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IAN WINTER QC
CORPORATEMANSLAUGHTER:THE 2007 ACT“I WANT TO DIE LIKE MY GRANDFATHER; PEACEFULLY
IN HIS SLEEP, NOT SCREAMING LIKE HIS PASSENGERS.”Anonymous
CLOTH FAIR CHAMBERS
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ISSUE FIVESPRING 2008PUBLISHED BY CLOTH FAIR CHAMBERS
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CLOTH FAIR CHAMBERS SPECIALISES IN
FRAUD AND COMMERCIAL CRIME, COMPLEX
AND ORGANISED CRIME, REGULATORY AND
DISCIPLINARY MATTERS, DEFAMATION AND
IN BROADER LITIGATION AREAS WHERE
SPECIALIST ADVOCACY AND ADVISORY
SKILLS ARE REQUIRED.
CLOTH FAIR CHAMBERSCLOTH FAIR CHAMBERS
3
Since 1373, when the principles of the moderncompany were enshrined and the veil of corporateimmunity first drawn, countless numbers have diedat the hands of corporate negligence, their deathsunaccounted for in the jurisprudence of our criminalcourts. It is said that globally more people die eachyear at work or as a consequence of corporate errorthan are killed in wars. In the UK alone over fortythousand people have been killed in work relatedcircumstances in the last ten years. On 6 April 2008and for the first time in over six hundred yearscompanies responsible for causing death by grossmanagement failings will themselves be guilty ofmanslaughter, not as the by-product of the grossnegligence of one of their directing minds, but asstatutory felons themselves. This will at a strokeintroduce over two million potential new UKcorporate clients into the criminal justice system.
Few could argue with the need for a new law. Theold law in relation to corporate killing required theprosecution to identify a ‘directing mind’ at a seniorlevel in the company in whom could be establishednot just the embodiment of the decisions of thecompany but also its actions. It was not possible toaggregate the various individual pieces ofnegligence for which many operatives might havebeen responsible so as to fix the company with thatcollective guilt. As a result, the larger the companyand the more complex its management structures,
the harder it was to identify a particular ‘directingmind’ who had himself or herself acted in a grosslynegligent way. As a result since 1992 only sevencompanies have ever been successfully prosecutedfor manslaughter and all of those were smallcompanies. The high profile prosecutions of thelarge companies have recorded a litany of failure:the Herald of Free Enterprise disaster in 1987, theSouthall rail disaster in 1997, the gas explosion atLarkhall in 1999, the Paddington rail crash in 1999and some twenty-seven others since 1996. TheCorporate Manslaughter Act 2007 has been enactedto deal with this problem and to fix corporatehomicide in companies whose safety managementsystems fall grossly below the duties of care theyowe. By s.20 of the Act the Common Law offenceof gross negligence manslaughter for corporations isabolished.
THE OFFENCE
Section 1 makes ‘an organisation’ guilty of corporatemanslaughter if “the way in which its activities aremanaged or organised (a) causes a person’s death,and (b) amounts to a gross breach of a relevant dutyof care owed by the organisation to the deceased”.‘Organisation’ is defined as (and only as) acorporation, a police force, a partnership/tradeunion/employers association that is an employerand the government and non government
CLOTH FAIR CHAMBERS
CORPORATE MANSLAUGHTER:THE 2007 ACT“I WANT TO DIE LIKE MY GRANDFATHER; PEACEFULLY
IN HIS SLEEP, NOT SCREAMING LIKE HIS PASSENGERS.”Anonymous
IAN WINTER QC
ALSO IN THIS ISSUETOWARDS AN AMERICAN APPROACH TOSENTENCING AND THE MANAGEMENT OF THE PRISON POPULATION by NICHOLAS PURNELL QC PAGE 14
departments listed in Schedule 1 to the Act. TheSchedule contains a long list of such bodies andincludes the Crown Prosecution Service which raisesthe intriguing prospect of the Director of PublicProsecutions having to give the consent for his ownprosecution [s.17].
‘Corporation’ includes any body corporate,wherever incorporated [s.25]. This means that thesuggestion made by some commentators in thepress, that the levels of fines for corporatemanslaughter might drive the head offices of UKcorporations abroad, is unfounded. A companywould be guilty of manslaughter and justiciable inEngland and Wales if the death occurred here as aresult of the gross breach of a relevant duty of careowed by that company to the deceased. It wouldmake no difference that the company responsible forthe death was incorporated in Panama. LimitedLiability Partnerships created under the LimitedLiability Partnerships Act 2000 (LDP’s and MDP’s) arecovered because they are bodies corporate. The Actdoes not however apply to corporations sole, so theArchbishop of Canterbury can relax!
