Peter Campion, assisted by Asam Khan, discusses the implications of the proposed new UK offence of corporate killing.
UK Home Secretary Jack Straw issued his consultation paper, Reforming the law on involuntary manslaughter, in May. It confirmed the government's intention to introduce a new offence of corporate killing. It came four years after the issue of the Law Commission Report on which it is based, and 31 months after the Labour government's commitment to reform.
It was inevitable that the government would have to act. Over the past 15 years, several horrific disasters have focused public attention on the apparent impossibility of bringing directors and senior executives to account for fatalities for which their organisations are perceived to be responsible. The catalogue of tragedy includes:
It is true that the Southall crash led to a record fine of £1.5m against Great Western Trains under the Health & Safety at Work Act 1974. However, despite what Mr Justice Scott-Baker described as "a serious fault of senior management", there were no charges of manslaughter against any of the senior managers involved. Similarly, prosecuters dropped manslaughter charges against P&O European Ferries after the Zeebrugge disaster.
To pursue such charges, prosecutors would currently have to prove gross negligence on the part of individual executives of sufficient seniority for their actions to be equated to that of the organisation itself.
This requirement, known as the "identification" doctrine, has been established for nearly sixty years. Its effect is that a company can only be convicted of manslaughter if an individual who can be "identified as the embodiment of the company itself can first be shown to be guilty.
The larger a company and the more complex its lines of communication and responsibility, the less likely it is that it will be prosecuted under current legislation. