Clause 3

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee at on 24 October 2006.

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Meaning of “relevant duty of care”

Amendment moved [this day]: No. 92, in page 2, line 29, after ‘vehicle’, insert ‘, substance hazardous to health,’.—[Tony Lloyd.]

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central 4:00, 24 October 2006

I hope, Mr. Benton, that you will give me some leeway and consider what I say now not simply to be a repetition, but a reminder.

Amendment No.92 is straightforward. The purpose of clause 3(4) is to delimit construction or maintenance operations and members of the Committee will see a whole series of activities that are caught by this part of the Bill. What amendment No.92 seeks to do is insert the words “substance hazardous to health” at page 2, line 29 after “vehicle”. I do not wish to dwell on it, but it is a matter of practical fact that substances hazardous to health are those substances that can in some circumstances cause injury, but in some circumstances can kill. It is important to recognise that in the context of the Bill we are talking about those circumstances where substances hazardous to health were sufficient to have resulted in death.

The purpose of the amendment is simply to add words because at the moment it is not obvious that among the activities listed, the failure to operate properly and in a safe manner consistent with health protection in the use of hazardous substances is covered by this part of the relevant duty of care. The relevant duty of care must contain reference to the question of substances hazardous to health. I would like the Minister’s assurance—it would be helpful in terms of the way in which the legislation is interpreted—that it is implicit in the Bill that substances hazardous to health are included. Alternatively, if he is unable to do that, will he accept that there may be a need to amend the Bill? Obviously, I will listen to the Minister’s words carefully and I hope we can make it clear that there is no intent that these substances should be out of the scope of the Bill.

Photo of Ian Stewart Ian Stewart Labour, Eccles

In support of my hon. Friend, earlier in the sitting this morning the hon. Member for Beaconsfield (Mr. Grieve) and other hon. Members talked about the difference in breadth in terms of the Health and Safety at Work, etc. Act 1974. Part I section 2(2)(b) of that Act talks about the use, handling, storage and transport of articles and substances.  That clearly shows why my hon. Friend the Member for Manchester, Central (Tony Lloyd) has tabled this amendment. If the Minister is unable to accept the amendment, the words that he says as recorded in the Official Report will become all important.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I was about to intervene on the hon. Gentleman, but as he has finished I will put in my pennyworth.

The Health and Safety at Work, etc. Act 1974 was drafted in the 1970s according to what I regard as rather old-fashioned principles of drafting compared with those we have now; there was a tendency to dot the i’s and cross the t’s. Therefore, the amendment strikes me as being perfectly reasonable. That said, my reading is that a hazardous substance would be covered by the “other thing” in subsection (1)(a)(iv). However, it is a sign of changes in the way we draft legislation that nowadays we put in far more assumptions, rather than including every possible item.

Photo of Ian Stewart Ian Stewart Labour, Eccles

Eminent as the hon. Gentleman is, he is not the Minister, no matter what he thinks. It is the Minister whom we want to hear.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

In this context I am pleased not to be the Minister—I shall leave him to answer for himself. I can only give the hon. Gentleman the benefit of my thoughts in so far as I have considered the amendment and wondered whether there was any merit in what he and the hon. Member for Manchester, Central have said.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

I welcome you to this afternoon’s proceedings, Mr. Benton. I also thank my hon. Friends the Members for Eccles (Ian Stewart) and for Manchester, Central for their support for the amendment, which is important for the reasons given. It is important that the Bill should cover the sort of activities that have been referred to and I am pleased that they are on the record. I am also grateful for the legal advice that the hon. Member for Beaconsfield gave.

I am satisfied that the substances that my hon. Friend the Member for Manchester, Central talked about are properly covered by the Bill as it stands. Quite rightly, subsection (1)(c)(iv) already refers to

“the use or keeping by the organisation of any plant, vehicle or other thing.”

The last term is deliberately intended to be very broad. It is certainly broad enough to cover the sorts of substances that my hon. Friend is concerned about. As the hon. Member for Beaconsfield said, the reason for including the term “other thing”, which is not prescriptive, is that additional wording could start debates about whether the intention was to exclude substances that are not inherently hazardous to health, or arguments about whether a substance is a hazard to health or simply dangerous. It is important that the offence extends to the use of drugs in hospitals and the storage of petrol.