Other partnerships are only covered by the Act ifthey employ people. Partnerships covered by thePartnership Act 1890 and limited partnershipscovered by the Limited Partnership Act 1907, if theyemploy people, are included in s.1(2)(d). Partnershipsthat do not amount to a separate legal identity arealso covered [s.14] in which case the proceedings areto be brought in the name of the partnership andnot in the name of any of the members of thepartnership. Again, liability will only fix inpartnerships that employ people. It would appeartherefore that a partnership with no employeescould not be prosecuted for corporatemanslaughter for causing the death of a person bythe gross breach of a duty of care. In practicehowever in such circumstances it would usually berelatively straightforward to fix liability in theindividual responsible for the death.
Importantly, an organisation is only guilty ofcorporate manslaughter “if the way in which itsactivities are managed or organised by its seniormanagement is a substantial element in the breach”of the duty of care [s.1(3)]. ‘Senior management’means those persons who play significant roles in“(i) the making of decisions about how the whole ora substantial part of [the organisation’s] activitiesare to be managed or organised, or (ii) the actualmanaging or organising of the whole or asubstantial part of those activities” [s.1(4)(c)]. Thismeans that management failure is at the heart of
the new offence. Companies that have safeoperating systems ought not to fall foul of the lawand certainly would not do so just because of theindividual negligence of an operative. The companythat employed the grandfather in the quotation atthe head of this article would not be liable for thedeaths of the screaming passengers unless it hadfailed to ensure that his working hours andconditions were such that he ought not to havefallen asleep.
In fact, even if those working hours and conditionswere not wholly safe the company would still notbe liable for corporate manslaughter unless theconduct that amounted to the breach of the duty ofcare fell “far below what can reasonably beexpected of the organisation in the circumstances”[s.1(4)(b)]. This preserves the essential test of liabilityidentified by the House of Lords in R v Adomako[1995 1 AC 171. It is not mere negligence thereforethat will attract criminal sanction under the Act;such negligence is actionable in the civil courts, onlynegligence so gross as to amount to criminalnegligence will result in conviction.
Because the offence concentrates uponmanagement failure – systemic failure leading to agross breach of duty – a question arises as towhether liability under the Act could be avoided bydelegation. If the board of a company delegated itssafety systems to an outside company thatspecialised in installing and running safe systems ofwork, could that delegation result in the companyescaping liability? The government believes that theanswer to this question is no but the Act does notsay so. There is no clause preventing the delegationof legal responsibility for safety management issues.A company that delegated such safety managementissues could only be prosecuted for a subsequentdeath if the decision or process that lead to suchdelegation was itself grossly in breach of a duty ofcare. It might be very difficult to criticise a companyfor outsourcing its safety management to aspecialist company. On the other hand a companythat failed to monitor the performance of thatspecialist company might be said to have actednegligently by wilfully thereafter shutting its eyes tothe safety issues. Alternatively, does it really matterwhich of the two companies is prosecuted for thedeath (assuming that the specialist safety companyis ‘an organisation’ covered by the Act)?
THE RELEVANT DUTY OF CARE
So far so good, now for the hard part. The Act onlyapplies to ‘relevant duties of care’. Not all duties of
CLOTH FAIR CHAMBERS
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care are covered by the Act and the relevant dutiesof care do not apply equally to all organisations.This is to cover organisations such as the NationalHealth Service trusts, the army and thoseperforming public functions so as to limit the extentof their liability. It was concern in relation toorganisations such as those, that lead to the delay inthe passing of the Act and the limitation of liabilityin that regard was the trade-off required for thepassing of the Act. The ‘relevant duty of care’ isdefined in terms of the law of negligence. Therelevant duties of care are as follows:
s.2(1)(a): A duty owed to the organisation’semployees or those working for it orperforming services for it.
s.2(1)(b): A duty owed as occupier of premises.
s.2(1)(c): A duty owed in respect of the supply ofgoods or services, or in connection withany construction or maintenanceoperations, or in connection with ‘anyother activity on a commercial basis’, orin connection with the use or keeping ofany plant, vehicle or other thing.
s.2(1)(d): A duty owed to someone in custody orsecure accommodation or who is beingtransported in pursuance of prisonescort arrangements or who is a detainedpatient, and that person is someone forwhose safety the organisation isresponsible.
It is clear therefore that as a result of s.2(1)(c) allactivities of a commercial nature are caught by the
Act. The following sections (ss.3-7) exempt variousorganisations from the full scope of s.2 in variousways. Further, the Act in so far as it relates to theprison service and to duties of care in respect ofprisoners, will not be brought into force with therest of the Act on 6 April 2008. No date has beenpublished for when those provisions will be in force.All the duties of care that exist under the law ofnegligence will apply to those activities conductedon a commercial basis covered by s.2(1)(c). It wouldappear therefore that the full range of negligence iscovered by the Act. This includes those areas ofnegligence where the Common Law has beenreplaced by a Statute such as the Occupiers’ LiabilityActs 1957 and 1984 and the Defective Premises Act1972. The Act does not however cover the full rangeof negligence where the activity being carried out isnot on a commercial basis. Employers’ andoccupiers’ liability will be covered in such cases butnot the wide range of negligence covered bys.2(1)(c). This is deliberate so as to exclude fromliability those public bodies performing activities forthe benefit of the community or the policy makingdecisions of central government such as the settingof regulatory standards.
