The Home Office proposes that British companies or organisations that commit the offence of corporate killing abroad should not be prosecuted in English/Welsh courts. We do not support this view.

This question arises in relation to a death that results from the activities of:
o an English company based in another country;
o an English company based in Britain, but with operations abroad;
o an English parent company with subsidiaries abroad

The Home Office Proposals:
In relation to its three proposed individual homicide offences - the government proposes a retention of the existing rule - that is to say individuals who commit these offences abroad can be prosecuted in this country. However, in contrast, it proposes that companies which commit the new homicide offence of "corporate killing" should not be able to be prosecuted in English courts. The Government states that:

"Companies registered in England or Wales which commit corporate killings in the course of their work abroad will not be liable to prosecution here. That would be a matter for the courts in the country concerned … [W]e recognise that this will lead to a situation where a "natural" person will be potentially liable in the English courts to prosecution for an involuntary homicide committed abroad whereas an undertaking will not.

The Government gives two reasons why it believes that courts should not have jurisdiction. First it argues that is would create too many practical problems.

"the Government considers that there would be very considerable practical difficulties if we were to attempt to extend our jurisdiction over the actions abroad of companies registered in England and Wales. These difficulties would mean that the prosecution of offences committed by English or Welsh companies within other states territory would be practically unenforceable. Our police have no authority to gather evidence abroad and contrary to the system prevailing elsewhere in Europe, where written evidence is admissible, out courts have a tradition of oral evidence and cross examination."

Secondly, it argues that it would not be appropriate for policy reasons:

".. the Government will only consider taking extra-territorial jurisdiction where dual criminality exists i.e. where the behaviour concerned constitutes an offence both here and under the laws of the country in which it happened. We apply this policy so that we cannot be accused of "exporting our laws".

The Current Legal Position
The general rule in English law is that English courts only have jurisdiction over crimes committed in England. One exception to this rule relates to homicide offences: English courts have jurisdiction over murders and manslaughters when they are committed by its 'subjects" outside England. Section 9 of the Offences against the Persons's Act 1861 states that:

"Where any murder of manslaughter shall be committed on land out of the United Kingdom … and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case … shall amount to the offence of murder or manslaughter, …"

What this means is this. English courts have jurisdiction over the offence of manslaughter:

• where it is committed by any person, as long as the death takes place in Britain (the normal rule of jurisdiction);
  
  
• where it is committed by a British Citizen with the death occurring outside Britain. It makes no difference whether the gross negligence that caused the death took place in Britain or outside.

Clearly as an individual, the director can be prosecuted. Whether the company can be prosecuted at the same time depends upon whether a company is considered to be a "subject of Her Majesty" - the words used in the 1861 Act. There is no legal case on this point. Black's Law Dictionary defines a "subject" as

"one that owes allegiance to a sovereign and is governed by his laws. The natives of Great Britain are subjects of the British Government. Men in free governments are subjects as well as citizens; as citizens they enjoy rights and franchises; as subjects they are bound to obey the law."

While the whole phrase "subjects of her majesty" seems to refer to citizens who are human beings, in our view, the argument that this includes legal persons (i.e. companies) is strong:

• One way of interpreting a statute is to look to the intention of the legislature. Clearly, when the OAPA 1861 was passed the word "subject" was meant to refer to a human being since companies in those days were collections of people and did not possess the distinct legal personality of today. However, another rule of statutory interpretation is that words and concepts can be updated to take account of change in conditions. Under this latter view, one could argue that a "subject" today means a "person" - which includes legal persons like companies - with some "nationality" bonds to the country. Whilst for human persons, nationality laws determine citizenship, for legal persons, it depends on whether they have registered in England. In effect, therefore, it can be argued that "subjects of her majesty" include companies registered in Britain.
  
  
• In addition, the concept of "subject" implies an agreement to be "subject to the laws" of the Sovereign. All companies are subject to the laws of the sovereign, but British companies, through the process of regulation, are subject to even greater level of legal control. They are therefore clearly "subjects" in this sense.
  
  
• The term "subject" in section 9 must refer to those persons capable of committing murder or manslaughter. Not only human persons but also legal persons are now deemed capable of committing manslaughter. This is another reason why companies should be deemed to be 'subjects'.

There are many problems with this argument:

• Exporting our laws? The Home Office seems to be misusing the argument relating to "exporting laws". A country only "exports its laws" when it tries to place obligations upon companies or citizens of another country. So for example, the United States could arguably be accused of "exporting its laws" when it tried to prevent the import of Bangladesh textiles manufactured through the use of child labour. It was in effect trying to place upon Bangladesh companies an obligation - over and above the obligations imposed by Bangladesh law - to comply with US standards. In relation to the question about the extension of jurisdiction over English companies committing crimes abroad, there is however no issue of placing obligations on any company other English companies. How, then, would this country be "exporting" its laws?

