2007 Chapter 19

© Crown Copyright 2007

Explanatory Notes to Acts of the UK Parliament are subject to Crown Copyright protection. They may be reproduced free of charge provided that they are reproduced accurately and that the source and copyright status of the material is made evident to users.

It should be noted that the right to reproduce the text of these Explanatory Notes does not extend to the Queen's Printer imprints which should be removed from any copies of the Explanatory Notes which are issued or made available to the public. This includes reproduction of the Notes on the internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document. The text of this internet version of the Explanatory Notes which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text in printed form and as published by The Stationery Office Limited as the Corporate Manslaughter And Corporate Homicide Act 2007, ISBN 9780105619079. The print version may be purchased by clicking here. Braille copies of the Explanatory Notes can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail: customer.services@tso.co.uk.

Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions.

To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.

      These notes refer to the Corporate Manslaughter and Corporate Homicide Act 2007 (c.19) which received Royal Assent on 26 July 2007

CORPORATE MANSLAUGHTER AND CORPORATE HOMICIDE ACT 2007

     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Corporate Manslaughter and Corporate Homicide Act which received Royal Assent on 26 July 2007. They have been prepared by the Ministry of Justice in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The Act makes provision for a new offence of corporate manslaughter (to be called corporate homicide in Scotland) and for this to apply to companies and other incorporated bodies, Government departments and similar bodies, police forces and certain unincorporated associations. The Act has 29 sections and 2 Schedules.

4.      Section 1 defines the offence and identifies the sorts of organisation to which it will apply. The effect of sections 2 to 7 is to identify the sort of activities covered by the new offence, and to specify certain functions performed by public authorities in relation to which the offence will not apply. Section 8 outlines factors for the jury to consider when assessing an organisation's culpability. Sections 9 and 10 make provision for remedial orders and publicity orders to be made on conviction.

5.     Sections 11 to 13 deal with the application of the offence to the Crown and police forces, where a number of provisions are required to reflect the particular status of Crown bodies and police forces. Section 14 makes provision to accommodate the application of the offence to partnerships. Section 15 makes further supplemental provision to ensure that rules of procedure, evidence and sentencing apply to Crown bodies, police forces and those unincorporated bodies to which the offence applies. Section 16 sets out where liability will fall following machinery of Government changes or other cases where functions are transferred.

6.     Sections 17 to 20 deal with a number of ancillary matters. These require the consent of the Director of Public Prosecutions to commence proceedings in England and Wales or Northern Ireland; preclude the prosecution of individuals as secondary participants in the new offence; clarify that convictions under this Act would not preclude conviction under health and safety legislation on the same facts; and abolish the common law offence of manslaughter by gross negligence in so far as it applies to companies and other bodies that are liable to the new offence. Sections 21 to 23 provide powers to extend the offence to other types of organisation, to amend the list of Government departments and other bodies in Schedule 1 and to extend the forms of custody or detention that give rise to relevant duties of care. Sections 24 to 28 deal with general matters including extent and jurisdiction.

7.     The Schedules to the Act set out the Government departments and other similar bodies to which the offence will apply and make a number of minor and consequential amendments.

BACKGROUND

8.     Prior to this legislation it was possible for a corporate body, such as a company, to be prosecuted for a wide range of criminal offences, including manslaughter. To be guilty of the common law offence of gross negligence manslaughter, a company had to be in gross breach of a duty of care owed to the victim. The prosecution of a company for manslaughter by gross negligence was often referred to as "corporate manslaughter". As the law stood, before a company could be convicted of manslaughter, a "directing mind" of the organisation (that is, a senior individual who could be said to embody the company in his actions and decisions) also had to be guilty of the offence. This is known as the identification principle. Crown bodies (those organisations that are legally a part of the Crown, such as Government departments) could not be prosecuted for criminal offences under the doctrine of Crown immunity. In addition, many Crown bodies, such as Government departments, do not have a separate legal identity for the purposes of a prosecution.

9.     In 1996 the Law Commission's report "Legislating the Criminal Code: Involuntary Manslaughter" (Law Com 237) included proposals for a new offence of corporate killing that would act as a stand-alone provision for prosecuting companies to complement offences primarily aimed at individuals. The Law Commission's report, including its proposals on corporate killing, provided the basis for the Government's subsequent consultation paper in 2000 "Reforming the Law on Involuntary Manslaughter: the Government's Proposals". These papers, and a summary of responses to the consultation paper, are available on the Home Office website (www.homeoffice.gov.uk).

