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Crown
Immunity for Manslaughter Offences under Challenge
Any
reform to the law of manslaughter must apply to all
employing organisations - including Crown Bodies,
and not just companies - in order for the Government
to avoid being in violation of its human rights obligations
according to human rights lawyers at Matrix.
The legal advice was given jointly by Tim Owen QC,
Murray Hunt and Danny Friedman.
In
response to this legal advice, David Bergman, Director
of the Centre for Corporate Accountability, said:
"It
has always been apparent that there are good public
policy reasons why any new manslaughter offence
should apply to all employing organisations
including Prisons, Government Departments, the police,
partnerships, schools, and other unincorporated
bodies. Now, it appears that the Government is required
by its own human rights laws to ensure that any
such offence should apply to them."
The
Home Office has committed itself to publishing a draft
bill by the end of December 2003 - even though there
was no mention of legal reform in last week's queen
speech. Reform to the law is a Labour Party manifesto
commitment. To read about the arguments for reform
and the proposed new offence, click
here.
The legal advice was sought by
the Centre for Corporate Accountability on hearing
that the Home Office were considering a new offence
that would only apply to companies.
| To
understand what are companies, unincorporated
bodies and crown bodies, click
here |
A
version of this advice was sent to the Home Office
last month.
The lawyers also state that the immunity provided
at present to crown bodies for the current offence
of manslaughter or for health and safety offences
(following a death) is also likely to lead to violations
of the Human Rights Act 1998 in the circumstances
of a particular case.
To
download the full opinion, click
here (word)
The
lawyers state in the 17 page opinion (paras 26 - 27):
| "If
the proposed new offence were either to be restricted
to incorporated bodies or to be subject to a defence
of Crown immunity, it would have the effect of
excluding from the possibility of criminal liability
a large number of organisations which are both |
| (a) |
public
authorities for the purposes of s. 6(3)(b) of
the Human Rights Act, and therefore obliged to
act compatibly with Convention rights, and |
| (b) |
capable
of being responsible for acts or omissions that
could give rise to a violation of the right to
life in Article 2. |
| Many
of the organisations which would be outside the
scope of the new offence, such as central Government
departments responsible for the environment, prisons,
the military, health and safety and transport,
bodies responsible for the provision of health
care or other care services, and certain types
of school responsible for children’s education,
operate in spheres where serious risks to life
often arise. If such organisations are not capable
of being prosecuted under criminal law in relation
to deaths arising from management failures, it
is in our view inevitable that the UK will, sooner
or later, be found to be in breach of the procedural
obligation in Article 2 and/or the obligation
to provide effective remedies under Article 13,
in the circumstances of a particular case." |
The
advice goes onto state (paras 28-29):
| If
unincorporated bodies were to be excluded from
the scope of the proposed new offence, this would
give rise to two striking anomalies. First, because
most Crown bodies are unincorporated, it would
have the effect of excluding most Crown bodies
from the scope of the new offence. There are many
organisations which are public authorities for
the purposes of s. 6 of the Human Rights Act 1998
which would not fall within the ambit of the criminal
law despite the fact that they had acted in a
manner that was incompatible with the right to
life under Article 2. The paradigm case of an
organisation that is an unincorporated body is
a state prison. Given that the Strasbourg case
law has become consistently more emphatic about
the need to render state incarceration subject
to the rule of law and amenable to human rights
protections (see e.g. Edwards v. United Kingdom
(2002) 35 E.H.R.R. 19), it is our opinion
that the omission of prisons from the proposed
new offence of corporate killing would be likely
to give rise to an Article 2 violation, as well
as a finding under Article 13 that the provision
of a civil remedy alone was not sufficiently effective |
| The
second striking anomaly would be that, whether
recourse to the criminal law is possible following
a death caused by a management failure would depend
entirely on the legal form of the body which is
responsible for the failure causing the death.
Whether the body responsible for the failure causing
death is in a legal form which means it can be
prosecuted bears no relation to the function it
is performing. For example, a person being cared
for in a care home run by an unincorporated body
may be receiving care services from employees
of the local authority’s social services
department and from nursing staff employed by
the home. If death results from a management failure
on the part of the home, no recourse to the criminal
law would be possible, but it would if the cause
of the death was a failing of the local authority.
