The charge of corporate manslaughter is designed to ensure that companies and other organisations are properly held to account for gross failings resulting in fatalities. The Government's draft bill for reform states that, since 1992, only six small organisations out of a possible 34 prosecution cases have been convicted for work-related manslaughter.
Many perceive this as a real lack of accountability, causing increased public concern. Instead of addressing the problem, many organisations have grown increasingly risk averse, resulting in instances such as the banning of conker games in school playgrounds, removal of hanging baskets and the felling of overhanging trees.
Existing legislation has resulted in court cases that are time-consuming, resource-draining and costly. It has been extremely difficult to prove liability, without which it is virtually impossible to prove gross negligence.
As a result, the Government has drafted a reform bill, which they hope will 'strike a careful balance' between organisations being held to account for gross negligence, while ensuring that corporate manslaughter charges are reserved for the most serious cases - not to be confused with an incident such as a breach of health and safety regulations.
Reactions to the bill
For some, the bill is seen as a major catalyst that will assist in the drive to establish strategic risk management at the core of corporate decision-making and further embed risk management practices throughout their respective organisations. However, for others, many of the proposals are unworkable and require clarification before being welcomed.
ALARM is among those concerned with ensuring that the proposals are properly considered and provide genuine resolutions to the problems currently being experienced. Chief executive Bob Cope, believes that, although the proposed reforms will help to overcome many of the defects within current legislation and provide clearer, more effective, laws for prosecuting those who are to blame for involuntary manslaughter, there are nevertheless many aspects of the proposals as they relate to risk management that are unrealistic.
There are also serious omissions in the proposals. He is consulting widely with the ALARM membership and other interested bodies to ensure that these concerns are drawn to the Government's attention.
He says that: "Despite previous attempts to improve this sensitive area of legislation, particularly where corporations are concerned, the present law remains unclear and needs significantly improving. It is essential that the law is made clearer and more effective, not only to restore public confidence, but also to gain a better understanding of individual and collective responsibilities for acts of gross negligence that cause death, and to ensure that offenders are properly held to account. However, the new proposals require strengthening, in order to achieve the desired objectives".
Although the bill states that organisations who take their health and safety obligations seriously have nothing to fear, these regulations are frequently revised and updated. All organisations should remain aware of the potential legislative changes taking place in health and safety and be ready to meet those requirements.
'Driving for work' is another issue requiring attention. A fatality during a work journey could be a potential basis for a corporate manslaughter case and also needs consideration in the context of these proposals.
The same is true of 'work-related stress.' Although it is a recognised problem, if an employee suffering from work-related stress takes their own life, is there a case for compensation? There is already a precedent for this in Japan, and this potential exposure needs to be flagged up as an issue for the UK.
The draft bill also proposes the removal of general Crown Immunity for Government bodies. Concerns have emerged as to whether this will encourage risk averse behaviour from organisations such as the emergency services, reliant on their speed of action and professional spontaneity. In extreme cases, will they be reluctant to take as many risks for fear of prosecution, and what is the likely cost in human life of such delays in emergency situations?
One of the major problems with current corporate manslaughter legislation is that it can be hard to identify which parties are liable for prosecution.
The draft bill mentions the concept of the 'directing mind,' which may be easy to identify in a small organisation, but is likely to be considerably more difficult in an organisation with a staff of thousands and a complex internal structure.
This is particularly true of large public sector organisations, such as local councils, the NHS or the police and fire services, where there are not only internal relationships but inter-agency links to consider.
Complicated management structures, contractual commitments and responsibilities and unclear hierarchies, mean that the concept of the 'directing mind' needs far more clarification than is currently provided.
A final concern is the issue of an unlimited fine. With no upper limit mentioned, public sector organisations in particular may be fearful of how expensive a potential fine could be, especially in light of the financial costs incurred by organisations that have been prosecuted in the past.
With the experiences of Greater Manchester Fire and Rescue Service and Barrow-in Furness Borough Council highlighting the threat of corporate manslaughter cases to the public sector, the proposed legislative changes could not have come at a better time, but they will need to recognise the issues being raised to achieve the long overdue improvements.
Written by Catriona Mackie, on behalf of ALARM - The National Forum for Risk Management in the Public Sector.