• What about individual offences?: The Government appears to assume that there is no problem of dual criminality in relation to its three individual homicide offences. This is not discussed in the consultation document, but just taken for granted. Yet, the government's assumption is dubious. Whilst most jurisdictions may well have an offence similar to one of "reckless killing" - involving subjective awareness - many will not have a homicide offence that can be proved through 'gross negligence'. Indeed even more jurisdictions will not have an offence similar to the proposed "third" homicide offence. Why is the "dual criminality" argument used in relation to the corporate but not individual homicide offences? Since the Home Office has not taken "dual criminality" into account in relation to its individual offences, then it is wrong that it should suddenly become a criteria for whether the corporate homicide offence should or should not be "extra-territorial".

• In any case, the Home Office is wrong to assume that other jurisdictions do not have an offence which criminalises the conduct that constitutes the proposed offence of "corporate killing". All that is required to pass the dual criminality test is that the conduct in question "constitutes an offence under the law in force in that country or territory" where the offence is said to have been committed. It does not have to be an offence with a similar name, nor indeed must it necessarily be treated equally seriously by the foreign jurisdiction. All that matters it that the conduct in question is a criminal offence in the foreign jurisdiction.

The report published a set of criteria - not even mentioned in the Home Office manslaughter report - that had previously been drawn up a few years earlier by the Home Office to assist it in considering whether offences should have extra-territorial effect. These "guidelines" had recommended that extension of jurisdiction could be considered where at least one of the following factors was present:

• where the offence is serious (this might be defined in respect of existing offences, by referred to the length of sentence currently available).
  
  
• where, by virtue of the nature of the offence, the witnesses and evidence necessary for the prosecution are likely to be available in UK territory, even though the offence was committed outside the jurisdiction;
  
  
• where there is international consensus that certain conduct is reprehensible and that concerted action is needed involving the taking of extra-territorial jurisdiction;
  
  
• where the vulnerability of the victim makes it particularly important to be able to tackle instances of the offence;
  
  
• where it appears to be in the interests of the standing and reputations of the UK in the international community;
  
  
• where there is a danger that offences would otherwise not be justiciable.

The Home Office does not appear to have considered it own guidelines - that it published just a few years ago - to determine whether English courts should have jurisdiction over companies that commit homicide offences abroad. Had it done so, it would have found that all these criteria exist to a greater or lesser extent, in relation to these offence.

• Homicide is undoubtedly a very serious offence, whether it is committed by individuals or companies.
  
  
• In many cases, the evidence of corporate killing would be in Britain, since the companies are likely to be based and have other businesses in this country
  
  
• There is international consensus that manslaughter - whether committed by individuals or companies - is 'reprehensible'. There is also international consensus against companies who fail to comply with health and safety standards, as it indicated by:
  
  
  • the ILO "Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy";
    
    
  • the ILO Core conventions
    
    
  • the OECD "Guidelines for Multinationals Enterprises";
    
    
  • the report of the European Parliament on "EU standards for European enterprises operating in developing countries; towards a European Code of Conduct"
    
    
• In many cases, the victims of corporate killing would be in a vulnerable position. The workers who die may well not be unionised, receiving low pay and are easily "bought" off by the company. In fact, the corruption within the criminal justice system may ensure that the company is never prosecuted
  
  
• it is in the interests of the standing and reputation of the UK. The reputation of Britain would undoubtedly be seriously effected if it was known that British companies can commit manslaughter abroad, causing the death of foreign nationals, yet escape prosecution.
  
  
• There is a danger that British companies that commit homicide will not be prosecuted in the foreign jurisdiction - even when offences exist. There is therefore a problem with whether these offences are "justiciable".

Comparison to Civil law Practice
We have also been advised by the Solicitors Human Rights Group, that the "Government's position on the territoriality of the offence of corporate killing does not accord with current practice relating to civil claims." Whilst civil law jurisdiction issues should not necessarily determine criminal law jurisdiction questions, it is important that the Government should be aware of the anomalies that could be produced if there is too much inconsistency in the two legal regimes. In relation to civil law claims involving injury in a foreign country where the responsible company is based in England:

• the double actionability rule - the civil version of the "dual criminality" rule - was abolished in 1996.
  
