Leading public law specialists have attacked ministerial plans to grant blanket immunity to Government departments from new corporate killing legislation due to be published this month, arguing that it is in breach of the European Convention on Human Rights (ECHR).
A legal opinion provided jointly by Tim Owen QC, Murray Hunt and Danny Friedman of Matrix Chambers, and prepared for the Centre for Corporate Accountability (CCA), argued that a huge raft of organisations would fall outside the legislation, such as central Government departments responsible for the environment, prisons, the military, health and safety and transport, as well as healthcare providers and schools.
"If such organisations are not capable of being prosecuted under criminal law in relation to deaths arising from management failures, it is in our view inevitable that the UK will, sooner or later, be found to be in breach of the procedural obligation in Article 2 and/or the obligation to provide effective remedies under Article 13, in the circumstances of a particular case," the paper argued.
"It has always been apparent that there are good public policy reasons why any new manslaughter offence should apply to all employing organisations, including prisons, Government departments, the police, partnerships, schools and other unincorporated bodies," commented CCA director David Bergman. "Now, it appears that the Government is required by its own human rights laws to ensure that any such offence should apply to them." Although there was no mention of the Corporate Killing Bill in the Queen’s Speech, the Government has committed itself to publishing a draft bill by the end of the year. The Matrix opinion also argued that the immunity provided at present to crown bodies for the current offence of manslaughter or for health and safety offences (following a death) was also likely to fall foul of the Human Rights Act 1998.
According to Matrix, if unincorporated bodies were excluded from the scope of a proposed new offence, this would give rise to two "striking anomalies". First, it would automatically exclude most Crown bodies. "The paradigm case of an organisation that is an unincorporated body is a state prison," it continued. "Given that the Strasbourg case law has become consistently more emphatic about the need to render state incarceration subject to the rule of law and amenable to human rights protections, it is our opinion that the omission of prisons from the proposed new offence of corporate killing would be likely to give rise to an Article 2 violation, as well as a finding under Article 13 that the provision of a civil remedy alone was not sufficiently effective."
The second anomaly would be that recourse to the criminal law would depend entirely on the legal form of the body. The opinion cited the example of a person being cared for in a care home run by an unincorporated body receiving care from employees of the local authority and from nursing staff employed by the home. "If death results from a management failure on the part of the home, no recourse to the criminal law would be possible, but it would if the cause of the death was a failing of the local authority," it said. "The scope for arbitrary and unjustifiable distinctions, bearing no relation to the object and purpose of the creation of the offence, is obvious."