I fully support the sentiments of my hon. Friend in tabling the amendment. My reply is intended in no way to diminish the importance of the topic or the need to ensure that the Bill extends to hazardous substances.  However, I am satisfied that they are already properly covered and that we would not improve the Bill by including a specific reference. I hope that on that basis my hon. Friend is happy to withdraw the amendment.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

I am reassured by the Committee’s legal adviser and even more so by the Minister. It was important that he placed his words on the record. I am satisfied in any case that hazardous substances were probably covered but, as the hon. Member for Beaconsfield pointed out, there was a time when things would automatically have been included beyond peradventure, whereas we now perhaps leave a little more to interpretation. I can understand arguments for both approaches, but what is important is that the intention of Parliament has been made clear by the Minister’s statement, so that it is clear in any future interpretation, and usable in any proceedings, that the many substances that are hazardous to health are covered by the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 135, in page 2, line 32, leave out subsection (3).

This is a probing amendment, although behind the probe there is a certain amount of wondering on my part about what the Government have done. Subsection (3) establishes that although corporations will be tried by jury for any allegation of corporate manslaughter, it seems that the trial will fall into two distinct parts. It will remain within the jury’s province to decide whether there has been a breach of any duty of care, but the Government have spelt out that the decision of whether a duty of care is owed to a particular individual by a corporation is a question of law. I do not disagree with that—it is quite clear.

However, subsection (3) also states:

“The judge must make any findings of fact necessary to decide that question.”

The Minister will correct me if I am wrong, but this seems to be a bit of a novelty in our criminal law. I would normally expect the judge in a criminal trial to determine the scope of the duty of care as a question of law and to put that to the jury in the summing-up as part of a twofold process, saying, “Members of the jury, you have first of all to decide whether the facts amount to owing a duty of care. If you are satisfied that they do, you must decide whether that duty has been breached.” The judge would guide them on the law and explain that a decision on the law was for him. However, the final decision would still lie with the jury, which would decide if the facts, as described and given to them by the judge, amounted to a duty of care in the first place.

The Government have gone for a completely new system. I am not necessarily against that. I have a lot of confidence in jury trial. However, removing this aspect of a jury’s role in deciding the primary facts on which duty of care might be established is a bit of a novelty. I am also puzzled as to how it will be done in practice. How will the trial be split up so that the twofold process takes place? Presumably, the prosecution will present its case to the judge and there will be an opportunity for the defence counsel to submit that there is no case to answer at half-time. However, that might not be enough  and the defence case might have to be presented; then the judge would have to rule before he summed up to the jury as to whether he had decided that there was a duty of care in existence in the case in question and what the facts were upon which he made that decision. I assume that the Government intend the courts to adopt that procedure, but I should be grateful if the Minister explained how this will work out in practice, because there is a certain novelty about it.

If the jury will not be the arbiter of whether the facts are such that a duty of care is owed—under the judge’s guidance on the law—I am worried that we may risk juries reaching conclusions on whether there has been a breach of duty of care that are incompatible with the facts on which the judge has decided that the duty of care exists in the first place. We need to think about that.

On the whole, our criminal courts have moved away from the principle that judges can direct juries to convict. The Minister may be familiar with, or may remember, the Ponting case. Mr. Ponting admitted to a national newspaper various facts about disclosing documents that were subject to the Official Secrets Act. Frankly, the facts that he admitted were the offence, and he as good as admitted the offence by admitting to the set of facts. I recollect that the judge indicated to prosecution and defence counsel that he was minded to give the jury a direction to convict Mr. Ponting. The prosecution quickly rowed away from that idea, because it thought that it was in rather dangerous waters. As a result, Mr. Ponting was, rather surprisingly, acquitted, because the jury took a robust and wholly individual view of its own about whether he was guilty.

