The proposed bill aims to fill an important gap in UK justice. However, in our estimation, the draft has been framed in an unnecessarily narrow way. There are several areas, which we detail below, where the bill could be altered to ensure both clarity and greater justice and to extend culpability to protect employees from well recognised occupational diseases with specific and traceable causes without becoming too unwieldy, unworkable or burdensome.

1.  INDIVIDUAL LIABILITY

  In the pre-amble to the Draft Bill, the Government's concern in the 2000 Home Office consultation that reforming the criminal liability of companies without imposing new punishments upon company officers would be insufficient for the purposes of deterrence is noted. The Draft Bill further notes that "these proposals received a great deal of comment from respondents, with strong opinions on both sides and views evenly split", and therefore rejects the call for an individual offence for senior officers. This is an unsatisfactory conclusion however, since the fact that there were two opposing sides on this issue is hardly surprising. In the consultation exercise, employers' organisations argued vociferously against individual liability. Those groups with an interest in the protection of workers and members of the public (such as trade unions and victims organisations) argued equally vociferously for individual liability. The representatives of those likely to be prosecuted by a new law will rarely lend strong support to tough laws that expose their members to criminal penalties. Instead of skirting around the most controversial issues simply because there is no consensus, the reform process needs to remain focussed on the effectiveness of the proposed law.

  The Draft Bill already expressly excludes individuals from culpability and stipulates that "an individual cannot be found guilty of aiding, abetting, counselling or procuring an offence of corporate manslaughter." This stands in stark contrast to the Canadian government which noted that under their new legislation a corporate executive or board member can also be liable under the Criminal Code for aiding or abetting an offence, for counselling a person to be a party to an offence or being an accessory after the fact to an offence. The Australian Capital Territory (ACT) enacted a separate individual offence in the Crimes (Industrial Manslaughter) Amendment Bill 2003 to allow for the prosecution of "senior officers" if they negligently or recklessly caused the death of a worker. Senior officers face a maximum penalty of 25 years imprisonment if they are convicted. The exclusion of a specific offence for directors and senior managers in our view represents a major weakness in the bill because key decision makers in corporations are able to use the corporate shell to conduct unlawful business with impunity. The liability of individual senior officers is a crucial component of any law reform programme, because of its deterrent effect. Without individual liability, a company can be used to commit crime with relative impunity, especially if it is only exposing itself to fines (which expressed as a proportion of revenue often equate to exceptionally small sums for larger companies) or low-level remedial orders. Corporate deterrence is therefore likely to be weak unless it is linked to individual liability.

  The importance of enabling individual liability is widely acknowledged by the wider public, where individual liability is supported in polls of the general public and senior executives and directors themselves when asked as part of a confidential survey. A UK-wide MORI poll commissioned by the Transport and General Workers Union in 2003 found that 65% of people agreed with the statement that "workplace safety will only improve if company directors can be prosecuted for a serious criminal offence like manslaughter." The same proportion supported the introduction of corporate killing with directors being made personally responsible. A survey of directors and senior managers in England conducted by consultancy firm Norton Rose also found that 55% thought that an individual director should be made personally responsible and criminally liable for failings in the organisation.

  The Government stresses that individuals will remain accountable under the existing common law offence of manslaughter. This route, however, is likely to remain inadequate for the purpose of prosecuting individuals. Despite a recent rise in the number of prosecutions, the current rate remains at about three or four prosecutions of individuals per year in England and Wales. No individual has ever been prosecuted for homicide in Scotland for causing a death at work. It may be that that the law in its proposed form will actually discourage prosecutions that take the common law route since the prosecuting authorities will now be expected to process corporate manslaughter cases using the new law. The opportunity to provide a more effective legal means of prosecuting both companies and individuals therefore may well be short circuited, albeit unintentionally, by the proposed bill. We would argue that the only way to ensure that the legislation acts as a more effective deterrent will be to introduce a secondary offence which enables individuals to be held liable for significant contribution to the offence of corporate manslaughter. At a minimum, we would argue strongly for the need to retain a lower level individual offence that approximates to "aiding and betting".