10.     A draft Corporate Manslaughter Bill (Cm 6497) was published in March 2005. This set out the Government's proposals for legislating for reform and proposed an offence based on the Law Commission's proposals, with some modifications, including the application of the new offence to Crown bodies. The draft Bill was subject to pre-legislative scrutiny by the Home Affairs and Work and Pensions Committees in the House of Commons that autumn. Their report was published in December 2005 (HC 540 I-III) and the Government responded in March 2006 (Cm 6755).

11.     Although Scots criminal law on culpable homicide differs from the law of manslaughter elsewhere in the UK, the same issues of identifying a directing mind have arisen in Scotland. In 2005 the Scottish Executive established an Expert Group to review the law in Scotland on corporate liability for culpable homicide. The Group reported on 17 November 2005 and the report and other papers are available on the Scottish Executive website (www.scotland.gov.uk)

TERRITORIAL EXTENT

12.     The Act extends to the whole of the UK. Some provisions are, by their nature, only relevant to some parts of the UK.

13.     The Act is essentially concerned with health and safety, which is not a devolved matter in Scotland.

COMMENTARY ON SECTIONS

Section 1: The offence

14.     Section 1(1) defines the new offence, which will be called corporate manslaughter in England and Wales and Northern Ireland and corporate homicide in Scotland. The new offence builds on key aspects of the common law offence of gross negligence manslaughter in England and Wales and Northern Ireland, described in paragraph 8 above. However, rather than being contingent on the guilt of one or more individuals, liability for the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are run. In summary, the offence is committed where, in particular circumstances, an organisation owes a duty to take reasonable care for a person's safety and the way in which activities of the organisation have been managed or organised amounts to a gross breach of that duty and causes the person's death. How the activities were managed or organised by senior management must be a substantial element of the gross breach.

15.     The elements of the new offence are:

• The organisation must owe a "relevant duty of care" to the victim. The relevant duties of care are set out in section 2.

• The organisation must be in breach of that duty of care as a result of the way in which the activities of the organisation were managed or organised. This test is not linked to a particular level of management but considers how an activity was managed within the organisation as a whole. Section 1(3) stipulates that an organisation cannot be convicted of the offence unless a substantial element of the breach lies in the way the senior management of the organisation managed or organised its activities.

• The way in which the organisation's activities were managed or organised (referred to in these notes as "the management failure") must have caused the victim's death. The usual principles of causation in the criminal law will apply to determine this question. This means that the management failure need not have been the sole cause of death; it need only be a cause (although intervening acts may break the chain of causation in certain circumstances).

• The management failure must amount to a gross breach of the duty of care. Section 1(4)(b) sets out the test for whether a particular breach is "gross". The test asks whether the conduct that constitutes the breach falls far below what could reasonably have been expected. This reflects the threshold for the common law offence of gross negligence manslaughter. Section 8 sets out a number of factors for the jury to take into account when considering this issue. There is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs.

16.     Section 1(2) sets out the sort of organisation to which the new offence applies. In the first place, this is corporations. These are defined as any body corporate, whether incorporated in the United Kingdom or elsewhere. This includes companies incorporated under companies legislation, as well as bodies incorporated under statute (as is the case with many non-Departmental Public Bodies and other bodies in the public sector) or by Royal Charter. However, the definition specifically excludes corporations sole, which cover a number of individual offices in England and Wales and Northern Ireland. Section 1(2) also applies the offence to partnerships, trade unions and employers' associations, if the organisation concerned is an employer. These bodies are defined in section 25. The definition of partnership extends to partnerships covered by the Partnership Act 1890 and limited partnerships registered under the Limited Partnerships Act 1907 but not to limited liability partnerships created under the Limited Liability Partnerships Act 2000, which are bodies corporate and therefore organisations to which the offence applies by virtue of section 1(2)(a). The list of organisations to which the offence applies can be further extended by secondary legislation, for example to further types of unincorporated association, subject to the affirmative resolution procedure (section 21).