Perhaps in the circumstances about which we are talking such a problem will not arise in quite the same way. The judge will say, “I tell you as a matter of law that a duty of care exists in this case. Therefore, all you have to decide is whether it has been breached.” However, although that sounds simple, one could face problems if the jury, having listened to all the evidence, were not satisfied that a duty of care existed at all, notwithstanding whatever the judge might or might not tell them. One may end up with difficulties with a two-stage process.

I want to make it clear to the Minister that I wish to hear more from him about how the Government envisage that working, what discussions they have had with the judiciary about how it would operate in practice and what thought has been given to the practical difficulties of a two-stage approach.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central 4:15, 24 October 2006

I may be about to talk nonsense, but one of my worries about the duty of care is that it is often breached when an illegality is involved in the process. Let us consider the cockle pickers’ accident. If illegal immigrants were working illegally in that framework, would there be a breach of the duty of care? Would it be a defence in the case of corporate manslaughter to argue that there was no duty of care, so even though materially the same company in the same circumstances would clearly have been guilty of corporate manslaughter, it could avoid the charge and the penalty? What concerns me is leaving a big hole in legislation affecting the most vulnerable people in our society.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman describes a hazardous area in which lawyers fear to tread. On the face of it, duties that are specified in clause 3—under “Meaning of ‘relevant duty of care’”—including, in particular, the definitions of the law of negligence at the top of page 3 of the Bill cover a duty to people who may be acting unlawfully themselves. I shall give an example. I might have cited what I am about to describe earlier, in which case I ask the Committee’s indulgence if I repeat myself.

I refer to the case of young children who routinely trespass through a service yard where lorries are manoeuvring. They are undoubtedly there as trespassers. Notices are frequently put up saying that they should not come into the yard and attempts are made to fence the yard to prevent children from using it as a short cut. I had a similar case, although it involved a little old lady who routinely used a marshalling yard as a short cut to the shops.

The route was used frequently, so the wire was often cut. Having simply tried to fence it off, the company concerned took no further steps to have regard to the fact that, when lorries were manoeuvring, occasionally people were in the yard who should not have been there. The situation results in a reversing lorry running over a child. My view is that, notwithstanding the duties of care that are outlined or restricted, that case would be capable of being prosecuted as corporate manslaughter if it could be shown that there was a serious failure to have regard to a clear and obvious risk that arose from the unlawful activity. I give that as an example to the hon. Gentleman, and I do not believe that that is something that could be prevented.

Matters cut both ways. Undoubtedly, establishing whether or not a duty of care exists is very much a matter for a trained lawyer, but the trouble remains that the decision of juries will, I am sure, be influenced about whether there is a breach of the duty of care by their attitude and whether they regard it as common sense for there to have been a duty of care in the first place. As the Ponting case highlighted, whatever judges may tell juries in their summing up that the law says that there was a duty of care in certain cases, it would be idle to pretend that that may not have an impact on the way in which juries view cases. When dealing with people who are engaging in unlawful practices, juries may subconsciously or consciously have regard to that when reaching their decisions. That is why I am so interested in hearing from the Minister about how the Government think that the system will work in practice. I have a very slight niggle that it may prove to be a little more complicated than has been realised. Once a judge starts removing decisions from the jury, there is the potential for a clash between the two, which would lead to Court of Appeal hearings and all sorts of difficulties. I would like to see whether we can prevent that.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

As the hon. Gentleman said, amendment No. 135 would remove the requirement for the judge to decide whether a duty of care is owed. I am no lawyer, and, like the hon. Member for Kingston and Surbiton (Mr. Davey), neither do I aspire to be one, but I do not wish to be disrespectful to lawyers. [Interruption.] On this occasion I do not wish to be disrespectful to them.

For the benefit of the Committee, I shall go through this information as slowly as possible, as it contains my legal advice from the Home Office. If there is a need to challenge it, I am sure that the hon. Member for Beaconsfield will do that.

I understand that in a handful of gross negligence manslaughter cases involving individuals, the point relating to the judge’s involvement has been considered. The position generally seems to be that it is for the judge to decide whether, legally, a duty of care could exist in the case, and for the jury to decide if one arose. In at least one case, the judge decided the matter and directed the jury that a duty existed as a matter of law.

