1.  This letter presents an analysis of the technical aspects of the draft Corporate Manslaughter Bill; it does not represent my personal views on the policy considerations that lie behind the Government's legislative proposals.

  2.  The present proposals follow (with some amendments) a Home Office consultation paper in 2000; they are based on part of the Law Commission's report Legislating the Criminal Code: Involuntary Manslaughter, published in March 1996, which in turn was preceded by the Commission's Consultation Paper no. 135. It is 15 years since the acquittals on the direction of Turner J in the Herald of Free Enterprise case (R v P&O European Ferries (Dover) Limited (1990) 93 Cr App Rep 72) gave impetus to the calls for reform.

  3.  Perhaps the most obvious anomaly in the present law is that it is easier (or at least somewhat easier) to convict the sole proprietor of a one-man business than the directors or senior managers of a major corporation with unlimited resources. As Silber J, the principal author of the Law Commission report, has pointed out, that does not meet the aim of the criminal justice system to treat wrongdoers equally. The proposals for reform would go some way to removing the anomaly.

  4.  Clause 1, which creates the new offence, broadly follows clause 4 of the Law Commission Bill except for the concept of "senior managers" (see the discussion of clause 2 below), and for the requirement of the Director of Public Prosecution's consent to the bringing of a prosecution which is in my view justified. The definition requires the way in which any of the organisation's activities are managed or organised by its "senior managers" to cause the death and to amount to a "gross breach" of a "relevant duty of care".

  5.  "Senior manager" is defined by clause 2 as someone who "plays a significant role in the making of decisions about how the whole or a substantial part of [the organisation's] activities are to be managed or organised, or [in] the actual managing or organising of the whole or a substantial part of those activities". This is a rather more detailed and slightly more restrictive definition than that of the Law Commission bill, which used the term "management failure", defined as being where the way in which the corporation's affairs were managed or organised failed to ensure persons' health and safety and caused death. But the greater degree of definition is desirable in order to assist judges in framing questions for the jury to consider.

  6.  However, there may be some difficulty created by the word "substantial", in the phrase "substantial part of its activities". Is it different from "significant" (as in the phrase "plays a significant role")? Does it mean major, or only "more than trivial"? It may be thought inappropriate for judges to offer further definitions of their own when summing up if the word is incapable of further definition in the statute; but if they do not, it will be left to each jury to define the term themselves. Unlike the issue of whether conduct falls far below the standard to be expected, which is a jury question under the present law of gross negligence manslaughter (see R v Adomako [1985] 1 AC 171) and would remain so under the current proposals, the question of whether a business unit represents a substantial part of the organisation's activities does not involve a value judgment, and the answer should not vary from case to case in respect of broadly similar organisations. I cannot offer a definition myself, but this phrase warrants further scrutiny.

  7.  Clause 3 defines what is a "gross breach" of the duty of care. The basic test, as in clause 4(1)(b) of the Law Commission draft bill, is whether the conduct falls far below the standard to be expected. Clause 4(2) requires the jury to have regard to failures to comply with health and safety legislation or guidance demonstrated by the evidence; how serious they were; and whether or not senior managers knew or ought to have known of the failures, were aware or ought to have been aware of the consequent risk of death or serious harm, or sought to cause the organisation to profit from the failure. This is a welcome and imaginative piece of drafting.

  8.  I note that under the present proposals individual liability to prosecution for all existing offences (but not the new one of corporate manslaughter) will remain; and that health and safety legislation imposes quite wide liability on directors and managers who are guilty of connivance or neglect where health and safety legislation has been infringed. Whether liability to disqualification might or should be widened in such circumstances is a matter for legitimate debate. But in rejecting the creation of new imprisonable offences in this area it is understandable that the Government seek to move forward with a broad consensus and along the lines proposed by the Law Commission. Beyond that it is not for a judge to comment.

  9.  Clause 6 provides for remedial orders. It may be desirable for specific rules of court to lay down the procedure to be followed, which will occur after a plea of guilty or conviction by the jury: in the former case the issues will not have been ventilated in evidence, in the latter case they may or may not have been. The defendant should have the opportunity to introduce evidence as to what has already been done and what further steps are practicable, and the Crown should be able to test that evidence and itself call evidence on issues of practicability.

  10.  Failure to comply with a remedial order is made an offence by clause 6(4), punishable by a fine whether on indictment or summary conviction. It is rather surprising that such a failure should not be treated (or at least be capable of being treated) as a contempt of court. That would enable individuals who caused the failure to comply, even after the original fatal accident has highlighted the problem, to be liable to imprisonment in certain circumstances. It would also enable the matter to be brought back before the same judge who imposed the original order. A smaller point is that, if the sanction is to be a fresh prosecution rather than contempt proceedings, it is odd that the offence of failure to comply with a remedial order made by the Crown Court in a case of corporate manslaughter should be triable either way. It should surely return to the Crown Court, not be dealt with by the magistrates' courts.

  11.  Clauses 7 and 8 refer to a Schedule of Government departments and similar bodies. The list in the Schedule seems remarkably short. On the face of it the suggestion in the main text that more work needs to be done on this list is justified.

  12.  I hope my comments are of use to you.

6 June 2005