Response to 'Reforming the law on involuntary manslaughter: the Government's proposals'

1.The need for Reform

There can be no doubt that common law involuntary manslaughter has developed in an unsatisfactory way and would benefit from codification. We are disappointed however that the government's proposal document fails to look critically at the need for a special offence of corporate manslaughter.

1.1 The Values Underlying the Existing Law

The current offence clearly carries a significant stigma, representing as it does management failure at the highest levels.

It is clear that corporate manslaughter convictions can and do succeed under the existing common law. We believe that too much has been made of the fact that prosecutions in certain high profile cases (primarily Zeebrugge and Southall) have been ultimately unsuccessful. It is clear that they failed principally for reasons for lack of evidence of serious management failures.

In proposing to reduce the threshold of blame worthiness attached to the offence, we believe the government has underestimated the effect of 'devaluing' the offence. The devaluation effect is made worse by the proposal (which we oppose see 2.3 below) that alternative to verdicts under Section 2 or 3 of the Health and Safety at Work Act 1974 should be available. If a corporate killing offence is to keep its stigma as representing the most serious of offences there should remain 'clear blue water' between it and the HSWA offences: the differential must reflect the contrasting degrees of blameworthiness.

1.2 Lack of Evidence for Deterrent Effect

We do not believe that the Law Commission or the government have undertaken any serious analysis of how deterrent effect will be achieved through a new offence. We question whether deterrence can operate at the level of inadvertence and unconscious risk taking which is the typical characteristic of workplace accidents. No evidence has been put forward to support this view.

It is instructive to consider the position in other European countries where corporations and or individuals have for a longer time been subject to prosecution for homicide under their criminal codes. If there were a significant deterrent effect one might reasonably expect to see a correlation with the data on serious accidents in those countries. In fact this is not the case as maybe seen by comparing the good record of the UK (and Ireland) with most other European countries.

1.3 Inconsistent Policy Objectives

The DTI/HSC document "Revitalising Health and Safety" and the involuntary manslaughter proposals appear to lack consistency. One of the themes behind "Revitalising Health and Safety" is the need to encourage companies to allocate to specific individuals high level management responsibilities. The corporate killing proposals offer no incentive to the most senior, or effective executives to embrace these responsibilities. They are in fact a disincentive. The corporate killing proposals will cause individuals to act defensively, and is likely to reinforce a tendency for buck passing, and it will not motivate companies to admit frankly and confront management failures which they might need to address.

Sophisticated foreign companies and investors will in our experience watch developments in this area closely. If they perceive the UK as becoming a high risk area for liability compared to other jurisdictions they are likely to set this off against more positive factors for locating and/or investing in this country.

We are aware that the lack of coherent policy behind these different government initiatives is a matter of concern to various companies and we share these views.

1.4 The Issue of Accountability

Companies are obviously accountable under specific regulatory codes governing safety of workers and the public eg the HSWA, the Consumer Protection Act and the Food Safety Act. There is no obstacle to prosecution under this legislation being taken in relation to individual fatalities or large scale disasters. Such legislation typically also makes provision for secondary offences of consent, connivance or neglect by directors, officers and senior managers. (The fact that prosecutions for such offences are rare its an important indicator of the problems that attach to personal prosecutions even where the prosecution burden of proof is low).

The issues therefore are not accountability per se but whether such offences penalise a convicted defendant. In this respect the Court of Appeal has responded to calls for companies to be fined at a realistic punitive level (R v F. Howe & Sons [1999] 2 All ER 249), and there are now many examples of substantial penalties having been imposed for workplace deaths.

We find the government's position on this issue in the corporate killing proposals unclear. References made (paragraph 3.1.5) to "an apparent perception among the public" that the law is inadequate in relation to corporate killing. It is difficult to understand such perceptions could be dealt with by the creation of a less serious corporate killing offence than common law manslaughter (as is inevitable with the weaker evidential tests involved).

The credibility of the enforcement of regulatory statutes by HSE and other agencies is undermined by the government promoting the view that they are not 'proper' criminal offences or dismissing them as failing to provide accountability.

2 Interpretation and related Problems with the Draft Corporate Killing Offence

2.1 Drafting Issues

It is unfortunate that this consultation exercise is proceeding on the basis of the Law Commission draft Bill which reflects very little of the government's thinking as set out in the proposal document. If the wording of clause 4 of the draft Bill were to be adopted we consider that there will be many problems of interpretation. Please refer to the more detailed comments set out in annex 1.

2.2 Consistency Between the Offences

If a new corporate killing offence is introduced it should retain a close link with the other proposed involuntary manslaughter offences. This can be achieved by recognising a corporate version of the offence of killing by gross negligence. The essential mental elements of this offence should be preserved - obviousness of the risk of death or serious injury (based on an objective standard) together with capability of appreciating that risk at the material time. In considering whether conduct falls far below what can be reasonably expected there should be specific provision made for consistency of approach with the concepts of tolerability of risk built into the HSWA, which are expanded upon in the Approved Code of Practice to the Management of Health and Safety at Work Regulations 1999.