To step back for a moment, I should emphasise that we doubt that this will be a specific issue for many prosecutions. The vast majority of the duties of care relevant to the offence are well established—for example, the employer’s duty of care to employees—so resolving the question of whether a duty was owed will be relatively straightforward. If there is doubt, the categories in the Bill will assist in determining whether a case should be brought, so the question will be more complex in only a small number of cases.

Generally, the duties that organisations owe will be considered and decided in the civil courts, where it will be the judge who settles the issue, as juries are not involved in civil negligence actions. That means that the question will primarily be a legal one, decided by reference to case law. We think that it is more sensible to require the judge to decide, in the same way that he would decide any other matter of law in the case. It also means that there will be consistency between civil and criminal law in this area, and that is important. Duty of care forms an important part of the regulatory framework for organisations, and it would not be sensible for organisations to owe a different set of duties for the purpose of this offence.

That approach will not affect the position in manslaughter cases involving individuals, where the question will remain with the jury. In those cases, the jury will decide whether a duty is owed between two or more individuals. In some cases, the decision will be straightforward—for example, the duties that parents owe to their children—but if the position is more complicated, the question will still be one of whether a particular individual owed a duty of care to another; for example, whether one drug user owes another a duty in relation to drug use.

Subject to the judge first deciding whether the facts are capable of giving rise to a duty, a jury of ordinary people will be in a strong position to assess the situation. The question of consistency with the civil law is less important because negligence actions against individuals are less common and duties of care do not provide the same regulatory framework for people as they do for organisations. That is the basis of the position so far.

The hon. Member for Beaconsfield and my hon. Friend the Member for Manchester, Central raised various issues. My hon. Friend’s concern is that cases such as that of the cockle pickers might not be covered because the Bill links the new offence to owing a duty  of care in the civil law of negligence, and liability can be precluded in the civil law between people engaged in criminal activity. We considered that civil law principle, which is known as ex turpi causa non oritur actio—or something near that—when responding to the joint report of the Home Affairs and Work and Pensions Committees. Our view is that the doctrine, which operates as a defence to a civil claim, would not prevent a duty of care from being owed for the purposes of the new offence.

The Court of Appeal in Wacker decided that the doctrine had no application to manslaughter even though the necessary ingredient of gross negligence manslaughter existed, but that there had been a breach in the duty of care under the ordinary principles of negligence. We are satisfied that that would be no major obstacle in such cases.

The hon. Member for Beaconsfield asked what discussions there had been with the judiciary about the proposals. There has been extensive consultation on all aspects of the Bill, and this one in particular. Sir Igor Judge gave evidence to the scrutiny Committee and I know that judges have raised the matter with us.

The hon. Gentleman asked how splitting the role of the judge and jury will work in practice. As he knows, the Bill contains no special provision for that, and we are satisfied that none is required. Criminal proceedings will often involve questions that need to be decided by the judge as a matter of law and this matter will fall to be decided in the same way. It is worth remembering that in the majority of cases whether or not a duty existed would be a straightforward matter—for example, when the person killed was an employee or a train passenger. In cases of uncertainty a defendant can apply before the case reaches the court for it to be dismissed on the grounds that there is no case to answer. If it is not dealt with then, it can be raised as a preliminary point at the start of the proceedings in the way that points of law generally can be raised for the judge to consider. In the vast majority of cases, it should be straightforward. I hope that that helps the hon. Gentleman, and that he will be happy and content to withdraw his amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister, and he has gone a long way towards reassuring me. I certainly did not intend to press the matter to a vote. I shall go away and reflect on whether I am completely happy and if not I shall come back to the matter on Report. I should make it quite clear that this is a matter of practicality. It is not some big issue of principle for me, much as I like jury trial, and as long at the jury has the final say on whether there has been a breach I am content with the slightly unusual role of the judge. I was interested to hear, and was not aware, that a judge had on at least one occasion usurped the jury’s role in a gross negligence manslaughter prosecution by giving it direction of law as opposed to telling it what the law was and hinting at the probable outcome of what it should decide. That is not improper in itself. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.