
In relation to the issue of ‘causation’,
we think that the Home Office position is probably
sound but we have not been in a position to seek
legal advice on this matter. |
| 8 |
In relation to ‘assessing the Breach,:
| •
|
we
support the test of ”falling far
below what could reasonably be expected”.
|
| •
|
we
accept that there may be room to set out
criteria to assist juries in determining
whether or not an organisation’s conduct
has fallen far below what could reasonably
be expected. However we are of the view
that the criteria “sought to cause
the organisation to profit from that failure”
is problematic. We propose that it could
be changed to asking the juries to consider
“the reason for the failure” |
| •
|
we
support the general definition of “health
and safety legislation or guidance”
as set out in the Bill - though we are of
the view that it should also include other
guidance – industry or otherwise (i.e.
British Standards) that is supported by
the HSE or relevant authority. |
|
| 8 |
In
relation to jurisdiction, we think that the rules
should be widened to allow the offence to apply
to situations where the management failure took
place in Britain and the death took place abroad.
|
| 10 |
In relation to State investigation and prosecution,
the CCA supports the Government position that
investigation responsibility should remain in
the hands of the police and prosecution in the
hands of the Crown Prosecution Service |
| 11 |
In
relation to the right to a private prosecution,
we think that the Home Office should revert back
to the position as set out in the Law commission
1996 report – that there should be no requirement
to obtain the consent of the DPP. |
| 12 |
In
relation to sentencing , the CCA does not respond
to this issue in any detail – since we feel
that the Home Office has not given any proper
consideration to the many alternative options
of sentencing organisations. |