2.3 Use of Alternative Offences Under HSWA

We have commented already on the negative effect of having the alternative available of conviction for health and safety offences where corporate killing is charged. An additional consideration is the practical difficulties of conducting trials in such circumstances. The nature of the HSWA offences is such that the prosecution carries the burden of proof in relation to establishing the defendant's failure to ensure safety, and the defendant must then prove on the balance of probabilities that it had done "all that was reasonably practicable" to comply with the duty (section 40 HSWA). The availability of an alternative verdict is fundamentally unfair to defendants in such circumstances since in defending the corporate killing charges there is no evidential burden upon them. (It must be appreciated that there is therefore not a proper comparison to be made with the availability of manslaughter as an alternative verdict in a murder case.)

3. Comments on Specific Questions Made

3.1 Should there be an additional involuntary homicide offence covering situations where a minor injury was all that was intended but death occurs?

The proposed "third offence" is inconsistent with the other proposed involuntary manslaughter offences. The Law Commission's approach should be supported.

3.2 Are proposed maximum penalties appropriate?

Yes, except that the five year maximum for the proposed third offence is too high and (if adopted) should be a period of up to 2 years.

3.3 Should the offence of corporate killing apply to "undertakings"?

We agree that in principle it should, but this is not as straightforward an issue as the proposal document appears to suggest (or as perhaps the HSE would argue it is). There are significant difficulties in applying the concept of liability of an undertaking in to situations where one business has contracted goods or services from another business. This matter has been a subject of House of Lords decision in R v Associated Octel Limited [1996] 1WLR 1543 which has left the law in an unsatisfactory state. The problems will be particularly acute if the corporate killing offence is alleged where the principal's conduct might be a "a cause" in relation to an accident, the main cause of which is the conduct of the contractor. These difficulties should be resolved by clarity in the legislation.

3.4 The application of Crown Immunity

Crown Immunity is a little-understood concept and although on balance we would favour the exclusion of Crown Immunity for this offence, it would be preferable for this to be dealt with in a wider view of Crown Immunity so that there is a consistent position with, for example, the Health and Safety at Work Act and other regulatory statutes. However, if Crown Immunity is not excluded, clarity will be required as to who precisely the defendant would be in any given case - ie will it be the Crown itself or a minister? If managers' offences are created as is being proposed for corporations, civil servants should be subject to the same personal liabilities.

3.5 Role of Enforcing Authorities in Investigating and Prosecuting the New Offences

We are strongly against the HSE, Environmental Health Officers or the variety of other agencies having control over these investigations and prosecutions for various reasons.

Firstly, they are not independent of government control. For the same reasons that it was considered appropriate for the Crown Prosecution Service to take over the investigation and prosecution from the police some years ago, we consider that the CPS and ultimately the DPP should exercise this role independently.

Secondly, these agencies can often have a conflict of interest in relation to their oversight of the defendant's safety arrangements (see for example the position in relation to the Ladbroke Grove rail crash).

Thirdly, we question whether HSE inspectors are not sufficiently well trained and resourced to deal with these issues; in fact it is questionable whether they are maintaining a sufficient capability to deal with their existing prosecution responsibilities under the Health and Safety at Work Act: we have recently dealt with several cases where inspectors have taken out summonses which have subsequently had to be withdrawn because of the offences charged against the defendants were based on a misunderstanding of the wording of the legislation or misapprehension of the defendant's duties.

Fourthly, experience of conducting such cases should be focused on a single prosecution body to promote consistency.

We recognise that some parts of certain regulatory agencies such as the HSE have valuable experience in assessing the adequacy of safety procedures and that there are individuals within the organisation whose evidence may be essential to a prosecution. However because, for example, the HSE can provide necessary witnesses it does not follow that they should make critical decisions about whether to prosecute such cases or conduct the proceedings themselves. There is no obstacle to the Crown Prosecution Service liaising with the HSE as they do under current arrangements in place for investigating workplace deaths (see the CPS/HSE Protocol for liaison for work-related deaths.).

3.6 Should Prosecuting Authorities Also Be Able to Take Action Against Parent or Other Group Companies?

This proposal seems to us to be misconceived. Any formulation of a corporate killing offence should be sufficient to give rise to primary liability on a part of a parent or other group company of the failure on its part causes a death. There is no case for a special secondary offence.

3.7 Action Against Individual Officers and Disqualification from Acting in Management

It should be possible for an individual officer to be prosecuted for either reckless killing or killing by gross negligence, but there is no case for a special category of secondary offence related to corporate killing. We anticipate that the government will face challenges under the Human Rights Act if individuals are subjected to proceedings in relation to "management failure" by companies which they have not been in a position to defend in the principal proceedings; this is particularly so if, as is suggested, it may be possible to move it straight to disqualification proceedings without an offence being proved on the part of the manager.

The use of existing powers of disqualification of individuals from holding office as directors, in appropriately in serious cases, are adequate. The proposal that a person may be disqualified from acting in any management role to be too broad. This could effectively deprive a person of the opportunity to earn a living and could be disproportionate to the perceived need to restrict such a person's involvement in a particular kind of activity.

