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Corporate Manslaughter and Corporate Homicide Bill

My Lords, I declare an interest, which I have previously declared, as a member of the Prison Service and National Offender Management Service boards, as set out in the register. However, my views on the Prison Service are purely my own. The Government have altered their stance on the Bill quite considerably, and I much preferred their original stance. I am not convinced that applying to the Prison Service the terms of the Government’s current wording in the Bill will reduce the number of deaths in custody, but I shall vote with them because their proposition, which still implies that an order will be appropriate at some stage, may not be quite so damaging as the alternative on offer, with its more immediate application to the Prison Service. The Prison Service operates in a very different climate from that of the organisations and companies to which the Bill was originally intended to apply. It cannot turn away its customers on the basis that they are violent, unstable, have drug or alcohol problems, or present a threat to others. It does not have customers who are happy to be using the service on offer. It cannot control the mix of prisoners or where they come from. Only in the circumstances of being full to bursting has it control over the number of prisoners. Yet the Prison Service does not determine its own budget and, thus, the money available to meet operational requirements is determined in part by others. It does not have control over levels of investment to ensure, for example, that the prison estate is fit to meet today’s needs. It is in a position where acts of violence, disturbances, challenges to authority and incidents of self-inflicted harm or death are an everyday possibility at best and an everyday occurrence at worst. It does not need a failure by senior management or staff to result in injury or death to a prisoner, whether self-inflicted or otherwise. Failures by the Prison Service have, however, contributed to deaths; we have heard about them during the discussions on the Bill. There have been inquests, independent inquiries and investigations, some very high profile, into such tragic incidents, as there are into every death, self-inflicted or otherwise. The decisions in these cases, including the Mubarek case, have not laid sole responsibility on the Prison Service. Any inference that, had this Bill been in force at the time, a corporate manslaughter charge under the criteria laid down in the Bill would have been successful or even laid in the tragic incidents referred to during the discussions on the Bill, is less open to question. Will the Government’s wording in the Bill reduce or increase the likelihood of such incidents, and will the same apply as far as the amendments that have been moved? Will this Bill change the way in which the Prison Service functions, in particular the approach and practices of its senior management faced with the prospect of potentially being literally in the dock if the service faces corporate manslaughter charges? I believe that the answer is that it could. However, the question that needs some thought is ““how?””. I would have thought that the application of this Bill to the Prison Service will make the service much more cautious in its approach. Surely there will be an impact of some sort on prison capacity. There will be less willingness to have sharing of cells, since the Prison Service will want to eliminate any potential risk arising from sharing cells, including in relation to prisoners who have arrived only recently and about whom less is known. Some would argue that this is a step in the right direction, but clearly it has potentially serious implications at a time when prison capacity is already at full stretch. If prison capacity is lower than it would otherwise be as a result of the Bill’s impact on the Prison Service, then in the absence of shorter and fewer custodial sentences, presumably further numbers will need to be let out earlier than they would have been. Most of our prisons were built many years ago and many cells still have ligature points. The investment has not been made to eliminate them and levels of investment are not determined by the Prison Service. Could it be corporate manslaughter to put someone in a cell with ligature points on his or her own if that person then carries out a course of action which results in a self-inflicted death using a ligature point? I am sure that some will campaign vigorously for such a charge to be laid. The climate already may be beginning to change. Some feel that a more robust approach is being adopted to the questioning of Prison Service staff following a death, including questioning under caution. I would suggest that the result could well be that the Prison Service increasingly adopts an approach designed to minimise the likelihood of its facing corporate manslaughter charges, rather than an approach that seeks to minimise the likelihood of incidence of self-inflicted harm or death. The Prison Service may currently take a view based not on capacity issues but on what it sees as an individual’s behaviour and manner and in the absence of any documentation or information indicating to the contrary that it would be helpful to such an individual not to be alone in a cell but to be sharing with someone. Why, though, in the future? Let us consider that slight risk of there being an incident in the shared cell when the prospect for the service could be a corporate manslaughter charge. The service cannot, by definition, get any credit for saving a self-inflicted death due to a decision to share a cell, because no one knows whether such a tragic incident would have taken place in the absence of such action. However, if the decision backfires and a death results, the evidence will be all too obvious. The likelihood of avoiding a corporate manslaughter charge in the event of a self-inflicted death will surely be greater if the service has simply played it safe, put the individual in a cell on his or her own and made checks at the required intervals. It is more likely that the Prison Service will not even face a corporate manslaughter charge being laid let alone found proved in the case of a self-inflicted death than it would be where what was regarded at the time as a well-intentioned judgment based on the absurd behaviour and manner of an individual went wrong and a self-inflicted death or murder in a shared cell was committed. I do not know what the overall impact on incidence of self-inflicted harm and death will be if the Bill applies to the Prison Service. I am not able to assert that it will lead either to a reduction or an increase in such incidents. I simply make the point that there is a credible possibility that it could result in the Prison Service playing safe and gearing its approach to reducing the prospect of facing corporate manslaughter charges being brought, and in so doing an outcome could be the unintended consequence of an increase in incidence of self-inflicted harm or death. My own view is that more work needs to be done to ascertain what the Bill’s actual impact on the Prison Service and the incidence of death, self-inflicted or otherwise, is likely to be before making a decision on whether to proceed to apply it to the Prison Service. Is my noble friend able to give an assurance that under the Government’s current position on this Bill, as set out in the amendment, there will be no move to apply the corporate manslaughter provisions to the Prison Service unless an appropriate investigation has been undertaken into the likely impact of the Bill on the way that the Prison Service operates and the number of deaths in prison, with the results being published, including the evidence for any conclusions reached about the impact on the number of deaths, whether it be an increase or a decrease?