Corporate Manslaughter and Corporate Homicide Bill

My Lords, I compliment the Government on introducing this long-overdue Bill. In the past few years many public and private bodies have caused death or considerable harm to their employees or the general public, and have not been successfully prosecuted or have got away with nothing more than a fine. For example, in the case of the Paddington train crash, 31 people died and Thames Trains got away with a fine of £2 million. A Bill of this nature, of such depth and magnitude, is therefore long overdue. The Bill has gone quite a distance in accommodating some of the legitimate concerns of a large number of people. However, it needs to go a little further. I shall highlight four important areas that I hope the Minister will take up with her colleagues. One of the most important things that have stood in the way of the notion of corporate manslaughter or homicide is the rather dated notion of responsibility with which law and jurisprudence generally tend to operate. Whenever there is an accident, our immediate question is, ““Who did it?””. That is why the Government introduced in earlier legislation the identification principle, and why even the Law Commission thinks largely in terms of management failure. The assumption is that there must be an identifiable individual who can be held responsible, causally and therefore morally, for a chain of actions. That is not how organisations have traditionally functioned, and it is not how they function now. There is often a decision-making procedure—a web of rules—through which decisions emerge, so that no single identifiable individual is responsible for a course of action. Therefore, if we want to hold public bodies responsible, we need a concept of responsibility commensurate with the way in which decisions are taken in large organisations. I do not wish to deny that senior management are responsible, but they are not responsible in quite the way we seem to think they are—namely, ““They did it””. Their responsibility consists largely in allowing a set of procedures and rules to obtain that result in decisions being taken that inflict harm on people. Therefore, we should bear in mind that the senior management’s responsibility ought to consist and should be defined in terms of whether they periodically monitor the procedures by which decisions are taken in the organisation. We saw that in the area of racial discrimination, and that is how the law has been amended over time. No individual directly wished discrimination to take place but the rules and procedures of the organisation nevertheless resulted in discrimination. When the law was amended, the responsibility of the individual was therefore defined in terms of whether he took adequate care—whether the organisation had outside consultants look at its procedures and rules to see whether they directly or indirectly, intentionally or unintentionally, precipitated certain forms of decision-making. My second point relates to the nature of thesenior management. They are responsible, but that responsibility consists of monitoring the procedures and level of decision-making. As the senior management are responsible, it is not enough simply to say that the corporation should pay the fine or be held responsible. The corporation does not exist in a vacuum. It is incarnated in the decisions made by the senior management. Therefore, there must be some way in which the senior management can be held legally responsible. The Bill does not quite take account of that. It is not enough to say that they should resign or be forced to resign under public pressure, because resignation is hardly punishment. It is very common for people to resign with a substantial handshake, or to reappear a few years later as a consultant to the same organisation or in some other capacity in another organisation. Therefore, we must emphasise the notion of secondary responsibility and ensure that, in cases where corporate manslaughter has been proved, the senior management is liable to criminal prosecution and, if necessary, a prison sentence. My third point has already been made by a number of other noble Lords but I want to approach it from a slightly different angle. As the noble Baroness, Lady D’Souza, rightly said, if government bodies are not held responsible in the same way as private bodies, then they are not setting a good example to society at large. If we are going to think in terms of corporate manslaughter, we should be thinking of prison authorities, the police, the Armed Forces and even the National Health Service. If the police or the Army are guilty of lethal force, I cannot see the logical grounds for exempting them from the same principle as applies to public organisations. Or if people are known to have died in police custody then, even if the police themselves are not guilty of intending the deaths, the procedures that they followed resulted in the deaths. Zahid Mubarek, a 19 year-old boy, was killed by a racist cellmate at Feltham young offender institution. It could have been anticipated and prevented by anyone with reasonable intelligence and wisdom. It is a pity that nothing was done. I shall push this point a little further in the direction of the National Health Service. Although it is concerned to cure people, it also kills people, because in many situations a failure to cure results in death and is therefore a form of homicide or manslaughter. If an NHS trust poorly trains or poorly supervises junior doctors or asks them to work in conditions in which fatal errors of judgment are periodically made, why should it not be guilty of corporate manslaughter? It is also guilty if it engages in irresponsible cost-cutting or unjustified risk. As I have said before, I can list many cases where deaths and long-term harm to patients could have been anticipated and avoided if the NHS trust concerned had taken proper care. All this is necessary not so much in a punitive spirit but to create a culture of responsibility in every public and private body. Every loss of life is tragic and those in charge should be made to appreciate that, and to arrange their decision-making accordingly. My third point pushes this argument further in a slightly different direction. I am not entirely sure whether this matter falls, or should fall, within the scope of the Bill, although I do not see why it should not. In any case, it deserves serious consideration because it is being debated in a very big way by several friends and colleagues of mine on the other side of the Atlantic. Let us consider the Armed Forces. It is recognised that the Ministry of Defence is responsible for the life and well-being of the Armed Forces. Let us suppose that the MoD sends the Armed Forces into military action without proper equipment or a proper assessment of the risks involved in undertaking such an action. If as a result there are casualties and our soldiers die, it would be utterly wrong, and inconsistent logically as well as morally, to say that the Ministry of Defence is not responsible for the deaths by its actions. It is very striking that precisely that point was made just this morning by the coroner at the inquest of Sergeant Steven Roberts. Just as corporations cut corners and are guilty of corporate manslaughter because they are often motivated by considerations of profit—and we rightly condemn them for it—it is perfectly possible for the Ministry of Defence, and indeed for the Government as a whole, to be motivated, not so much by concerns of profit but by cost-cutting or political pressure, or because military actions allow even small politicians to emerge larger than they actually are, or because of the political gains that they make. I do not see why the Ministry of Defence, the Government or the head of the Armed Forces should be given the large benefit of a small doubt that they might deserve in these cases, or why they should be treated by different notions of corporate responsibility from those that we rightly apply to commercial enterprises. This issue has become very important. Law journals in the United States—I was there not very long ago—and Yale and Harvard are debating these issues against the background of what Donald Rumsfeld did in his cost-cutting exercise and how hundreds of American soldiers died. I think that, sooner or later, we will have to address that question here. My last point has to do with the requirement that the consent of the Director of Public Prosecutions must be obtained before a private prosecution can be initiated in cases involving corporate manslaughter. The requirement does not exist in several other areas of criminal law, and in my view it seriously curtails a citizen’s liberty to seek redress when grave harm has been done to himself or those associated with him. I very much hope that the Minister will give second, or perhaps even third, thoughts to whether the consent of the Director of Public Prosecutions is absolutely necessary in mounting prosecutions of this kind.