Corporate Manslaughter and Corporate Homicide Bill

Despite what the noble Lord, Lord James, says, Clause 8 is designed to assist jurors in assessing whether a breach was gross. Under the current law of gross negligence manslaughter, juries are asked whether, having regard to the risk of death involved, the defendant’s conduct was so bad in all the circumstances that it should be characterised as gross negligence and therefore as a crime. This test has attracted some criticism as having a degree of circularity and not giving much assistance to juries in determining whether a breach should be considered as gross. With an offence based on a failure to take proper care for the safety of another person, it will always be difficult to describe exactly how such a failure will be manifest. However, we think that we can provide some further clarity on the test. This will help jurors and, in fairness, give potential defendants guidance on what it is that they must do to avoid liability. Clauses 8(1) and (2) require jurors to consider whether there were any failures to comply with health and safety legislation related to the breach and, if so, how serious they were and how much of a risk of death they posed. This will explicitly put the alleged breach in the context of the organisation’s obligations under health and safety legislation. So any health and safety failures related to how the activity in question was managed would be relevant, including, for example, high-level failures to assess risks, as required under the Management of Health and Safety at Work Regulations 1999, and specific requirements for carrying out the activity, such as wearing appropriate protective clothing. Jurors will consider how much of a risk of death the failures posed. Therefore, it will not be an abstract question of whether the organisation should have been doing something, but, in the circumstances, how much of a risk of death was posed by that failure. Clause 8(3), with which Amendments Nos. 78 and 78A deal, points jurors to whether the organisation had a corporate culture that encouraged or led to the tolerance of the health and safety breach. In adding this concept, I confess that we have borrowed largely from the Australian concept of corporate culture and are following the recommendation of the pre-legislative scrutiny committee. We believe that by directing juries to consider whether the evidence shows a corporate culture existed that encouraged or tolerated health and safety failures, juries will be aided in judging whether the breach was truly corporate. The provision will also reassure organisations that promote good health and safety practices, but will act as a warning to organisations that have paper systems in place but which in practice disregard them. I recognise that Amendment No. 78, tabled by the noble Lords, Lord Hunt and Lord Henley, is intended to address the concern that organisations cannot control the attitude of every member of staff. However, I offer the reassurance that the attitude of individual members of staff would be considered in the overall context of the organisation’s approach to health and safety. The concept is intended to emphasise the corporate nature of the offending, rather than the reverse. The concept of attitudes in the organisation is relevant to the question whether there was a corporate culture that allowed the gross breach to occur. It is the responsibility of organisations to ensure that staff know that safety is important and carry out their duties with that very much in mind. A pertinent example comes from the remarks of the chair of the US Chemical Safety Board in connection with the explosion in the BP oil refinery. This week on Radio 4, she said that in the company there had been a, "““mentality of not repairing things ... and cost-cutting that had been indicated as a cause for much of their safety problems””." Similarly, on the sinking of the ““Herald of Free Enterprise””, Lord Justice Sheen said in his report that the organisation was, "““infected with the disease of sloppiness””." It is important that juries take that sort of attitude into account when considering whether the breach of the duty of care by the organisation had been gross. The noble Lord, Lord James, suggested that it was desirable to make motive another consideration for the jury. We would be concerned that the jury might over-emphasise the need to find one. We are not convinced that a motive, for example, to save money is relevant to whether there had been a breach of a duty of care. An organisation may, through utter disregard, fail to consider what actions need to be taken for an activity to be carried out safely. Interestingly, in the draft Bill we included a profit motive in the list of factors for juries to consider. This was heavily criticised by the pre-legislative scrutiny committee. At that point, the Government were persuaded that the Bill should not refer to motives. One of the key reasons was that the public sector would rarely be motivated by profits. Conversely, it could be said that commercial organisations are only motivated by profit. I therefore come down very much on the side of the noble Lord, Lord Henley, and the noble and learned Lord, Lord Lyell, on the subject of motive. Their summation is probably right. I certainly understand the debate, and, as I said at an earlier stage, this was, in a slightly different form, given careful consideration. I hope that I have reassured the noble Lord, Lord Henley, and I trust that I have answered the point made by the noble Lord, Lord James.