When the Bill was going through Parliament, it was decided that providers of custody and detention services would be given an extended period to prepare. At that stage, Ministers said that it would be three to five years. The proposed commencement Order will apply the offence of corporate manslaughter to the custody and detention facilities of the Prison Service, the police, the courts, the Youth Justice Agency and the new immigration centre at Larne. In addition, it will affect secure accommodation for young people and for patients who are being detained under mental health legislation.
Those latter two facilities are run by the health and social care trusts.
Corporate Manslaughter - CG LAW Defence
It will expand the scope of the offence to include custody and detention facilities of the armed forces and the customs wing of the UK Border Agency. Our commencement Order would, therefore, cover any armed forces detention facilities and the customs wing of the Border Agency in Northern Ireland. It may be worth recalling briefly that the new offence of corporate manslaughter was approved by Parliament in to address difficulties with the old common law offence of gross negligence manslaughter by a corporation. The main problem with the old offence was that to convict a corporation it was first necessary that an individual in the organisation who was regarded as a directing mind be convicted of gross negligence manslaughter.
That set too high a threshold for some prosecutions of companies to be possible. Although the new law still requires gross misbehaviour, it cuts out the need for an individual to be convicted first. The new offence of corporate manslaughter has a number of elements.
It is about failures of organisation and management based also on a gross breach of a duty of care. The Act does not alter any of the duties of care that are owed, and it does not place additional regulatory burdens on corporations. Rather, by removing barriers to prosecution, it aims to get organisations to work harder to prevent deaths under their care.
The new offence applies not only to private companies but to Crown bodies, and there is no Crown immunity from prosecution for the offence. As it is an organisation that would be prosecuted, the main penalty that is available on conviction is a fine. Courts also have powers to order the guilty organisation, first, to remedy the faults linked to the death and, secondly, to publicise not only its guilt but any fine that is imposed and any remedial action that is demanded.
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Custody providers UK-wide have been preparing for the provisions to be commenced since the Bill was passed in They have each carried out risk assessments and identified areas for attention and have implemented work programmes on management, training and infrastructure development. Previously, the Committee queried the management of investigations of deaths in custody, and it might be helpful if I summarise the actions that are taken when a death occurs.
Our most significant custody provider is, of course, the Prison Service, so I will use that as an example. First, the police are called, and the scene is cordoned off. A cordon is set up and the area becomes a crime scene until it is cleared by the PSNI. That is mainly to protect evidence in case a crime has been committed.
The prison governor also informs others, including the next of kin, the coroner, the Prisoner Ombudsman and the Independent Monitoring Board.
It is for the police to ascertain whether or not a crime has been committed, and they report their initial findings to the coroner. The Prisoner Ombudsman also investigates how the prison managed the individual as compared with published policy and procedures. The coroner may then consider whether to hold an inquest. For example, drugs may remain a major concern for prisons.
The ombudsman has reported on a number of deaths in custody in recent times as a result of drug abuse. Mental health is another issue. It employs psychiatrists and mental health nurses. However, concerns remain about limits to the service that can be provided in a prison setting.
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The Prison Service has also been updating its procedures for preventing suicide and self-harm. A revised suicide and self-harm policy and associated standard operating procedures have been published. Those procedures provide for the day-to-day management and provision of individually tailored care plans for prisoners who are identified as being at risk of suicide or self-harm.
The revised suicide and self-harm policy and existing SPAR process provide clear guidance to staff with regard to corporate establishment and individual responsibilities for the provision of care to prisoners.
The Prison Service has taken its preparations for the corporate manslaughter legislation further by completing a scoping study of the current potential risks that are attached to introduction of the provisions of the Act. A plan was drawn up and is being implemented, albeit within the limitations that much of the estate largely comprises old, outdated buildings that are not built to modern specifications; for example, with regard to ligature points and fire and smoke management systems.
Max can provide specific details. The action plan includes conventional health and safety issues, such as fire and resuscitation, and specific action on matters that I have mentioned as well as on asbestos and legionella. As I have indicated, the new offence is mostly about senior management ensuring that appropriate systems are in place and are implemented. Presentations have been made to the Prison Service management board, including a presentation from Translink on its health and safety management arrangements and what it has learned and can pass on to other public sector organisations.
Work is also in hand to introduce a new health and safety management structure to include a strategic corporate health and safety committee, chaired by the director of finance and corporate services. It will review high-risk areas and ensure that remedial work is actioned. Those are just a few of the actions that one custody provider has been taking. Each provider has been implementing an ongoing health and safety programme. The relevant justice agencies have confirmed to the Minister that they are ready for commencement if the provisions now proceed.
The previous Minister of Health, Social Services and Public Safety indicated that he would be content for the provisions to be commenced. David Ford has now asked the current Minister to confirm that he, too, is content. The Committee will appreciate that it will never be possible to prevent each and every death in custody and detention. Members will know that there have been a number of deaths in the past few months.
There were no signs of suspicious circumstances. We cannot guarantee that, one day, a prosecution for a death in custody will not succeed. However, we are not complacent. The establishment of the new offence has already caused organisations to focus even more closely on their systems, procedures, facilities and training. They are much better prepared now than they were three years ago to prevent deaths in custody and detention.
It specifies 1 September as the intended start date in England, Wales and Scotland. There is no overriding legal consideration why commencement in Great Britain and Northern Ireland should occur on the same date. However, as with health and safety law, we would not wish the legal protections that are available in Northern Ireland under the Corporate Manslaughter and Corporate Homicide Act to be less than they are in Great Britain. With moves under way to commence the provisions in Great Britain, and given the readiness of our custody providers for commencement, the Minister believes that now may be the right time to bring that element of the offence into operation.
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He looks forward to seeing the views of the Committee before he decides whether to proceed and, if so, in what timescale. Were we to move now, hoops would have to be gone through to implement the commencement Order. Our aim is to complete those so that the provisions would come into effect as soon as possible after commencement in Great Britain, sometime in early autumn. Members will note that, unusually for a commencement Order, this Order cannot be made until the Assembly approves it in draft. We believe that commencing those provisions of the Act would be only a part, but an important part, of our efforts to prevent deaths in custody.
We welcome comments from the Committee. I have just one question. Had those Orders been in place in the past year, would any of the deaths in custody have resulted in a corporate manslaughter charge? It is important to emphasise that a prosecution would have to show that, but for the failures of management, the person would not have died. The main focus is on senior management and on those who play significant roles in managing or decision-making, and it is about a gross breach in which the conduct falls far below what can be reasonably expected of the organisation in the circumstances.
The legislation sets that bar. I appreciate that. I ask because the Committee has to be content about this. On the one hand, the provisions will help to ensure that systems are in place to prevent such deaths. Already a subscriber? Click here to login. Enter your details below and select your area s of interest to stay ahead of the curve and receive Law's daily newsletters.
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