The Act makes clear that whether a particularorganisation owed a duty of care to the deceased isa question of law and “the judge must make anyfindings of fact necessary to decide that question”[s.2(5)]. The Crown Court bench will therefore haveto brush up on its law of torts! This is a criticalsection of the Act. The prospect of successfullydefending a prosecution on the basis that the dutyof care was not breached will be slim: the persondied. The cases in which it might be possible toargue that the breach of the duty did not cause the
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death will be rare since the chain of causation isseldom broken by an intervening act. Once a judgehas ruled that the organisation owed a relevant dutyof care to the victim the only questions for the jurywill be whether the victim died as a result of thebreach, whether the breach was gross and whetherthe breach was as a result of the organisationalfailures of senior management. In order to make thedecision about the existence of the relevant duty ofcare the judge must resolve the relevant issues offact. Such issues of fact will be right at the heart ofthe case since what the victim and the organisationwere doing at the time of the incident, resulting indeath, will be the central facts in the case. Byresolving the factual question – as to whether whatwas happening at the time of the incident gave riseto a relevant duty of care to the victim on the partof the organisation – the judge will have resolvedthe central facts upon which the jury will decidewhether the breach of the duty was gross.
The government has recognised that decisionsabout such questions of fact are ‘usually for the jury’[Explanatory Notes to Corporate Manslaughter Act2007 ISBN 9780105619079] but considers that “Thequestions of fact that the judge will need toconsider will generally be uncontroversial and inany event will only be decided by the judge for thepurposes of the duty of care question. If theyotherwise affect the case, they will be for the juryto decide”. Given the diverse and complex nature ofthe relationships between the millions of different
organisations covered by the Act and theiremployees, sub-contractors, sub-contractor’semployees, customers, facility users and generalpassers-by, to suggest that the questions in relationto the existence of a duty of care will ‘generally beuncontroversial’ is little short of extraordinary. Toconsider that such questions of fact would notordinarily ‘otherwise affect the case’ is, it wouldappear, to misunderstand the nature of a criminaltrial. For both the judge and the jury to beseparately responsible for making findings as to thesame facts is likely to give rise to problems wheredifferent conclusions as to those facts are reached.
In the example at the head of this article the judgewould have to resolve whether the train companyowed a duty to the screaming passengers. In order todo so he might have to decide, as a fact, whether thegrandfather was an employee of the train companyat the time of the incident. Let us further assumethat there are complex issues of fact and law as towhether he was. The judge hears the evidence on avoir dire and finds that the grandfather was anemployee of the company at the time of theincident and accordingly that the company owed aduty of care to the screaming passengers.
There is no issue as to causation, the grandfather fellasleep, the train hit the buffers and all were killed.The live question for the jury is whether the breachof the company’s duty of care was gross. Obviouslythe breach of the grandfather’s duty of care wasgross but that is not the relevant duty of care for thecompany. The question in relation to the companywas whether the manner in which the company wasorganised by its senior management was asubstantial element in the grandfather fallingasleep. This may well involve consideration of thesame complex issues of fact relating to whether thegrandfather was an employee of the company at thetime of the incident e.g. had he been suspendedpending medical treatment for his narcolepsy. Thosequestions of fact will ‘otherwise affect the case’ andtherefore will be for the jury to decide as indeed isrecognised in the Explanatory Notes.
What therefore happens to the findings of fact madeby the judge? He cannot direct the jury to accept hisfindings of fact he can only direct them that as amatter of law he has found there to be a relevantduty of care. The possibility therefore plainly existsfor the jury to find core facts to be different to thoseupon which the judge has ruled there to be arelevant duty of care, not by revisiting the questionas to whether there was a duty of care but indeciding whether the breach of that duty of care
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was gross. The jury might in law therefore have toreturn a verdict of guilty notwithstanding that theydisagreed with the finding of fact upon which theruling as to the existence of the duty was based. Thejury would be bound to follow the judge’s ruling inlaw that the company owed a duty to thepassengers even though on the basis of the facts asthey had found them to be the company did not.
The overlap between these two central issues ishighlighted by s.8 of the Act. The section applieswhere “(a) it is established that an organisationowed a relevant duty of care to a person, and (b) itfalls to the jury to decide whether there was a grossbreach of that duty” [s.8(1)]. The section requiresthat the jury ‘must’ consider whether the evidenceshows that the organisation failed to comply withany health and safety legislation that relates to thealleged breach and if so how serious the failure wasand how much of a risk of death it posed [s.8(2)].The jury ‘may also’ consider the extent to which theevidence shows that there were attitudes, policies,systems or accepted practices that were likely tohave encouraged any failure to comply with anyhealth and safety legislation or to have producedtolerance of such failure and may have regard to anyhealth and safety guidance relating to the allegedbreach [s.8(3)]. The question as to whether thebreach of the duty was gross when compared to thehealth and safety legislation and the practices orattitudes in relation to it will of necessity cover thesame factual ground that the judge has covered inrelation to the existence of the duty.
