News
JACK’S BACK
It is that time of year again, the prisons are full and the lord chancellor reminds magistrates that community penalties are tough after all. Unfortunately for the lord chancellor, neither the magistrates nor middle England really believe that dossing around a community centre painting rainbows on walls counts as a punishment that fits the crime; one day he will realise this. Until then, advocates should remember that at least one is born every day and some magistrates are starry eyed liberals hearing it for the first time, so who am I to disappoint; this week’s No 1 line in mitigation:
“Non-custodial community sentences such as unpaid work, supervision, behaviour programmes, drug rehabilitation, alcohol treatment and curfews are often more effective in preventing reoffending than short prison sentences. Community justice works by making courts more responsive to the priorities of local people. By strengthening the links between the courts and the community, I believe people’s confidence in the work of the court will rise and the community will feel more confident about tackling offending behaviour. Without the co-operation of the community, many offenders simply repeat the cycle of offending and detention.” (Secretary of state for justice, www.justice.gov.uk/news)
MANSLAUGHTER AND CORPORATE HOMICIDE ACT 2007
This Act comes into force, almost in its entirety on 6 April 2008 by virtue of the Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No 1) Order 2008 (SI 2008/396).
Prior to this legislation it was possible for a corporate body, such as a company, to be prosecuted for a wide range of criminal offences, including manslaughter. To be guilty of the common law offence of gross negligence manslaughter, a company had to be in gross breach of a duty of care owed to the victim. The prosecution of a company for manslaughter by gross negligence was often referred to as “corporate manslaughter”. As the law stood, before a company could be convicted of manslaughter, a “directing mind” of the organisation, ie a senior individual who could be said to embody the company in his actions and decisions, also had to be guilty of the offence. This is known as the identification principle. Section 1(1) defines the new offence, triable only on indictment, which will be called corporate manslaughter in and and and corporate homicide in .
Elements of the offence
- The organisation must owe a “relevant duty of care” to the victim (see s 2 for duties of care).
- The organisation must be in breach of that duty of care as a result of the way in which the activities of the organisation were managed or organised. Section 1(3) stipulates that an organisation cannot be convicted of the offence unless a substantial element of the breach lies in the way the senior management of the organisation managed or organised its activities.
- The way in which the organisation’s activities were managed or organised must have caused the victim’s death.
- The management failure must amount to a gross breach of the duty of care. A breach is a gross breach if the conduct that constitutes the breach falls far below what could reasonably have been expected. Section 8 sets out a number of factors for the jury to take into account when considering this issue. There is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs.
Section 1(2) sets out the sort of organisation to which the new offence applies:
(i) a corporation;
(ii) a department or other body listed in Sch 1;
(iii) a police force; and
(iv) a partnership, or a trade union or employers’ association, that is an employer.
The term “senior management” is defined in s 1(4) to mean the persons who play significant
roles in: (i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or (ii) the actual managing or organising of the whole or a substantial part of those activities.
Duty of care
Section 2(1) requires the duty of care to be one that is owed under the law of negligence, common law or statutory. The offence will only apply where an organisation owes a duty of care:
- To its employees or to other persons working for the organisation.
- As occupier of premises.
- when the organisation is supplying goods or services.
- When constructing or maintaining buildings, infrastructure or vehicles etc or when using plant or vehicles etc.
- When carrying out other activities on a commercial basis.
- That is owed because a person is being held in detention or custody. (But note that this part of the Act relating to custody and detention, will not come in to force on 3 April 2008). Section 2(5) provides that the existence of a duty of care in a particular case is a matter of law for the judge to decide. This is a departure from the normal functions of the judge and jury.
Weighing up whether or not a breach has occurred
Section 8 sets out a number of matters for the jury to consider:
“ (2) The jury must consider whether or not the evidence shows that the organisation failed to comply with any health and safety legislation that relates to the alleged breach, and if so—(a) how serious that failure was; (b) how much of a risk of death it posed.
(3) The jury may also—(a) consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure as is mentioned in subsection (2), or to have produced tolerance of it; (b) have regard to any health and safety guidance that relates to the alleged breach.
(4) This section does not prevent the jury from having regard to any other matters they consider relevant.
(5) In this section “health and safety guidance” means any code, guidance, manual or similar publication that is concerned with health and safety matters and is made or issued (under a statutory provision or otherwise) by an authority responsible for the enforcement of any health and safety legislation.”