2.  DUTY OF CARE

  In order to specify when the new offence comes into play, it must be established that there is a relevant duty of care between the organisation and the deceased. In our opinion, demonstrating this relationship is likely to prove difficult in too many circumstances. Using a civil law concept of duty of care in this way does, as the Government suggest, clarify the position in relation to the circumstance under which the offence will apply. However, it also fails to clarify the relationship between this duty of care and existing statutory duties under, for example, the Health and Safety at Work Act 1974. Amending the offence in its current form to include gross breaches of statutory obligations is relatively easy to do, would make it much clearer exactly what the obligations on employers are, and would ensure consistency with existing statutory law.

3.  ATTRIBUTING LIABILITY

  In order to overcome the problems posed in several corporate manslaughter prosecutions (not least the Herald of Free Enterprise case—R v HM Coroner for East Kent ex parte Spooner [1989] 88 Cr App R 10) the conduct of managers and those in authority at a level lower than that of senior manager must be allowed to trigger liability. It appears from the wording of the bill that the "way in which any of the organisation's activities are managed or organised" intends to capture a means of linking senior managers' role in management and organisation to evidence of criminal conduct at lower levels of the organisation. We would draw two problems to the attention of the Government here. First, the drafting of the bill does not make this clear enough. Second, whilst the Draft Bill offers a means of escaping the straightjacket of corporate mens rea based upon the identification principle, it retains an overly strict means of identifying the conduct of senior manager(s) in order to attribute liability to the corporation.

  In Canada, although there is a comparable method of attributing liability used, Canadian law makes it much clearer that criminal liability can be triggered at all levels of the organisation by anyone with sufficient authority. In the Canadian C-45 Bill which passed into law in November 2003, the conduct of the company's "representatives" is the first consideration in determining the offence. Representatives can be employees, agents or contractors of the organisation. A corporate offence is committed if, at the same time, senior officers who have responsibility for the aspect of the organisation's activities relevant to the offence have departed from a standard of care that could have been reasonable expected in the circumstances.

  Under the Australian Federal Criminal Code Act 1995, the method of attributing liability by way of the identification route remains intact (to show that the corporation's board of directors or a high managerial agent intentionally, knowingly or recklessly carried out the relevant conduct). But significantly, intention, knowledge or recklessness can be also attributed to a corporation where it is established either that a "corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision.", or where the corporation failed to create and maintain a corporate culture that ensured legal compliance. Corporate culture is defined in the Act as "an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place." In the corporate culture model, liability can be imputed where the individual who committed the unlawful act reasonably believed that an authoritative member of the corporation would have authorized or permitted the commission of the offence.

  The draft Bill for England and Wales does not escape fully from the iron cage of identification, since in order to secure a conviction of the company, criminal conduct must be tied to the specific conduct of individual senior manager(s). This form of attributing liability is a much weaker one than that set out in the proposals outlined in the original 2000 Home Office consultation where there was no indication that a particular level of "senior" management was required for a prosecution.

  The means of attributing corporate liability is too briefly set out in the Draft Bill. We would propose that the innovative approaches adopted in Canada and Australia are much more likely to provide a clearer and more workable model for the means of attributing liability.

  We also draw to your attention to the rather vague definition of "senior manager" in the Draft Bill that creates another grey area. In the Draft Bill, it appears that the term is intended to apply to directors, but this is not entirely clear in the wording of notes which accompany the Draft Bill. We would therefore urge the Government to clarify the wording of the Bill in this respect?

4.  THE "GROSS BREACH" THRESHOLD

  The criteria that must be used to determine a gross breach creates a second major hurdle in the route to prosecution. In order to determine whether or not the conduct in question is gross, a jury is required to consider whether one or more "senior managers" knew or ought to have known about the failure to comply or that they were aware or ought to have been aware of the risk of death. More significantly, juries must consider whether senior managers "sought to cause the organisation to profit from that failure." What this does is effectively introduce a requirement that may be very difficult to demonstrate. It is highly likely that juries will be asked to consider complex evidential arguments on the issue of whether or not a profit motive existed. This requirement effectively raises the bar to prosecution and introduces wholly unnecessary complexity into the process. Moreover, it is not clear at all how the bill might deal with cases involving public sector and non-profit organisations, or how juries might be directed in those cases.