But enough of the digression. The ‘relevant duty ofcare’ in s.2 is affected by two important clauses ins.2(6). Any rule of the Common Law that has theeffect of preventing a duty of care from being owedby one person to another by reason of the fact thatthey are jointly engaged in unlawful conduct is ‘tobe disregarded’. So too is any rule of the CommonLaw that has the effect of preventing a duty of carefrom being owed by one person to another byreason of his acceptance of a risk of harm. The firstof these clauses presents few problems; it would beabsurd for criminal liability for manslaughter to beavoided because of the joint illegality of the activitythat resulted in death. The second however relatesto where a person accepts the risk of harm. Thismight have ramifications for those involved inorganising dangerous activities such as motor sport.
Sections 3 to 7 exempt various organisations andcertain activities conducted by such organisationsfrom the full scope of s.2. Duties of care owed bypublic authorities in respect of any ‘decision as to
matters of public policy’ are not covered by theAct. This specifically includes decisions relating tothe allocation of public resources [s.3(1)]. It wouldappear therefore that a death in hospital caused by adecision to apply funding elsewhere would notresult in liability. Duties of care owed by publicauthorities in respect of things “done in the exerciseof an exclusively public function” are not coveredby the Act unless the duty of care is in relation toemployers’ or occupiers’ liability or in relation tosomeone for whose safety the organisation isresponsible [s.3(2)]. It would appear therefore that adeath in hospital caused by a decision to applyfunding that was not implemented would not resultin liability unless the failure to implement thedecision grossly breached duties owed as anemployer or occupier or to a person for whosesafety the hospital was responsible. Would, forexample, a gross failure to put in place propercleaning processes in the hospital so as to removethe MRSA superbug be regarded as a breach of theoccupier’s duty to provide a safe place for thoselawfully present? Would that still be the case if thepresence of the superbug was due to the ‘decision’to apply resources to holistic masseurs rather thancleaners? Is a Primary Care Trust responsible for apatient’s ‘safety’ in the sense that the patient shouldbe kept safe from the activities of a superbug?Duties of care owed by public authorities in respectof “inspections carried out in the exercise of astatutory function” are not covered by the Actunless the duty of care is owed as employer oroccupier [s.3(3)].
The Ministry of Defence is exempted from liabilityunder s.3(1) in so far as its decision-making relatesto matters of public policy and under s.3(2) in so faras its actions do not breach its duties as employerand occupier. Similarly in respect of peacekeepingoperations, terrorism operations and operations inrelation to civil unrest or serious public disorder inthe course of which members of the armed forcescome under attack or face the threat of attack orviolent resistance all liability in relation to whateverduty of care is excluded [s.4(1-2)]. Liability is alsoexcluded in relation to activities carried on inpreparation for or directly in support of suchoperations [s.4(1)(b)]. Likewise liability is excluded inrelation to training of a hazardous nature which isconsidered necessary in order to improve theeffectiveness of the armed forces in relation to suchoperations. Duties of care owed in relation tohazardous training otherwise than in preparation forpeacekeeping, terrorism, civil unrest or publicdisorder, such as the routine training to be a soldierare not exempted by the Act. All duties of care
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owed in relation to the activities of the specialforces are excluded from liability. James Bond canrelax! The Act makes no mention of liability duringwar but the law of negligence recognises thatmilitary authorities rarely owe a duty of care in suchcircumstances in any event.
Similar provisions exempt the activities of policeforces and other law enforcement bodies whenengaged in operations for dealing with terrorism,civil unrest or serious disorder as part of carryingon the activities of policing or law-enforcementand officers come under attack or face the threatof attack or of violent resistance in the course ofthose operations [s.5]. The exemption applies toany duty of care owed by a police force in relationto ‘other policing or law enforcement activities’.Such duties of care are not ‘relevant duties of care’unless owed as employer or occupier or tosomeone for whose safety the police force isresponsible. This provision [s.4(3)] is very similar tothat in s.3(3) which applies only to the exercise ofan exclusively public function. It appears thereforethat where the police are concerned, duties owedin relation to exclusively public functions areexcluded from liability under s.3(3) and in relationto all other policing or law-enforcement activitiesunder s.4(3). In neither case are the duties owed asemployer, occupier or to someone for whosesafety the police are responsible exempted fromliability. Deaths in custody would accordingly becovered by the Act either under occupier’s liabilityor because the police were responsible for thedetainee’s safety. Deaths caused by police chaseincidents would not be covered by the Act unlessone of the deceased was working for the policeforce. This could lead to the extraordinary result ofthe police force potentially being liable for thedeath of the driver of the police vehicle, himselfresponsible for the crash, but not for the primaryschool children crossing the road. The duty isowed as employer and not therefore to peoplewho are employed.
