Corporate Manslaughter and Corporate Homicide Bill

Like my hon. Friends the Members for Manchester, Central (Tony Lloyd) and for Eccles (Ian Stewart), I, too, support new clauses 6 and 7. Today’s theme, both in this debate and in the earlier statement, is deterrence and what constitutes an effective deterrent. We are not talking about how we can put more people into jail, but about how we can prevent disasters from occurring and people from losing their lives. As we mentioned in Committee, and has been said today, we need an appropriate range of penalties available to the courts if we are effectively to address the issue of deterrence. We have made much progress by introducing an offence of corporate manslaughter, or culpable homicide as it will be called in Scots law, but we need to ensure that it works on the ground. Everyone who has spoken today has referred to the complexity of many of the cases in which such incidents occur. It is in light of those complexities, the length of time that it takes to build up a prosecution case and the very difficult decisions that have to be made by prosecutors—often on a narrow point about whether they have sufficient evidence to justify a prosecution in terms of the statutory offence or common-law offences—that we begin to realise the difficulty of ensuring that we have sufficient deterrence. Other hon. Members have mentioned the common-law offence of manslaughter. I shall address the Scottish legal position on the definition of culpable homicide—a common-law offence—because it is materially different, and it is more difficult in those complex cases to mount a successful individual prosecution in common law. We need to look back at the different definitions in both the English and the Scottish courts to realise how wide the chasm is. In the Adomako case in 1997, the leading case in English law, the former Lord Chancellor, Lord Mackay of Clashfern—ironically, as he is an eminent member of the Scottish Bar—defined manslaughter as follows:"““On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died.””" However, the legal definition in Scotland is radically different, as I pointed out in Committee. The leading case is that involving Transco following the Larkhall explosion, which killed a family as a result of negligence. Originally, the prosecuting authorities brought a case under the common-law offence of culpable homicide against the company. That prosecution failed and the defendants were subsequently convicted under statute. In that case, Lord Osborne commented on the common-law offence of culpable homicide:"““However it is quite clear to me that the two definitions are fundamentally different. The Scottish definition contains no counterpart to that…””—" the English definition—"““As I would see it, there is no reliance on elements of the Scottish civil law of delict…Furthermore the Scottish formulation implies clearly, to my mind, a certain state of mind on the part of the perpetrator, that is to say, mens rea, in accordance with the basic principles of Scots criminal law.””" The result is that a very high test of recklessness is applied in cases of culpable homicide in Scots law. It is therefore difficult to perceive when a company director in Scotland would be tried for an offence that would involve a custodial sentence. That would be much more difficult to achieve than in England, and that very point was made by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham). We need proper options for secondary liability if we are to provide adequate deterrence. When my right hon. Friend’s Committee scrutinised the draft Bill, their examination applied, unfortunately, only to England and Wales; there has been no such detailed examination of Scots law. There has been an inquiry, instructed by the Scottish Executive, whose report concluded that as such matters applied to corporations they were reserved and, accordingly, we are now dealing with them at Westminster. However, an unsatisfactory position has resulted in that there is a much higher test in the common-law offence than in the definition that applies in the Bill. Under the Bill, there will not be equivalence in the legal position in Scotland, in terms of who perpetrates such offences—whether individuals or a corporation. I have spoken to a number of people in the Scottish Parliament and it is clear that the weight of business on their shoulders is considerable, so a change in the law of culpable homicide in Scotland is unlikely in the short to medium term. I hope that that day will come, but it is important that the Scottish Executive take time to consider the change, and I appreciate the real burden for them of legislative proposals at present. In Committee, I referred to the Sentencing Commission. It is reporting and I hope that its members will take the opportunity to consider the discrepancy that will result from the Bill. My hon. Friend the Member for Manchester, Central made a good point about the controlling-mind question, which in part illustrates the distinction between the definition in new clause 6 and that which applies in the common-law offence. The statutory definition does not require a controlling mind, but in common-law cases—certainly in Scotland—not only gross recklessness but the controlling-mind principle must be established. That is a high test to achieve, which is why in practice few cases are taken at common law. There is a need for an offence where the penalty is higher than simply imposing a fine, but lower than that which applies to a common-law offence. There is a place for such a distinction and new clause 6 limits the level of the custodial sentence to six months. That is a serious marker of the nature of the offence, but it does not go as far as for a common-law offence—certainly by a long mark in Scotland. The sanction that we are establishing by creating the offence of corporate homicide needs to be reflected in the secondary penalties that we hope the Government will consider imposing under the Bill. We have made some progress on naming and shaming and I was pleased to hear what the Minister said today. It is important to keep a record in the companies register. Given that larger companies, in particular, are trying to attract investment and contracts, a statement of their liability and prosecution under such an offence would be a serious warning to potential investors and people who wanted to do business with them. If the circumstances of companies’ operations were known, many people might prefer not to do business with them. In Committee, I mentioned a company in my constituency that was successfully convicted of the manufacture of weapons of torture—electric batons that it sold in the middle east—but there was no naming and shaming in the companies register. Many major household names were clients of that company and did business with it, yet the prosecution was not noted in the register. Doing that would have a salutary effect, even more so when a company had caused death by negligence.