3.8 Should officers of undertakings be liable to prosecution for a separate offence of substantially contributing to the corporate offence?

Please see our previous comments. The suggestion for this offence seems to go substantially further than the need to reformulate the common law manslaughter offence, and fails to deal with the difficulties that would be faced in identifying the "substantial" contributions of individual offers within a organisation. There is no reason to think that blameworthy individuals cannot be dealt with adequately within the scope of the reckless killing and killing by gross negligence offences.

3.9 Criminal proceedings continuing after formal insolvency of a company

We doubt that this proposal has been considered in sufficient detail. A company in insolvency is unlikely to have resources with which to defend itself, and unless some provision is made for its legal costs to be met there is a fundamental difficulty with "equality of arms" for the purposes of the Human Rights Act.

The suggestion that prosecuting authorities could apply to freeze company assets pending the institution of criminal proceedings appears to be flawed. It conflicts with the principle that a defendant must be treated as innocent until proved guilty. In any case, such action is bound to cause a company to cease trading - to the detriment of its creditors and employees - and its ability to defend any subsequent criminal proceedings would be seriously impaired, or more likely removed altogether.

3.10 Liability of those in undertakings other than companies and freezing assets of an undertaking

Please see our comments above - the same considerations apply.

3.11 Transmission of disease and the new offences

We do not offer a view on the transmission of disease issues except to say that there is a need for the legislation to be drafted and applied consistently and that the creation of a separate category of tramissionable diseases is likely to conflict with these goals. If any specific provision is made it should be carefully limited to a narrow category to cases of disease "transmissible disease" involving pathogens directly from one person to another so that there is not confusion with different situations (such as legionnaires disease from cooling towers or food poisoning) which should remain subject to the main offences.

CMS Cameron McKenna September 2000

Annex 1

Interpretation Problems with Clause 4 of Draft Corporate Killing Bill

1. There is a discrepancy in the standard of care between HSWA and the corporate killing offence:-

- Ensure safety 'so far as is reasonably practicable' (HSWA);

- Management failure = failure to ensure safety (clause 4);

The concept of tolerability of risk is absent from clause 4.

2. There is potential for conduct which would not be an offence under HSWA (because of the tolerability of the risk) nevertheless constituting a "management failure". The requirement for the conduct to "fall far below" what can reasonably be expected does not adequately safeguard a defendant in these circumstances.

3. The definition of "management failure" is in any case defective: if "management failure" occurs when a person's health and safety has not been ensured a "management failure" must be found in every work related death, since it can always be said that a hypothetical management action or organisational step - if it had been taken - would have ensured safety. An extreme example would be a total factory closure. This is to confuse the standard of care with the actus reus of the offence. Such an act or omission cannot logically be described as a "failure", since a failure imports the notion of a deficiency or oversight.

4. The Bill is internally inconsistent in its approach to causation. For the purposes of reckless killing or killing by gross negligence the offence is in relation to conduct which "causes" death; in clause 4 it is sufficient for the management failure to be "the cause or one of the causes" of death. Consequently,:-

(a) it could reasonably be argued by individuals prosecuted for reckless killing or killing by gross negligence that it is implicit that in these offences that their conduct must be the only or at least the main cause of the death.

(b) a company could apparently be convicted of corporate killing in circumstances where its contribution to the cause or factors in a death are minor in comparison to others, or if there has been one isolated operational failure by the defendant company against a backdrop of otherwise sound managerial practices. Trial judges will be forced to give juries detailed directions as to how to deal with the causation issue if the current wording is adopted, which (after the inevitable appeals) will result in a further complex body of case law in this area which the reform is meant to avoid.

5. The element of the offence requiring management failure to "constitute conduct falling far below what can reasonably expected of a corporation" is unsatisfactory. A jury might well consider where there has been a death that there must have been a very serious management failure. There is nothing in the wording of the clause 4 to prevent a jury from making such an inference, even though it would be a non-sequiter.

6. The "falling far below" phrase gives rise to numerous uncertainties: it is unclear how this vague standard it to be applied, whether an objective or subjective test is to be applied, and whether a standard is to be measured by reference to companies of a similar nature, size, resources, business sector or nationality. It begs the question whether a jury may have regard to the fact a risk was not obvious to a company before the death. Is consideration of evidence that would go to the issues under clause 2 (3) of the Bill (what can "reasonably be expected" in a case of killing by gross negligence) to be permitted here? It is unclear how a company would be treated which has adopted a poor management practice in good faith on professional advice (internal or external). This contrasts starkly with the provisions in relation to killing by gross carelessness (see clause 2 (1)-(3)) which highlights the essential fault - related elements that must apply to such an offence. As with the interpretation of "management failure" without clarification there is likely to be extensive judicial interpretation in order before juries can be properly directed.

7. There is a real possibility that the provisions of clause 4 as currently framed will ultimately have to be interpreted by Courts by reference to the same principles which are involved in relation to gross negligence manslaughter under the common law: on the present wording, the position is likely to be reached where directions are given to juries that what constitutes "falling far below" is essentially the same as the House of Lords ruled in Adomako . As has been noted on numerous occasions, the problem with this test is that it is essentially circular.