Duties of care owed by certain organisations inrespect of the way they respond to emergenciesare not relevant duties of care and are not coveredby the Act unless the duty of care is owed asemployer or occupier [s.6]. Those organisations arefire and rescue authorities and “any otherorganisation providing a service of responding toemergency circumstances”, ambulance services,blood/organs/equipment or personnel transport inpursuance of ambulance services, the armed forcesand relevant NHS bodies [s.6(e-i)]. The sectiondoes not apply however to the way in which
medical treatment is carried out or to decisionstaken in relation to the carrying out of suchtreatment [s.6(3&4)].
It is likely that such treatment and decisions wouldalready be exempt under s.3 where it amounts toan exclusively public function. Emergencycircumstances are defined by s.6(7) of the Act as“circumstances that are present or imminent and(a) are causing, or are likely to cause, serious harmor a worsening of such harm, or (b) are likely tocause the death of a person”. ‘Serious harm’includes “serious harm to the environment(including the life and health of plants andanimals)” [s.6(7)(b)]. This appears to excludeliability for a company which knocked down andkilled a pensioner whilst racing to protect sometrees from the imminent threat of being choppeddown! Subsection 8 extends the definition ofemergency circumstances to “circumstances thatare believed to be emergency circumstances”. Thiswould appear to exclude liability for the companyracing because it thought that some trees were inimminent threat of being chopped down!
Duties of care owed by local authorities, probationboards and other public authorities to children andthose covered by the Children Act 1989 and Part 1of the Criminal Justice and Court Services Act2000 are not relevant duties of care unless owedas employer, occupier or to someone for whosesafety the organisation was responsible.
It is plain therefore that the questions as towhether an organisation owed a duty of care to thevictim and if so whether the duty of care was arelevant duty of care for the purposes of the Actare complex questions of fact and law. A thoroughunderstanding of the law of negligence will berequired to resolve them plus a detailedconstruction of the Act so as to decide whetherthe organisation in question or the activity it wasperforming falls within ss.3-7. These decisionsmust be made by circuit judges and recorders andare decisions that in many cases might effectivelydetermine guilt or innocence of corporatehomicide. All the more important therefore thatcompanies and organisations involved insomeone’s death take early and high quality adviceso that such issues may be focused upon from theoutset. Perhaps more important still, thosecompanies and organisations whose activitiesexpose persons to the risk of death should addresstheir health and safety systems in the light of theAct both so as to reduce the risk of death but alsoto ensure that should a death occur the company
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can demonstrate that it did not occur as a result ofthe gross failures of senior management.
FACTORS FOR THE JURY
As has been considered above the decisions as towhether the organisation owed the deceased a dutyof care and whether that duty of care was a relevantduty of care are matters for the judge to resolveboth as to fact and law. It is for the jury to resolvequestions of causation and whether the breach ofduty that caused the death was a gross breach. Indoing so the jury ‘must’ consider whether ‘theevidence’ shows that the organisation failed tocomply with any health and safety legislation and ifso how serious was that failure and how much of arisk of death the failure posed [s.8(2)]. This meansthat the jury will have to be taken to all the healthand safety legislation, directed as to how it shouldbe read and instructed to apply the evidence as theyfind it to the relevant parts of that legislation.
Section 19 makes it clear that an indictment maycontain a count of corporate manslaughter and acount alleging a health and safety offence and thatthe jury may “if the interests of justice so require, beinvited to return a verdict on each charge”. Anorganisation may also be charged with the healthand safety offence after it has been convicted ofcorporate manslaughter in respect of ‘some or all’ ofa ‘particular set of circumstances’ if the interests ofjustice so require [s.19(2)]. It is very difficult toimagine a set of circumstances where the interests
of justice would so require a second prosecution.This provision removes the privilege against re-incrimination (autrefois convict). It will be interestingto see whether the appeal courts treat it in thesame way as they did the removal of the privilegeagainst re-trial (autrefois acquit).
The jury ‘may’ also consider the extent to which theevidence shows that there were attitudes, policies,systems or accepted practices within theorganisation that were likely to have encouraged afailure to comply with any health and safetylegislation or to have produced tolerance of suchfailure [s.8(3)]. The judge will therefore have todirect the jury that they ‘must’ consider whether afailure to comply has been proved but need not goon to consider circumstances that might havecaused that failure. It is unclear why Parliamentthought it appropriate to make the first mandatoryand the second discretionary. Both s.8(2) (themandatory part) and s.8(3) (the discretionary part)specifically relate to ‘the evidence’ in that the jurymust/may consider whether the evidence showssuch a failure and the reasons for it. Subsection (b)of s.3 allows the jury to “have regard to any healthand safety guidance that relates to the allegedbreach”. This does not mention ‘the evidence’ and asworded could mean that the jury could call to begiven health and safety guidance. It is likely that thecourts will rule that s.8(3)(b) means that the jurymay have regard to any health and safety guidancethat has been adduced in evidence. If howeverthe jury called for such guidance during the
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evidence it would appear that the judge would notbe able to refuse the request unless he could rulethat such guidance was irrelevant. In certainindustries the health and safety guidance may wellbe extensive and complex. It certainly wouldinclude any “code, guidance, manual or similarpublication that is concerned with health and safetymatters” [s.8(5)].
