In the Queen's Speech in May the government committed to "take forward proposals to introduce an offence of Corporate Manslaughter". On 21 November sub-committees of the Parliamentary Home Affairs and Work & Pensions Committees, which are undertaking pre-legislative scrutiny of the draft Corporate Manslaughter Bill, concluded its evidence sessions with various interested parties. The evidence is published at:
http://www.publications.parliament.uk/pa/cm/cmhaff.htm
A key issue emerging in advancing the legislation is whether proposals for personal responsibilities of directors (previously shelved) might be re-introduced. Many supporters of corporate manslaughter reforms have argued for this in their evidence. The sub-committees posed the question whether supporters would accept the legislation in its current form, or face longer delays while the contentious issue of directors' duties was resolved.
Giving evidence to the sub-committees, the Home Office Minister, Fiona MacTaggart still gave no firm commitment to a date when the government would introduce a Bill into Parliament, saying the same as ministers on previous occasions that it would be "as soon as parliamentary time allows".
The draft bill for England and Wales is available at:
North of the border, progress has also been made. The report of an expert group set up by the Scottish Executive to consider whether Scotland required a similar reform has been published and is available at:
http://www.scotland.gov.uk/Publications/2005/11/14133559/35592
In short, the report suggests that a new offence of corporate killing through recklessness could be introduced into Scotland – a divergence from England, which recognises the pre-existing differences in criminal law between the two jurisdictions. This means that "organisations" (deliberately wide to include Crown bodies) whose actions or omissions in relation to policies, practices and systems of work ensuring the health and safety of employees and/or the public (if affected by the organisation’s activities), could face prosecution and possible imprisonment for directors and senior managers any deaths arising from such actions or omissions.
The expert group distinguished the criminal law north and south of the border by explaining that the Home Office proposals for England could perpetuate the problems associated in Scotland with identifying a controlling mind - the main difficulty with the current Scots law of culpable homicide.
The expert group recommended a defence whereby organisations must show that they had policies and procedures in place that should have prevented death. A further possible defence would be to demonstrate that they had a corporate culture that reinforced these policies and procedures. A majority of the expert group called for a distinct offence to deal with directors and others who are directly responsible for the death of employees or the public (to strengthen the pre existing law of corporate homicide which should still be used in the first instance). In the majority’s view there should also be a secondary offence for directors or senior managers whose actions/omissions significantly contributed to the death(s).
The majority of the expert group felt that any legislative reform should apply equally to deaths occurring in Scotland caused by organisations based outside Scotland, and to deaths caused elsewhere by organisations based in Scotland and the expert group invited the Scottish Executive to consider whether this offence should also cover serious injury and occupational illness.
The penalties proposed were extremely varied, and the expert group strongly recommended giving the courts the flexibility to match the penalty to the facts of the case – proposing corporate probation, equity fines, community orders, disqualification and imprisonment. Wider reviews of penalties for health and safety and other offenders are already underway by the HSE, available at:
http://www.hse.gov.uk/consult/condocs/penalties.htm
- and the Better Regulation Executive:
http://www.cabinetoffice.gov.uk/regulation/
The Scottish Executive has now undertaken to consider the proposals in the report and then inform the public about the next steps that the Scottish Executive will take.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 13/12/2005.