  The criteria set out in part 3(2)(b) of the Draft Bill is more likely to hinder, rather than to help a jury reach a decision.

5.  SCOPE OF THE BILL

  The Draft Bill is remarkably and we think unnecessarily limited in its scope. It has singled out the offence of manslaughter and in doing so has deliberately ignored other offences of corporate violence or endangerment. At the moment, if a company either recklessly endangers its workers or the public, or causes injury or disease to a person as a result of gross negligence/recklessness then it is prosecuted—if prosecuted at all—for a breach of health and safety law, rather than for an offence that properly describes serious unlawful conduct. There is no logical reason for not including "injuries" offences that capture physical injury and occupational disease. Indeed, it may be sending out a confusing message to say that we will criminalise serious offences that result in death and not those that don't, by virtue only of the good fortune that the offence caused injury rather than death. We do not anticipate that the incorporation of endangerment, injury and disease into this offence using the same form of attributing liability and the same legal tests would be a major drafting problem. We urge the Government to reconsider the inclusion of new criminal offences which prohibit the causation of endangerment, injury and disease.

6.  LIMITED RANGE OF SANCTIONS

  The Draft Bill stipulates two penalties that are available to the courts: remedial orders similar to those used in health and safety law cases, and fines at a level to be determined by the courts according to the seriousness of the offence. Similar laws in other jurisdictions impose a much wider and more imaginative range of penalties than those proposed in the Draft Bill. We should not restrict our options here, but consider the range of effective sanctions that can be imposed on companies, and indeed consider why organisations require specially designed punishments which recognise that achieving justice, deterrence and rehabilitation may require flexibility and imagination in sentencing. In the Australian Capital Territory Act mentioned previously, the courts can order the offence, the deaths or serious injuries or other consequences resulting from or related to the conduct and any penalties imposed, to be publicised on television or in a daily newspaper and to be notified in an annual report or another notice to shareholders of the corporation. We urge the Government to consider inclusion of a full range of penalties to include the public shaming provisions set out above; corporate probation (where companies are required to comply with a set of health and safety improvements for a set period of time or face stiffer penalties); confiscation of assets associated with the offending; prohibition of the corporation from business activities associated with the offending; dissolution (or the "corporate death penalty"); and equity fines which reduce the value of shares in the company (thus preventing the costs of large fines being passed on to workers, consumers or other smaller client firms).

7.  LIMITED JURISDICTION

  We also question the rationale for the de facto exemption of English and Welsh firms where operations are based abroad. This has particular implications for southern hemisphere countries where regulatory standards are driven down by the need to attract foreign capital. Any new law should not permit companies to establish lower standards of protection for workers in developing countries. Foreign liability is excluded in the Draft Bill on the basis that "the offence would in practice be unenforceable." This is unconvincing and inconsistent with the common law rules for individual manslaughter offences. At the moment, UK nationals can be prosecuted in the UK for committing homicide abroad. In addition, there are a range of legislative provisions (not least those covering financial wrongdoing and corruption) that enable the prosecution of UK companies operating abroad. The granting of immunity to UK companies abroad for killing rather than embezzling for example an unnecessary anomaly in law. We urge the Government to amend the Draft Bill to include liability for UK companies that commit this offence abroad.

8.  DEATHS RESULTING FROM EXPOSURE TO HARMFUL SUBSTANCES

  In the UK at the moment there remains a woeful lack of enforcement for offences that cause deaths and diseases following exposure to harmful substances (such as the exposure of workers to asbestos or chemicals). Across the UK, only 1% of deaths resulting from occupational exposures, as opposed to sudden deaths from injuries, are currently prosecuted as offences. Any new law on corporate killing will by definition, cover many of those deaths caused by exposure to harmful substances. This is not so much a substantive issue of law, but an issue relating to the gathering of evidence and of the rules and procedures used in investigations. The Government should immediately review those aspects of evidence gathering and investigation used by the police and the HSE following deaths related to occupational health causes. Those aspects of the process are also resource intensive and we would urge the Government to provide resources immediately to reverse the unacceptable shortfall in occupational health related prosecutions.

17 June 2005