17.     The term "senior management" is defined in section 1(4) to mean those persons who play a significant role in the management of the whole or a substantial part of the organisation's activities. This covers both those in the direct chain of management as well as those in, for example, strategic or regulatory compliance roles.

18.     The Act also binds the Crown and will apply to a range of Crown bodies such as government departments. Crown bodies rarely have a separate legal personality. Where they do, the application of the offence to corporations (and the Act's application to the Crown) means that the offence will also apply to these bodies. Where they do not, a mechanism is required to identify which Crown bodies are covered by the offence and this is achieved by applying the offence to a list of government departments and other bodies set out in Schedule 1. Section 22 sets out the procedure for amending the Schedule.

19.     The new offence will be triable only in the Crown Court in England and Wales and Northern Ireland and the High Court of Justiciary in Scotland. These represent equivalent levels of court and involve proceedings before a jury. The sanction is an unlimited fine (section 1(6)), although the court will also be empowered to impose a remedial order (section 9) and a publicity order (section 10) on a convicted organisation.

Section 2: Meaning of "relevant duty of care"

20.     The new offence only applies in circumstances where an organisation owed a duty of care to the victim under the law of negligence. This reflects the position under the common law offence of gross negligence manslaughter and, by defining the necessary relationship between the defendant organisation and victim, sets out the broad scope of the offence. Duties of care commonly owed by corporations include the duty owed by an employer to his employees to provide a safe system of work and by an occupier of buildings and land to people in or on, or potentially affected by, the property. Duties of care also arise out of the activities that are conducted by corporations, such as the duty owed by transport companies to their passengers.

21.     Section 2(1) requires the duty of care to be one that is owed under the law of negligence. This will commonly be a duty owed at common law, although in certain circumstances these duties have been superseded by statutory provision. For example, in the case of the duty owed by an occupier, duties are now owed under the Occupiers' Liability Acts 1957 and 1984 and the Defective Premises Act 1972 (and equivalent legislation in Northern Ireland and Scotland), although the common law continues to define by whom and to whom the duty is owed. In some circumstances, liability in the law of negligence has been superseded by statutory provision imposing strict liability, for example, the liability of carriers is governed by the Carriage of Air Act 1961. Section 2(4) makes provision for the offence to apply in these circumstances too. The section also, in subsection (6), makes it clear that the application of the offence is not affected by common law rules precluding liability in the law of negligence where people are jointly engaged in a criminal enterprise (an aspect of the rule referred to by the Latin maxim "ex turpi causa non oritur actio") or because a person has accepted a risk of harm ("volenti non fit injuria").

22.     Section 2(1) requires the duty of care to arise out of certain specific functions or activities performed by the organisation. The effect is that the offence will only apply where an organisation owes a duty of care:

• to its employees or to other persons working for the organisation. This will include an employer's duty to provide a safe system of work for its employees. An organisation may also owe duties of care to those whose work it is able to control or direct, even though they are not formally employed by it. This might include contractors, secondees, or volunteers. The new offence does not impose new duties of care where these are not currently owed. But where such duties are owed, breach of them can trigger the offence.

• as occupier of premises (which is defined to include land). This covers organisations' responsibilities to ensure, for example, that buildings they occupy are kept in a safe condition.

• when the organisation is supplying goods or services. This will include duties owed by organisations to their customers and will cover, for example, duties owed by transport providers to their passengers and by retailers for the safety of their products. It will also cover the supply of services by the public sector, for example, NHS bodies providing medical treatment.

• when constructing or maintaining buildings, infrastructure or vehicles etc or when using plant or vehicles etc. In many circumstances, duties of care owed, for example, to ensure that adequate safety precautions are taken when repairing a road or in maintaining the safety of vehicles etc will be duties owed by an organisation in relation to the supply of a service or because it is operating commercially. But that may not be apt to cover public sector bodies in all such circumstances. These categories ensure that no lacuna is left in this respect.

• when carrying out other activities on a commercial basis. This ensures that activities that are not the supply of goods and services but which are still performed by companies and others commercially, such as farming or mining, are covered by the offence.