Section 8(4) makes it clear that the jury may haveregard “to any other matters they considerrelevant”. Again it is likely that the courts will rulethat this means ‘any other matters’ that have beenadduced in evidence. Otherwise it would meanthat the jury would determine the relevance ofevidence to be adduced and could call for whateverthey wanted. It is likely that the courts will rule thats.8(4) is simply there to prevent any argument to theeffect that s.8 had restricted the areas that the jurycould consider. In other words that s.8(4) simplypreserves the right of the jury to consider all theevidence called before it and to give such weight toit as they consider proper.
PENALTIES
There have been scare stories in the press thatconsideration is being given by the SentencingGuidance Council to recommending a tariff for thefines for corporate manslaughter of between five andten percent of a company’s turnover. This does notseem very likely since attaching a financial penalty to
turnover rather than profit could and ordinarilywould cause serious injustice. A company mayturnover billions of pounds but make only a smallprofit. How could such a company pay a fine way inexcess of the profit it makes? The proposal wouldalso fall foul of the sentencing principle that thepunishment should fit the crime rather than thecriminal. A death caused by a rich company is notmore serious than one caused by a poor companyonly because the company is rich. A crime is moreserious than another because of the manner of itscommission, in these circumstances because of thegrossness of the breach. Additionally, setting tariffssuch as those would place a value on the life of thedeceased that might have ramifications in the civilsuit that could mirror the criminal action. It would beinappropriate for the criminal courts to becomeinvolved in valuing the life of the particulardeceased. Furthermore it would not appear to beright that the company should be made to pay a fineand possibly thereby divert finances away from anycivil suit in which the victim’s family may be seekingaccess to the same pot to compensate for thenegligence involved.
In addition to a fine, the sentencing court has powerto make a ‘remedial order’ [s.9]. The prosecutionmust apply for a specific remedial order that mayorder the convicted company to take certain steps toremedy the breach or any matter that appears tohave resulted from the breach and to remedy anydeficiency in respect of health and safety matters.
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The order may be in such terms as the courtconsiders fit and the court may hear evidence inrespect of any matter before making the order.Before making an application for such an order theprosecution ‘must’ consult with the relevantenforcement authority. Whether the failure to do sowould result in an ultra vires remedial order remainsto be seen. It is probable that the courts would findthat this mandatory condition would not render asubsequent order invalid if not complied with. Theorder must specify the period of time within whichcompliance with the order must occur and suchperiod may be extended on application made priorto the expiration of the period. A company in breachof a remedial order is guilty of an offence and maybe fined but interestingly cannot in suchcircumstances be made to comply with the originalremedial order.
The court may also order that the convictedorganisation be made to publicise the fact of theconviction, the specified particulars of the offence,the amount of any fine imposed and the terms ofthe remedial order made [s.10]. Before doing so thecourt ‘must’ ascertain the views of the relevantenforcement authority and ‘must’ have regard to anyrepresentations made by the convicted organisation.It is more likely that the courts would find that afailure to comply with this requirement rendered theorder invalid. The order must specify the period oftime within which the publicity must be made butthere is no provision for that period to be extended.An organisation that fails to comply with the order isguilty of an offence and may be fined but cannot beordered to comply with the original publicity order.A company would not want its customers to knowof its conviction or of its failure to comply with theremedial order (meaning that the risk of deathcontinued). It might be more ready to be convictedof the failure to comply with the publicity order and
to pay the additional fine than it would be topublicise its negligence. In fact of course in suchcases the prospects of the matter not beingreported in any event are slim and this wouldprobably be sufficient to ensure compliance withboth the remedial order and the publicity order.
CROWN IMMUNITY AND TRANSFER OF FUNCTIONS
Currently, under the principle of Crown immunity,the Crown and its servants and agents cannot beprosecuted for gross negligence manslaughter. Thisprivilege is removed by s.11 of the Act. Departmentsand corporations that are servants or agents of theCrown are to be treated as owing whatever duties ofcare they would owe if they were a corporation thatwas not a servant or agent of the Crown. This placessuch organisations on a broadly level playing fieldwith the private sector save that public bodies havethe exceptions to liability provided in ss.3-7.
In relation to public organisations only, where adeath is alleged to have occurred in connection withthe carrying out of functions by a department orbody listed in Schedule 1 to the Act, or by acorporation that is a servant or agent of the Crownor by a police force and the functions in questionhave been transferred to another organisation thenthat new organisation may be prosecuted for thebreach of duty occasioned by the previousorganisation [s.16]. This does not apply to the privatesector for obvious reasons.
No individual may be convicted of corporatemanslaughter or of aiding, abetting, counselling orprocuring the commission of an offence ofcorporate manslaughter [s.18]. Individuals mayhowever be prosecuted under the Common Law forgross negligence or unlawful act manslaughter.
