Corporate Manslaughter and Corporate Homicide Bill

It is a question of language. I very rarely wish to dissent from a proposition of the noble and learned Lord, who has risen to the status of a Law Lord, except in my academic writings. But today I must issue a powerful dissent from what he says about the meaning; we just need to apply the simple golden rule. It is being said that before a jury finds that a breach of care has occurred in such a way as to make the organisation liable, it must find that what was done fell far below what could reasonably be expected of the organisation in the circumstances. The Bill has already defined the level of duty as that which bounds gross negligence, so you can reasonably expect that the organisation will not fall below the level of gross negligence. Perhaps noble Lords will imagine themselves as a jury and that they have put to them that there is a case to answer on a breach of the duty of care by gross negligence by senior management, which is a substantial element of the activity. They should think, as the noble Lord, Lord Brennan, suggested, about how near we are getting to the old directing-mind-and-will test, to which, as he rightly said, trade unions in this country violently object, having seen the death of many of their members and the public. We are getting very defensive, apart from the old directing-mind-and-will test, and the Government have been defensive enough. But then a further test is added. The jury is told, ““Yes, there is a case for you to consider whether this was gross negligence as a breach of duty, and you also have to consider whether the activity fell far below the level that has already been defined””. With the greatest respect, that is not the civil duty that the noble and learned Lord suggested has been imported into the Bill. As someone whose main interest has been the civil and not the criminal law, I bow to those who are concerned with the criminal law, but the duty has been defined as the bound of gross negligence. Now, the jury is to be asked a second question: did it fall far below what should be expected, given what has already appeared in the Bill? I imagine myself walking along a cliff in the sun with noble Lords and some of them stumble and fall. The noble and learned Lord, Lord Lloyd, manages to catch hold of a bough of a tree. Below that, the noble and learned Lord, Lord Lyell, manages to clamber on to a rock so as not to fall, but, unhappily, the noble Lord, Lord Hunt, falls to the bottom. In considering those events, it is clear to a jury that the noble Lord, Lord Hunt, has fallen far below the safety level. The same might apply to the noble and learned Lord, Lord Lloyd, but perhaps not so clearly, and the noble and learned Lord, Lord Lyell, is arguably far below. Can the Committee imagine a jury wasting hours and hours arguing about whether what has happened has involved falling below the level of duty that the Bill imposes? It is nonsense. A man and woman have died and to make liability depend on whether the act of omission by the senior management, closely defined, was a substantial element and whether it was gross negligence—and to add to that a test whether the noble and learned Lords on the cliff had fallen far below when they rescued themselves would be nonsense. It really is quite absurd to think that juries will not return bizarre judgments on such a test. They will go to your Lordships’ committee, as I still call it, or to our new Supreme Court and have another list of cases, not to define whether this death was something for which someone should be responsible but whether the poor chap fell far below the level of the cliff.