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51.Some separate provisions have been enacted to cater for the specific position of corporations. For example, section 33 of the Criminal Justice Act 1925 enables a corporation to plead through its representative as it cannot plead in person. Section 15 also enables any necessary modifications to be made to existing provisions by order. For example, a reference in the rules on criminal procedure to a director or the secretary of the corporation would need modification in order to apply to a department or police force. Such orders would be subject to the negative resolution procedure (that is, they are laid before Parliament and become law unless specifically annulled).

52.Similar provision for Scotland can be achieved under the existing powers of the High Court to regulate procedure by Act of Adjournal.

Section 16: Transfer of functions

53.This section makes provision for cases where functions have been transferred between (or out of) Government departments or other bodies listed in Schedule 1, incorporated Crown bodies or police forces. In summary, prosecutions will be commenced, or continued, against the body that currently has responsibility for the relevant function. But if the function is transferred out of the public sector entirely, proceedings will be against the body by which the function was last carried out. For machinery of Government changes, the effect of this is to place responsibility for defending proceedings with the organisation within which a function currently sits. But in order to retain the Crown’s overall liability for proceedings if a function is transferred to a non-Crown body (for example, if a function were privatised), liability remains with the Crown body that previously performed the function.

54.In some circumstances, a different approach might be warranted. For example, where a function transfers between Government departments but there is no corresponding transfer of personnel, it might be more appropriate for the department responsible at the time of the fatality to retain liability. Section 16 therefore includes provision for the Secretary of State to make an order specifying that liability rest with a different body. Such orders would be subject to the negative resolution procedure.

Section 17: DPP’s consent required for proceedings

55.The consent of the Director of Public Prosecutions (or DPP for Northern Ireland in the case of that jurisdiction) is needed for proceedings to be instituted. In Scotland all proceedings on indictment are instigated by the Lord Advocate. There is therefore no need for a consent mechanism.

Section 18: No individual liability

56.Section 18 expressly excludes secondary liability for the new offence. Secondary liability is the principle under which a person may be prosecuted for an offence if they have assisted or encouraged its commission. In general, this means that a person can be convicted for an offence if they have aided, abetted, counselled or procured it or, in Scotland, are guilty art and part. However, section 18 specifically excludes an individual being liable for the new offence on this basis. This does not though affect an individual’s direct liability for offences such as gross negligence manslaughter, culpable homicide or health and safety offences, where the relevant elements of those offences are made out.

Section 19: Convictions under this Act and under health and safety legislation

57.Section 19 clarifies that a conviction for corporate manslaughter would not preclude an organisation being convicted for a health and safety offence on the same facts if this were in the interests of justice. It would therefore also be possible to convict an individual on a secondary basis for such an offence under provisions such as section 37 of the Health and Safety at Work etc. Act 1974. This does not impose any new liabilities on individuals but ensures that existing liabilities are not reduced as an unintended consequence of the new offence.

Section 20: Abolition of liability of corporations for manslaughter at common law

58.Section 20 abolishes the application of the common law offence of gross negligence manslaughter to corporate bodies and any application it has to those unincorporated associations to which the offence applies. Prosecutions for corporate manslaughter will in future fall under this legislation. This section does not affect the common law offence of culpable homicide in Scotland.

Section 21: Power to extend section 1 to other organisations

59.Section 21 provides a power for the Secretary of State to apply the new offence to further categories of organisation, for example, to further types of unincorporated association. This is exercisable subject to the affirmative resolution procedure (that is, the relevant order will require approval in both Houses of Parliament before it comes into effect).

Section 22: Power to amend Schedule 1

60.This section sets out the procedure for amending Schedule 1 (the list of Government departments and similar bodies to which the offence applies). Changes that are consequential on machinery of Government changes are to be made by the negative resolution procedure. This includes changes to the name of a particular department, as well as the addition of a department (if the reason for adding it is that it will have functions all of which were previously exercisable by another organisation to which the offence applies) or deletion of a department (again, if the reason is that all of its functions are being transferred to another organisation to which the offence applies, or if the department is being abolished). Other changes to Schedule 1 are subject to the affirmative resolution procedure. The effect is that changes which alter the range of activities or functions in relation to which the new offence applies will require a resolution by Parliament before they can come into effect, but otherwise the changes will take effect unless disapproved by Parliament.