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This raises the possibility of a trial in which anindividual director or employee or director facespersonal manslaughter charges and the companyfaces corporate manslaughter charges. The issuesare of course very different and the likelihood of cut-throat defences is high. In particular thecausation issues in such a trial are very different. The personal defendant will have to be shown tohave caused the death by his gross negligence orunlawful act whereas the company will have to beshown to have caused the death by the gross breachof its duty of care to the victim brought about bythe organisational failures of senior management.
There may well be cases where neither isestablished. In some cases it may not be possible toattribute sufficient negligence in the hands of theindividual for him to be guilty of manslaughterbecause his negligence was not gross. Hisnegligence might however be sufficient to meanthat the death was not caused by the failures ofsenior management. He might, for example, havefailed to comply with safety systems but not in amanner that was gross. In such cases neither theindividual or the company could be convicted overthe death.
The Act does not legislate for this eventuality anddeliberately so. The government considered that itwould be wrong and contrary to the public interestto render organisations criminally liable for everydeath that occurs in connection with their activities.The central purpose of this Act is to ensure that
organisations address their safety systems andmanagement processes so as to become risk averse.A company that can demonstrate that its seniormanagement has focused on producing safesystems of work will be highly unlikely to beprosecuted or convicted. As such, this Act is asmuch about prevention as it is about securingconviction. The government is not expecting thereto be more than some ten to thirteen additionalprosecutions a year as a result of the new offence.
CONCLUSION
This Act is an important piece of legislation that willmake it easier to prosecute companies for grossbreaches of the duties of care they owe personswith whom they come into contact. It is imperativethat company directors and those in charge of thevarious organisations covered by the Act focus onthis legislation, understand how it affects them andput in place systems to prevent accidents and topromote safety. The mere fact of being able todemonstrate such focus will, of itself, go aconsiderable distance in defeating any prosecution.It follows that those involved in advising companiesabout their legal responsibilities will have to addadvice about this Act to the increasingly largeportfolio of guidance in respect of corporate crimethat concerns the day to day running of a company.In the light of this Act, to the noise of the screamingpassengers must now be added the thud as thedirectors put their collective heads in their hands.
CLOTH FAIR CHAMBERS
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“You said you wanted more responsibility, so I’m making you responsible foreverything that goes wrong.”
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The Lord Chancellor has invited Guy Beringer QC,Senior Partner of Allen & Overy, Christopher Murray,Senior Partner of Kingsley Napley and me to serveas the private practitioner members on theSentencing Commission Working Group under thechairmanship of Lord Justice Gage. This WorkingGroup comes into being as a consequence of theReport “Securing the Future” which, in December2007, published the findings and recommendationsof Lord Carter’s Review of Prisons.
The Report made a number of detailedrecommendations towards the efficient andsustainable use of custody in England and Walesdirected at the management, capacity andoperational efficiency of the prison estate. Inaddition, Lord Carter recommended an examinationof different ways of addressing the sentencing ofdefendants in criminal cases.
Lord Carter made this recommendation: “The Government should establish a working groupto consider the advantages, disadvantages andfeasibility of a structured sentencing framework anda permanent Sentencing Commission and report tothe Lord Chancellor and Lord Chief Justice bysummer 2008. A framework and Commission couldallow for the drivers behind the prison populationto be addressed and managed in a transparent,consistent and predictable manner through theprovision of an inclusive set of sentencing ranges.”
Lord Carter added this rider: “A structuredsentencing framework proposal does not mean that individual sentencers have to have regard to resources at the time they sentence in individual cases.”
The Working Group was appointed in the last week
of January and is meeting on a fortnightly basis atthe Home Office, supported by a secretariat drawnfrom the Ministry of Justice and the Home Office.The Chairman and some of the members of thesecretariat have paid a flying visit to two AmericanStates where Sentencing Commissions are wellestablished.
The time-table set by Lord Carter and accepted bythe Lord Chancellor defeats the description of‘tight’. Accordingly the Working Group is looking toincrease the frequency and duration of meetings inorder to consider the advantages and disadvantagesof such a radical proposal.
Importantly the time available for the essentialelement of consultation with the wider public andin order to obtain the valuable input of experiencedpractitioners will be severely curtailed. The WorkingGroup intends to issue a consultation paper at theend of March 2008 with a response deadline of the2 June 2008.
The American experience suggests that, within thecontext of State criminal justice systems, theexistence of a permanent sentencing commissionprovides a greater degree of sentencing consistencyacross the court-rooms and a higher level ofpredictability of future prison populations.Moreover in the systems which were visited, thesentencing commission is asked to provide a ‘fiscalassessment’ of the likely cost implications for alllegislative proposals for new offences before thedecision to enact such legislation is made.
The work of the Group will require a detailedexamination of the differences between theAmerican system in practice and current procedureand practice in England and Wales. There are
TOWARDS AN AMERICAN APPROACH
TO SENTENCING AND THE MANAGEMENT
OF THE PRISON POPULATION
NICHOLAS PURNELL QC
obvious differences, such as the division in Americabetween State and Federal prosecutions and theformalised plea bargaining which takes place inmore than 90% of disposals. However thesignificance of these differences has to be analysed.
