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Embargoed:
6.00 am Tuesday 28 May 2005
New Corporate Manslaughter Bill "would be incompatible
with Human Rights Act" says legal advice
The new corporate manslaughter bill runs a “real
risk” of violating human rights law unless the
Home Office changes the way the new offence applies
to crown bodies and unincorporated bodies, according
to legal advice from human rights lawyers at two barristers’
chambers.
The legal advice – given by Tim Owen Q.C. (from
Matrix Chambers) and Henrietta Hill (from Doughty
Street chambers) - was commissioned by the Centre
for Corporate Accountability and INQUEST. It forms
part of the CCA's response to the Home Office Consultation.
To see separate press
release, click here
The Government’s draft Bill would allow an organisation
to be prosecuted for an offence of ‘corporate
manslaughter’ when a death was the result of
a management failure at a senior level within the
organisation and where the failure constitutes a gross
breach of a relevant duty of care. The offence applies
to companies – whether private or statutory –
as well as those crown bodies whose names are set
out in a schedule to the Bill.
The new bill would allow, for the very first time,
crown bodies to be prosecuted for the offence. However
the Bill contains a number of exemptions that would
allow the organisation responsible for the following
types of deaths being immune from prosecution however
serious and however senior the management failure
on its part:
| • |
prisons.
in relation to deaths of prisoners; |
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police
forces. for deaths of members of the public in
their custody; |
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any
crown or other public body. for deaths of members
of the public resulting from decisions of a public
policy nature |
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the
army. in relation to deaths resulting from training
activities in preperation for combat. |
In
addition private prison escort companies and private
prisons would have a similar immunity.
The legal advice states that 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 …” [para
31 of advice]
David
Bergman said:
“It
is undeniable that the Government’s decision
to remove crown immunity was a very progressive
step. However, it is out view – confirmed by
this legal advice – that it is unsustainable
for the exemptions to be quite so extensive. Just
as the Government quite rightly says to companies
that it has nothing to worry about if they comply
with existing health and safety law, so the Government
should have no concerns about the offence applying
more wholeheartedly to them, since health and safety
law already applies to them."
Helen
Shaw, Co-Director of Inquest says
“it
is simply unacceptable that prisons and the police
forces will be immune from deaths of a member of
the public even if a death takes place as a result
of gross failures
by senior management. In our view deaths in prison
and police custody - which could be the result of
negligence - should be subject to police investigations
and possible prosecution in the same way as any
other organisation."
To
see the numbers of deaths in prison/policy custody
Restrictions
though use of ‘Duty of Care’ concept
One means by which the Bill limits the circumstances
in which public bodies can be prosecuted is through
the requirement that there must be a breach of relevant
‘duty of care’ – a concept borrowed
from the civil law of negligence – rather than,
for example, a breach of statutory legislation, like
the Health and Safety at Work Act 1974. The advice
states:
"[The]
authorities we cite above make clear that the availability
of a criminal law remedy is not determined by whether
a civil claim would also lie, but whether the nature
and gravity of the breach in question requires a
criminal remedy in of itself. Indeed Ramsahai
would indicate that the lack of availability of
an effective civil remedy is a reason which militates
in favour of there being a criminal remedy, rather
than against it;
….. there may well be situations where Convention
jurisprudence requires a criminal law remedy to
be available even if, under domestic law, the balancing
exercise dictates that no civil claim need lie;
[para 29 (ii) - (iii) of advice]
Exemptions
for deaths resulting from Policy making and Lawful
detention activities
The Bill states that deaths resulting from public
policy decisions, or from activities involving lawful
detention by the police or prison service should be
exempt from prosecution. In relation to this, the
advice states:
“[W]e
cannot accept that the premise of these exemptions
that prerogative or policy decisions should be exempt
from prosecution for the new offence - is sustainable
in Convention terms. In simple terms, if the State
is culpable for a death in the circumstances set
out in Oneryildiz, the Strasbourg jurisprudence
requires that a criminal remedy be available in
order to ensure proper vindication of Article 2,
3, 8 and 13 rights, regardless of whether the State's
"mitigation" is one based on prerogative
or policy.
There is again an Article 14 issue, because what
is being created is a further arbitrary two-tier
system of justice where the availability of a criminal
law remedy can turn on something as finely balanced
as whether the function in question stemmed from
prerogative or from policy, and we do not believe
that such a distinction can be objectively justified;
We cannot accept the Government's comment that as
there are other remedies available, such as inquests
and inquiries, an offence of corporate manslaughter
is not "an appropriate way of holding the government
or public bodies to account for matters of public
policy or uniquely public functions" (paragraph
18 of the Consultation Paper). This ignores the
fact that (a) as we have said, on some occasions
Article 2 requires a criminal remedy regardless
of the other remedies available, and regardless
of whether the Government considers it "appropriate";
and (b) in several recent high-profile cases the
domestic courts have held that the other principal
remedy, the inquest regime, is not a sufficient
means of the state discharging its Article 2 liabilities
….;
We are very concerned that many deaths in breach
of Article 2, 3 and 8 can in fact be categorised
as deaths which occurred during the exercise of
the prerogative or a power under "an enactment";
or "explained" by policy or resources
issues, which means that these two exemptions may
well have the effect of removing the vast majority
of deaths at the hands of public authorities from
the remit of the new offence. “ [para
31 (ii) - (1v) of advice]
Non-application
to Unincorporated Bodies
In relation to the bill’s lack of applicability
to unincorporated bodies, the legal advice states
that in those circumstances when criminal law remedies
are required by the European Convention on Human Rights,
previous decisions indicate that availability of a
criminal law remedy should be determined:
“not by the identity of the public body in question
but by the nature and gravity of the breach of duty”
[para 26(2) (a)]
The Advice goes onto say, in addition, that rights
should not be provided in a discriminatory manner
and that:
"Under
the system proposed by the Government the victims
of breaches of Article 2 by bodies which are not
corporations or not on the Schedule would have a
good argument that they were being discriminated
against in the attempt to vindicate those rights,
when compared with the victims of Convention breaches
by incorporated bodies or those on the Schedule;
It would be hard to see how such a distinction could
be objectively justified, especially as in the 2000
consultation the Government had accepted that the
new offence should apply to the broader category
of "undertakings" , and accepts that there
is no fundamental procedural problem with prosecuting
unincorporated bodies (paragraph 43 of the Consultation
Paper); ….
It is no answer to this issue for the Government
to say that there is no Convention "right"
to a corporate killing offence because (i) in some
circumstances there is … ; and (ii) once the
State has chosen to provide a particular system
or benefit it (even if the Convention does not require
such a system or benefit) it must do so without
discrimination … .[para 26
(iii) (b) - (d) of advice]
The Centre for Corporate Accountability is a
charity advising those bereaved from work-related
deaths, and working on issues of safety, law enforcement
and corporate accountability.
To
see numbers of deaths in prisons, click
here to get to INQUEST's website and click on
'statistics', or call Inquest's office above
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