The scope for arbitrary and unjustifiable distinctions,
bearing no relation to the object and purpose
of the creation of the offence, is obvious |
To
read what is the Government's position on unincorporated
bodies and crown immunity, click here
Any
reform to the law of manslaughter will have to be
assessed by considering the following issues:
| • |
the
nature of the offence; |
| • |
which
organisation will the offence apply; |
| • |
will
it apply to organisations that commit the offence
outside Britain |
| • |
what
impact will it have on the conduct of company
directors |
| • |
what
sentences will the courts have available to it |
| • |
who
will investigate and prosecute the offence |
The
legal advice sought concerns the second criteria:
"to whom will the offence apply".
The
advice also states that the current position on crown
immunity will sooner or later lead to a violation
of UK's human rights convention obligations. It states
(para 18):
"Crown
immunity from liability for common law crimes such
as manslaughter, and for health and safety offences
causing death, gives rise to a clear risk of a breach
of the Convention principles set out above. Where
a Crown body is responsible for causing death by
gross negligence, or a breach of health and safety
law which has led to death, the lack of a criminal
law mechanism for holding such a body to account
may well, in the circumstances, lead to a breach
of the obligation in Article 2 to protect the right
to life by law. The Crown Censure process is not
an adequate replacement for a criminal justice process.
Access to a civil remedy may not, in certain circumstances,
be sufficient to discharge the State’s obligation
under Article 2."
| • |
To
find out further information, contact the CCA
on 020 7 490 4494 |
| To
read about the Government's plans to reform the
law of manslaughter,
Click Here |
| To
read manslaughter convictions, acquittals and
ongoing cases,
Click Here |
| To
see details of recent deaths around the county,
Click Here |
| To
read about crown immunity for health and safety
prosecutions, click
here |
The
Law and proposed Reforms
Companies can under the current law be prosecuted for
manslaughter. So the offence of 'corporate manslaughter'
does exist in current law.
What the Government is planning to do is to enact a
new offence of 'Corporate Killing'. This would allow
a company (or any other employing organisation) to be
prosecuted for causing a death as a result of a very
serious management failure on the part of the organisation.
In
effect, the new offence will make it easier to prosecute
a company or other employing organisation for a homicide
offence.
The reason for the proposal is that it is difficult
under existing criminal law to prosecute a company
- particularly large companies for manslaughter. This
is because the current legal test is whether or not
there is sufficient evidence to prosecute a director
or senior manager (the 'controlling mind' of the company)
for manslaughter (which requires evidence of 'gross
negligence'). If there is sufficient evidence, the
company can be prosecuted. If there is not, the company
cannot be. And the company will only be found guilty
of manslaughter if the individual can be found guilty
of manslaughter
The
guilt of a company is therefore entirely dependent
upon the guilt of an individual director or senior
manager.
Large
companies, which delegate safety decision to managers
low down the hierarchy, can escape prosecution even
though there may well be serious management failures
in the company that caused the death.
This
is why a new offence of 'Corporate Killing' has been
proposed.
The
wording of the core offence was first proposed by
the Law Commission in 1996, and accepted by the Government
in its consultation document published in 2000.
| (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 subsection (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. |
|
Back
Companies,
Unincorporated Bodies and Crown Bodies
Organisations can be divided into two types:
| • |
those
that have been 'incorporated' and become a company.
Most businesses are companies. |
| • |
those
that are not incorporated (i.e. are not companies)
and are either partnerships, unincorporated
associations or some other form of unincorporated
body. |
Most
business are companies - either as a private limited
company (a LTD company) or a public company (a PLC).
Many not-for-profit organisations are also limited
companies. Some government bodies are companies created
by statute.
Many
organisations are however not companies i.e. most
government bodies, solicitor firms, schools, partnerships
(like John Lewis)
A
crown body can be either a company (one created by
statute, i.e. the Health and Safety Executive, or
the Royal Mint) or an unincorporated body (i.e. Departments
of Government). Most crown bodies are however unincorporated
bodies.
Which
organisations are crown bodies? There is no clear
definition of what organisation is or is not a Crown
body. However, the statute that sets up an an organisation
will often state whether or not a particular organisation
should be treated as acting on behalf of the Crown.