• that is owed because a person is being held in detention or custody. Section 2(2) sets out various forms of custody or detention covered by this: being detained in a prison or similar establishment, in a custody area at a court or police station or in immigration detention facilities; being held or transported under immigration or prison escort arrangements; being placed in premises used to accommodate children and young people on a secure basis; and being detained under mental health legislation. The commencement of this part of the legislation requires the further approval of Parliament (see paragraph 66 below).

23.     The effect is, broadly, to include within the offence the sort of activities typically pursued by companies and other corporate bodies, whether performed by commercial organisations or by Crown or other public bodies. Many functions that are peculiarly an aspect of government are not covered by the offence because they will not fall within any of the categories of duty of care in this section. In particular, the offence will not extend to circumstances where public bodies perform activities for the benefit of the community at large but without supplying services to particular individuals. This includes wider policy-making activities on the part of central government, such as setting regulatory standards and issuing guidance to public bodies on the exercise of their functions. In many circumstances, duties of care are unlikely to be owed in respect of such activities in any event, and they will remain subject to other forms of public accountability. Sections 3 to 7 provide that the offence does not apply to the performance of specified public functions. However, whether the offence is capable of applying in any given circumstances will depend in the first place on whether a duty of care is owed to a person by an organisation, and whether the duty of care is a "relevant duty of care" by reason of section 2.

24.     In criminal proceedings, questions of law are decided by the judge, whilst questions of fact, and the application of the law to the facts of the case, are generally for the jury, directed by the judge. Section 2(5) provides that the existence of a duty of care in a particular case is a matter of law for the judge to decide. This reflects the heavily legal nature of the tests relating to the existence of a duty of care in the law of negligence. Because the judge will be deciding whether the circumstances of the case give rise to a duty of care, he will need to make certain determinations of fact that are usually for the jury. For example, if considering whether a corporation owes a duty of care as employer, the judge will need to decide whether the victim was an employee of the corporation. The questions of fact that the judge will need to consider will generally be uncontroversial and in any event will only be decided by the judge for the purposes of the duty of care question. If they otherwise affect the case, they will be for the jury to decide.

Section 3: Public policy decisions, exclusively public functions and statutory inspections

25.     Section 3 makes provision specifically to exclude certain matters from the ambit of the offence. Section 3(1) deals with decisions of public policy taken by public authorities. (Public authorities are defined by reference to the Human Rights Act 1998 and include core public bodies such as Government departments and local government bodies, as well as any other body some of whose functions are of a public nature. Courts and tribunals, which are not covered by the new offence, are excluded.) At present, the law of negligence recognises that some decisions taken by public bodies are not justiciable, in other words, are not susceptible to review in the courts. This is because they involve decisions involving competing public priorities or other questions of public policy. This might, for example, include decisions by Primary Care Trusts about the funding of particular treatments. A recent example in which the courts declined to find a duty of care on this basis related to whether the Department of Health owed a duty of care to issue interim advice about the safety of a particular drug. In many circumstances, these sorts of issues will not arise in respect of matters covered by the specified categories of duty within section 2. And basing the offence on the duty of care should mean that the offence would not apply to these sorts of decision in any event. Section 3(1) confirms, however, that deaths alleged to have been caused by such decisions will not come within the scope of the offence.

26.     Section 3(2) provides for an exemption in respect of intrinsically public functions. In many circumstances, functions of this nature will not be covered by the categories of duty set out in section 2 (see paragraph 22 above). However, it is possible that some such functions will amount to the supply of goods or services or be performed commercially, particularly if performed by the private sector on behalf of the State. In other circumstances, things done in the exercise of such a function will involve the use of equipment or vehicles. Section 3(2) specifically provides that an organisation will not be liable for a breach of any duty of care owed in respect of things done in the exercise of "exclusively public functions", unless the organisation owes the duty in its capacity as an employer or as an occupier of premises. This test is not confined to Crown or other public bodies but also excludes any organisation (public or otherwise) performing that particular type of function. This does not affect questions of individual liability, and prosecutions for gross negligence manslaughter and other offences will remain possible against individuals performing these functions who are themselves culpable. The management of these functions will continue to be subject to other forms of accountability such as independent investigations, public inquiries and the accountability of Ministers through Parliament.