Section 23: Power to extend section 2(2)

61.Section 23 confers a power on the Secretary of State to extend the categories of person, listed in section 2(2), to whom a “relevant duty of care” is owed by reason of section 2(1)(d) – duties owed to a person because they are in custody or detention. The power enables further categories of person in custody or detention or in analogous circumstances to be added.

Section 24: Orders

62.Orders under the Act are to be made through secondary legislation. Order-making powers (sections 15, 16, 21, 22 and 23) provide whether the order is to be made under the negative or affirmative resolution procedure. Section 24 defines these procedures. The commentary on these sections above describes the implication of this for each order-making power.

Section 25: Interpretation

63.Section 25 defines various terms used in the Act including “corporation”, “employee”, “employer’s association”, “health and safety legislation”, “partnership” and “trade union”.

Section 26: Minor and consequential amendments

64.Section 26 gives effect to Schedule 2 (see below).

Section 27: Commencement and saving

65.Section 27(1) provides for the legislation to be brought into force by order - known as a commencement order - made by the Secretary of State. Other than in the case of section 2(1)(d), such an order will need to be laid before Parliament but is not subject to the affirmative or negative resolution procedure. An order commencing section 2(1)(d), that is commencing the offence in respect of duties owed a person because they are in custody or detention, is subject to the affirmative resolution procedure and will require approval in both Houses of Parliament before it takes effect.

66.Subsection (3) makes it clear that the legislation is not retrospective. Subsection (4) makes provision for the common law offence of manslaughter by gross negligence to remain in place in respect to corporations for conduct and events that occur prior to commencement. Proceedings in respect of the common law offence (whether started before or after the new offence is brought into force) and arising out of the conduct and events occurring prior to commencement will not be affected by the Act.

Section 28: Extent and territorial application

67.Section 28 deals with extent and territorial application. The Act extends to the whole of the United Kingdom. (Amendments to other legislation have the same extent as the provision they are amending: section 28(2).)

68.Section 28(3) and (4) set out the circumstances in which the courts will have jurisdiction for the new offence. Under section 10 of the Offences Against the Person Act 1861, courts in England and Wales have jurisdiction in a case of homicide if the injury causing death is inflicted in England and Wales, or in a place where the courts in England and Wales have jurisdiction (such as on a British ship), even if the death occurs elsewhere. The Act makes similar provision to this (but on a UK basis reflecting the application of the new offence across the UK), providing for jurisdiction if the harm causing death is sustained in the United Kingdom or other locations where criminal jurisdiction currently extends. Section 28(4) ensures that the offence will still apply if the harm resulting in death is sustained as a result of an incident involving a British ship (or aircraft or hovercraft), but the victim is not on board when he suffers that harm – for example, if a grave safety failing resulted in a ship being wrecked and the passengers being killed by drowning.

Section 29: Short title

69.The short title of the Act is the Corporate Manslaughter and Corporate Homicide Act 2007. This reflects the fact that the offence will be known as corporate manslaughter in England and Wales and Northern Ireland, and corporate homicide in Scotland.

Schedule 1: List of Government departments etc

70.The Schedule sets out the list of Government departments and other similar bodies to whom the offence applies. This does not cover Crown bodies that are incorporated (for example, such as the Health and Safety Commission and Executive) to which the offence applies by virtue of sections 1(2)(a) and 11(1) without further provision.

Schedule 2: Minor and consequential amendments

71.Schedule 2 updates references to homicide offences in the Coroners Act 1988 to include the new offence and ensures that the term “person” in that Act is wide enough to include organisations capable of committing the new offence but which are not incorporated bodies. The Schedule also updates legislation in England and Wales and Northern Ireland that provides for a case to be retried in certain circumstances following acquittal and for appeals by the prosecution against certain terminating rulings. Previously, those provisions applied to specific, listed offences, including manslaughter (whether by individuals or a corporate body). These lists need amendment to reflect that future manslaughter proceedings against corporations will be for the new offence.

Commencement

72.The provisions of the Act will be brought into force by commencement order (see section 27(1)).

Hansard References

73.The following table sets out the dates and Hansard references for each stage of the Act’s passage through Parliament.

Royal Assent – 26 July 2007 House of Lords Vol 694 Col 968

House of Commons Vol 463 Col 1068