For instance the Radiological Protection Act 1970
provides that, with certain exceptions, that the Protection
Board created by the Act "shall not be taken
to be a servant or agent of the Crown of the enjoy
and status or immunity of the Crown", and the
National Health Service and Community Care Act 1990
states that "no health service body shall be
regarded as the servant or agent of the Crown or as
enjoying any status, immunity or privilege of the
Crown". In contrast, however, the Building Societies
Act 1986 states that the Building Societies Commission
performs it functions "on behalf of the Crown."
The general trend is for enabling statutes to state
that the new organisation is not a crown body.
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 - a recent Home Office
document 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.
There
is no doubt that Government Departments are Crown
bodies. The prison service - since it is also a department
within the Home Office - is also a crown body. Police
forces are however not crown bodies.
Back
The
Government's position on whom the offence should apply
In 1996, the Law Commission published its recommendation
that the new offence of Corporate Killing would apply
only to companies. In the summer of 2000, the government
published a consultation document that said that the
new offence should apply to all employing organisations
- except Crown Bodies - saying that the Law Commission
accepted this change (see below).
However in May 2003, David Blunkett indicated a reversal
of part of this policy when he announced that the
new proposals would be ‘targeted at companies'.
It
is understood that the reason given by the Home Office
why the new offence should not apply to unincorporated
bodies relates to their view that, in practice, it
is difficult to prosecute UN-incorporated bodies.
However, the CCA has produced a briefing indicating
that there should not be any practical difficulties
in prosecuting unincorporated bodies, and indeed the
law contains provisions for such prosecutions at present.
To download the CCA briefing, Click
here.(word document)
What
the Government said in its consultation document
| 3.2.2 |
The
Law Commission accepted that many unincorporated
bodies are in practice indistinguishable from
corporations and, arguably, their liability for
fatal accidents should be the same. However, they
concluded that it would be inappropriate to recommend
that the offence of corporate killing extend to
unincorporated bodies at present. Unincorporated
associations which include partnerships, trusts
(including hospital trusts), registered Friendly
Societies and registered trade unions, would not
be caught by the Commission's proposals. The Law
Commission took the view that under the existing
law, individuals who comprise an unincorporated
body may be criminally liable for manslaughter
- as for any other offence - and so the question
of attributing the conduct of individuals to the
body itself does not arise. If the Law Commission's
proposal in this respect were accepted, it would
not alter the present position of such organisations.
|
| A
preferred alternative - “Undertakings”
|
| 3.2.3 |
The
Law Commission's proposals are straightforward
and would bring within the ambit of the offence
the main subject of public concern - companies
incorporated under the Companies Act. However,
as the Law Commission acknowledged, there is often
little difference in practice between an incorporated
body and an unincorporated association. The Law
Commission's proposal could therefore lead to
an inconsistency of approach and these distinctions
might appear arbitrary. The Law Commission recommended
limiting the proposals to corporations in the
first instance before deciding whether to extend
it further. |
| 3.2.4 |
An
alternative is that the offence could apply to
“undertakings” as used in the 1974 Act.
Although an “undertaking” is not specifically
defined in the 1974 Act, HSE have relied on the
definition provided in the 1960 Local Employment
Act where it is described as “any trade or
business or other activity providing employment”.
This definition could avoid many of the inconsistencies
which would occur if the offence was applied to
corporations aggregate but not to other similar
bodies. |
| 3.2.5 |
Clearly,
the use of the word “undertaking” would
greatly broaden the scope of the offence. It would
encompass a range of bodies which have not been
classified as corporations aggregate including
schools, hospital trusts, partnerships and unincorporated
charities, as well as one or two person businesses
e.g. self-employed gas fitters. In effect the
offence of corporate killing could apply to all
employing organisations. We estimate that this
would mean that a total of 31¾2 million enterprises
might become potentially liable to the offence
of corporate killing. However, such organisations
are already liable to the provisions of the 1974
Act. |
| 3.2.6 |
The
Law Commission did not consider in detail which
bodies might fall outside the definition of a
corporation and have commented that they would
like the offence of corporate killing to be as
inclusive as possible. The Government too does
not wish to create artificial barriers between
incorporated and non-incorporated bodies, nor
would we wish to see enterprises deterred from
incorporation, which might be the case if the
offence only applied to corporations. The Government
is therefore inclined to the view that the offence
should apply to all “undertakings” rather
than just corporations. |
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