Moreover a proper assessment of the waysentencing occurs in England and Wales (and anexamination and assessment of the existing methods of data collection and analysis of thesentences passed) are essential parts of theWorking Group’s studies.
Indeed for my part I need to identify andunderstand what are ‘the drivers behind the prisonpopulation’ which need to be addressed andmanaged.
A structured system of sentencing is predicatedupon a hierarchy of criminal offences which undercurrent practice we do not have.
The aim of a structured sentencing system inAmerica is to render sentences in all cases within arange of severity which is proportionate to thegravity of the offences.
In England and Wales, the sentencer approachesthe task of sentencing in a broader context, strivingto impose a penalty which reflects the justice of thecase by balancing the gravity of the offence and itsconsequences with the culpability andcircumstances of the offender.
THE CURRENT ADVISORY BODIES IN ENGLAND AND WALES
THE SENTENCING ADVISORY PANELThe work of the Sentencing Advisory Panel datesfrom its creation in the Crime and Disorder Act1998. An independent non-departmental body,drawing its membership from the judiciary andrepresentatives from the wider criminal justicesystem, the Panel has the task of consulting andproffering advice to the Court of Appeal.
THE SENTENCING GUIDELINES COUNCILSince the enactment of the Criminal Justice Act2003, the Sentencing Guidelines Council, chairedby the Lord Chief Justice and with a majorityjudicial membership, is the body to which the Panelnow reports. The Council frames or revisessentencing guidelines. The Council is only fouryears old and the process of consulting,considering and formulating guidelines is both time
consuming and necessary. As a consequence, to date there have been just three sets ofguidelines issued.
One element which is missing from the Council’swork is any requirement for the Council to haveregard to resources in framing guidelines althoughit must have regard, by reason of section 170(5) ofthe 2003 Act, to the cost of different sentencesand their relative effectiveness.
Ministerial attempts to legislate to introduce arequirement for the Council to have regard tocurrent and likely future resources when framingthe guidelines was frustrated by the 2005 GeneralElection and was not subsequently revived.
There can be little doubt that whatever the impactof a structured framework might be upon theindividual sentencer at the time of an individualsentence, one principal element of such astructured framework would be the introductionand evaluation of resource considerations into thework of the Commission. This ‘fiscal evaluation’ isseen as an important and valuable part of theAmerican sentencing commission process.
There can be no question that government has a legitimate and necessary interest in theformulation of criminal justice policy and theresource consequences of the way in which that policy is implemented by the sentence of the court.
The more interesting question, perhaps, is whetherthe framework or practice within which the judge isrequired to sentence should itself be shaped orinfluenced by resource implications.
Consistency and predictability are importantvalues. The Carter Report laments that the“complexity and uncertain effect of externalfactors makes the sentencing framework opaque.Predicting the factors that determine andinfluence sentencing is therefore difficult andinhibits government decision-making and planningon the use of finite resources.”
The tension, perhaps, is the degree to which thejudiciary should become engaged in the law-making and resource scrutiny role of a sentencingcommission and whether the judge, in passingsentence, is engaged in a function which is primarily to do justice to the case or to fit anoffender within a framework built upon a hierarchyof offence seriousness.
CLOTH FAIR CHAMBERS
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Both are legitimate ends. The contrast reflects adifference in culture and experience. The adversarialsystem within which we practise does not extend to engaging the prosecution in a pre-trial, pre-sentence process which will fix the offencewithin a comparatively narrow range. In some Statesin America this is accompanied by an automaticappellate procedure where judges ‘depart’ from the guidelines.
The judges visited in America were clear that theydid not consider that a sentencing commission andframework acted as a constraint upon theirdiscretion or individual responsibility. Whether thatwould be the reaction of the judiciary in thisjurisdiction remains to be seen.
THE NEXT STAGES
The Working Group is intending to hold a number ofmeetings with interested parties before the curtailedconsultation process begins. A meeting with thecircuit judiciary has been arranged and an openconference will be held on 30 April to which bodiesand organisations with an interest in the criminaljustice system and members of the public will beinvited to attend.
If you have views which you would like express inwriting you can submit them direct to thesecretariat by sending them to Ruth Allen, The Sentencing Commission Working Group, HomeOffice, 2 Marsham Street, London SW1P 4DF.
Lord Carter’s Review of Prisons: “Securing the Future” may be downloaded fromwww.justice.gov.uk.
If you would prefer to contribute more informallyplease do not hesitate to contact me or ChristopherMurray to make your views known.
The purpose of this advanced notice is principally to compensate for the abbreviated time-scale of the proposed consultation process and to enable Christopher, Guy and myself to access thewidest possible experience and knowledge fromfellow practitioners.
The ramifications and consequences of adevelopment of these proposals would clearly befar-reaching and constitutionally significant.
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