27.     "Exclusively public functions" are defined in section 3(4). The test covers both functions falling within the prerogative of the Crown (for example, where the Government provides services in a civil emergency) and types of activity that by their nature require a statutory or prerogative basis, in other words, that cannot be independently performed by private bodies. This looks at the nature of the activity involved. It therefore would not cover an activity simply because it was one that required a licence or took place on a statutory basis. Rather, the nature of the activity involved must be one that requires a statutory or prerogative basis, for example licensing drugs or conducting international diplomacy.

28.     Section 3(3) provides that an organisation will not be liable in respect of any duty of care owed in connection with the carrying out of statutory inspections, unless the organisation owes the duty in its capacity as an employer or as an occupier of premises. This exemption would cover regulatory activities to ensure compliance with statutory standards: for example, inspection activities by the health and safety enforcing authorities. It is unlikely that these bodies would owe duties of care in respect of such activities or that these activities would be performed commercially; nor would the exercise of these functions amount to the supply of services. It is possible, though, that the carrying out of an inspection might involve the use of equipment, so as to bring section 2(1)(c)(iv) into play. This provision makes explicit that the performance of these functions will fall outside the scope of the offence.

Section 4: Military activities

29.     Section 4 makes provision to exclude certain activities performed by the armed forces. A wide range of operational military activities will be exclusively public functions within the terms of section 3(2) and so exempt from the offence. However, that exemption does not relate to an organisation's duties as employer or occupier. Section 4 provides that certain military activities are exempt in respect of all categories of relevant duty of care. The exemption applies to the conduct, preparation and support of military operations as well as other hazardous and unpredictable circumstances, including peacekeeping operations and operations dealing with terrorism or serious public disorder. The law of negligence already recognises that the military authorities will rarely owe a duty of care in such circumstances. The fact that the Act will not apply in such circumstances is made explicit on the face of the Act. In addition, the exemption extends to training exercises that simulate these sorts of operations and to the activities of the special forces.

Section 5: Policing and law enforcement

30.     Section 5 deals with policing and law enforcement activities performed by the police and other law enforcement bodies.

Subsection (1) provides an exemption that applies to the police and other law enforcement bodies in respect of all categories of duty of care referred to in section 2, i.e., including those duties of care owed by an organisation as an employer or the occupier of premises. But this wide exemption is available only in limited circumstances: specifically, operations dealing with terrorism, civil unrest or serious disorder in which an authority's officers or employees come under attack or the threat of attack; or where the authority in question is preparing for or supporting such operations; or where it is carrying on training with respect to such operations. This reflects the approach adopted in the existing law of negligence, which has already recognised that the policing of violent disorder where the police come under attack or the threat of attack will not give rise to liability on the part of an employer. The requirement in section 5(2) that the operations being carried on, or prepared for, or supported, amount to "policing or law enforcement activities" does not mean that only the police can benefit from this exemption: it is potentially available to bodies such as immigration authorities (section 5(4)(d)), and other bodies which in dealing with, say, civil disorder, are exercising functions similar to police functions. But it does mean that organisations that do not carry out policing and law enforcement activities are excluded from the scope of the exemption.

31.     Subsection (3) confers an exemption that applies to a wider range of policing and law enforcement activities, but not in respect of the duty of care owed as employer (or occupier). The exemption therefore operates to exclude circumstances where the pursuit of law enforcement activities has resulted in a fatality to a member of the public. Many of the activities to which this will be relevant will be ones that are not in any event covered by the offence either because no duty of care is owed or because they do not amount to the supply of services or the activities are exclusively public functions. However, this might not always be the case and some areas may give rise to question. Subsection (3) makes it clear that policing and law enforcement activities are not, in this respect, covered by the offence. This will include decisions about and responses to emergency calls, the manner in which particular police operations are conducted, the way in which law enforcement and other coercive powers are exercised, measures taken to protect witnesses and the arrest and detention of suspects. This exemption is not confined to police forces. It extends to other bodies operating similar functions and to other law enforcement activity. For example, it would cover the activities of Her Majesty's Revenue and Customs when conducting investigations and the activities of traffic officers. It also extends to the enforcement of immigration law, and so would cover circumstances where, for example, the immigration authorities are taking action to arrest, detain or deport an immigration offender.

32.     As with other matters not covered by the Act, this does not exempt individuals from investigation or prosecution for individual offences, as the Act does not have a bearing on the question of individual liability.