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Government's
Plans on Reform to the law of Manslaughter
This
page is updated whenever there are any developments,
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| Last
updated: Tuesday 20 May, 10.30 am |
This
page sets out 'where the Government is now' with its
plans to reform the law of manslaughter, and what
the plans actually are.
Is
there anything new what Home Office Ministers have
announced this week in the debate on the Criminal
Justice Bill?
It appears not. The Government is simply recommitting
itself to its previous commitments to publish a draft
bill that would create a new offence of 'Corporate
Killing' and to introduce legislation before parliament
soon.
There is no specific timetable mentioned about when
a Bill will be introduced before parliament. There
is no commitment for example about whether it will
be part of the Queen's Speech in October, which is
crucial to when the offence will actually be on the
statute books.
Summary
of current legal position
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.
Is
there consensus on the wording of the new offence?
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. To see the Core offence proposed by the Law
Commission, Click Here
It
has also been accepted by trade unions, most safety
organisations and some employer organisations.
What
are the issues in contention in terms of the offence?
| • |
does
it apply to all employing organisations, or only
private companies.
The Law Commission said it should only apply to
companies, but the Government, in its consultation
document, said it should apply to all employing
organisations. |
| •
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does
it apply to crown bodies, or are they excluded
from its application.
The Government in its consultation document said
it should not apply to Crown bodies, but in the
responses to the Government's consultation documents
employer organisations, unions and other respondees
were almost all of the view that crown bodies
should not be exempt |
| •
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does
it apply to British companies that commit the
offence abroad.
It is current law that British citizens that commit
the offence of manslaughter abroad can be prosecuted
in Britain, but in its consultation document the
Government was not of the view that British companies
that commit the offence abroad should be able
to be prosecuted in Britain. |
| •
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Can
directors be prosecuted for 'contributing' to
an offence of 'Corporate Killing
The
Government in its consultation document said that
it was considering created an additional offence
which would allow a director to be prosecuted
if it could be shown that the director or senior
manager had 'contributed to' or 'significantly
contributed' to the offence committed by the company.
However, more recently, the Government in
a letter to companies as part of its 'regulatory
impact assessment' stated that it no longer supported
such a reform. |
| •
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Who
will investigate and prosecute the offence.
Currently manslaughter is investigated by the
police with the assistance of the Health and Safety
Executive or other regulatory agency. It is then
prosecuted by the Crown Prosecution Service. The
Government proposed in its consultation document
that apart from in the case of disasters, the
police's role in the investigation would be minimised
and investigation responsibility would pass to
the HSE or other regulatory body. The HSE would
also be responsibility for its prosecution |
Is
the term 'corporate manslaughter' and 'corporate killing'
interchangeable?
Not really. The term corporate manslaughter concerns
when companies are prosecuted for the existing offence
of manslaughter. The term 'Corporate Killing' is the
name the Law Commission gave to the new offence that
it proposed in its 1996 report. It is therefore somewhat
confusing to state - as is sometimes stated - that
the Government is 'bringing in a new offence of corporate
manslaughter'.
For
more information
| • |
To
see the original Guardian story, click
here |
| • |
To
read about the current law of manslaughter, Click
Here |
| • |
To
see details of manslaughter convictions, acquittals
and on-going cases, Click
Here |
| • |
To
read about the proposed new offence of 'corporate
killing' click
here |
| • |
To
read a briefing setting out the arguments for
reform in the law, click
here |
To
contact the CCA: 0207 490 4494
The
Core Offence of '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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