  
• under Article 2 of the Brussels Convention 1968 (as enacted into UK law by the Civil Jurisdiction & Judgements Act 1982) "persons domiciled in a contracting state should, whatever their nationality, be sued in the courts of that state". Under Article 53 of the Convention, the "seat" of a company shall be treated as its domicile. By s.42(3) of the Civil Jurisdiction & Judgements Act 1982, a corporation or association has its seat in the UK if
  
  
  • it was incorporated or formed under the law of a part of the UK and has its registered office or some other official address in the UK; or
    
    
  • its central management and control is exercised in the UK.
    
    
• under the draft Hague Convention on Jurisdiction and Foreign Judgements in Civil and Commercial Matters (drawn up by the Hague Conference on Private International Law) "a defendant may be sued in the courts of the state where the defendant is habitually resident" (draft Article 3). For the purposes of the Convention, a non-natural person shall be considered to be habitually resident in the state:
  
  
  • where it has its statutory seat;
    
  • under whose law it was incorporated or formed;
    
  • where it has its central administration; or
    
  • where it has its principal place of business

Principle and Public Policy.
There are also important points of principle and public policy, why extra-territorial jurisdiction should exist for the corporate offence

• Deterrence?: Without the threat of legal action and accountability, there is no incentive for English companies to improve or maintain acceptable standards of health and safety in the workplace or environment of the overseas operation. Often the vulnerable workforce, and the relatives of a deceased, will be non-unionised, have difficulty in obtaining legal representation or be intimidated against seeking a criminal investigation. The host state may have insufficient resources to conduct a criminal investigation or be reluctant to do so; even though criminal sanctions may exist on the statute books, they may therefore rarely be enforced. The current proposals, therefore, have no deterrent value for companies with dangerous overseas operations, particularly in the developing world. Yet the importance of deterrence has been acknowledged by the Home Office as being one of the reasons why it decided to allow English courts to have jurisdiction over corruption committed abroad by British citizens and companies. It stated:

  "we have also considered whether we should go further and extend nationality jurisdiction to such an offence, recognising that this could send a strong deterrent message that the UK is determined to act against corruption wherever it occurs. This is a message which would have real persuasive and dissuasive force and which would back up existing codes of conduct."

  The Home Office could use these exact words in relation to corporate homicide offences. Unless English courts have jurisdiction over corporate homicide offences, there is no action that British courts could take against companies operating abroad - however recklessly or negligently they may have acted and however many people they may have killed. There would be no deterrence.

• Equal treatment?: If the Home Office proposals stand, companies (which are legal entities separate from the individuals which comprise them) will obtain preferential treatment compared to individuals who commit the offence of homicide. Whilst individuals that commit homicide offences outside Britain can be prosecuted in Britain, companies can escape any form of accountability for one of the most serious offences in English law. This inequality before the law is unacceptable. The same rules of jurisdiction should apply to homicide - whether committed by individuals or companies. Furthermore, if it is the case that companies under current law can now be prosecuted for manslaughter committed abroad (see above), then the Government will actually have decided to restrict jurisdiction of British courts over British companies that commit homicide offences abroad.

• Bizarre results?: The Home Office proposals could also have bizarre results. It could well mean that although a company could not be prosecuted for the offence of corporate killing when committed abroad, a company could still be prosecuted for one of the new individual homicide offences when committed abroad. This is because if a company director or manager was prosecuted, then the identification doctrine would apply, which could mean that the company (if deemed a "subject") could be automatically prosecuted. It simply does not make sense that a company could be prosecuted for homicide in one instance but not in the other.

• Poor Corporate Conduct: This Government increasingly recognises that some British companies do operate abroad without proper regard to the safety of workers of the public in that jurisdiction. It also acknowledges that when such behaviour takes place it is totally unacceptable. As Clare Short has stated, we cannot "tolerate abusive and hazardous working conditions, poverty pay, slave labour or the denial of the right to freedom of association." The Government is working hard to persuade British companies to operate safety and responsibly. In light of this concern, it is therefore totally inappropriate for companies to be allowed to commit homicide abroad with impunity. This is not about regulation, it is not a challenge to the Codes of Conduct. It is simply asserting that companies must not be above the law and the British courts have a proper role in taking jurisdiction over the most serious crimes that companies can commit.

It is disapointing that the Home Office does not apparently share the view of the European Parliament that the home states of MNEs have a role and responsibility in monitoring the overseas activities of MNEs and enforcing good practice. In this age of increasing globalisation, there is a duty on the UK Government to ensure UK companies behave responsibly abroad and are held accountable for their actions. We consider extending the territoriality of the proposed offence of corporate killing would help fulfil this duty.