Punishments
In addition to the power under s 1 to impose an unlimited fine, s 9 gives the courts a power to order an organisation convicted of the new offence to take steps to remedy the management failure leading to death. Section 10 enables a court to order a convicted organisation to publicise, in a manner specified by the court, the fact of its conviction, specified particulars of the offence, the amount of any fine imposed and the terms of any remedial order that has been made. This section will not come in to force until the Sentencing Guidelines Council has issued a guideline on its use.
Prosecution
The consent of the director of public prosecutions is needed for proceedings to be instituted (s 17). Section 19 clarifies that a conviction for corporate manslaughter would not preclude an organisation being convicted for a health and safety offence on the same facts if this were in the interests of justice.
CASE LAW
R (Hansford) v Magistrates’ Court [2008] EWHC 67 (Admin), [2008] All ER (D) 263 (Feb)
It was held that a receiver appointed under the Criminal Justice Act 1988 (CJA 1988) was not entitled to deduct his costs from the sum to be applied to the outstanding debt. The entirety of the recovered amount should be deducted and the receiver’s costs claimed from the court. A secondary issues arose in relation to interest payments and it was held that the court has no discretion to decide whether, and if so in respect of what period, a person is liable to pay interest pursuant to CJA 1988, s 75A (1).
CPS Nottinghamshire v Rose [2008] EWCA Crim 239
The issue in this case was in relation to the calculation of “benefit” (Proceeds of Crime Act 2002 (PCA 2002)) where property was recovered and returned to its rightful owner. The court held that the defendant had had the benefit of the property and therefore the market value of the goods, at the time he had handled them was the sum to be used for calculating benefit. The fact that the property had been returned to its owner was of no relevance.
R v Rose [2007] EWCA Crim 3432
This appellant was sentenced to 30 months’ imprisonment in October 2006 at Nottingham Crown Court after he had been convicted of three counts of possession of criminal property contrary to ss 329(1)(c) and 334 of PCA 2002. The defendant, of previous good character, had allowed his land to be used for the storage of stolen property (commercial vehicles—JCB, HGV trailer). It was held that 30 months’ imprisonment should be reduced to 12.
R v Daly [2007] EWCA Crim 1293
It was held that a three-year sentence for breach of notification requirements (in operation due to offence of rape) reduced on appeal to 18 months. The court observed that:
“The notification provisions were designed to protect the public and it is a matter of considerable concern that a person who has been convicted of rape does not comply with these provisions. The appellant’s repeated failure to comply, coupled with the other instances of non co-operation, by failure to comply with bail conditions and community sentences, are clearly, as the judge found, part of a deliberate policy of disobedience to court orders. Having said that, we do accept [the submission] that the sentence of 3 years was too long. There is…no evidence that the appellant was intending by his noncompliance to conceal his whereabouts from the authorities in order to facilitate the commission of further crime. That would be a seriously aggravating factor and one which would indeed justify a sentence towards the top of the bracket.”
R v AS [2008] EWCA Crim 138, [2008] All ER (D) 131 (Feb)
This appeal raised the issue of whether or not a judge of the crown court had correctly exercised his jurisdiction to determine, after the conclusion of a trial of a defendant, an allegation that the defendant was in contempt of court because he had intimidated a witness outside the crown court during the course of the trial.
It was held that having regard to the factors highlighted in para 22 of the judgment the judge was correct to proceed as he did. The factors a judge must consider are:
(i) The importance, in the circumstances prevailing in many courts, of ensuring that anyone who attempts to interfere with or intimidate a witness during the course of the trial within the vicinity of the court is dealt with promptly.
(ii) The necessity in this particular case for the matter to be dealt with quickly so that no similar incidents would occur during the trial or pending the retrial.
(iii) The proportionate nature of the course followed.
(iv) The clarity of the allegation against the appellant.
(v) The fact that there was ample time for the appellant to prepare the defence properly; the evidence was served promptly and no further disclosure was necessary.
(vi) The procedure to be followed and the safeguards provided. The formal procedure followed was almost indistinguishable from the procedure that would have been followed in the magistrates’ mourts. The fact that the appellant was not interviewed made little difference.
(vii) The very limited dispute as to fact as much of the evidence was either admitted or caught on the CCTV camera.
(viii) The level of punishment was unlikely to be high.
(ix) The position of the judge, accordingly no issue of bias arises.
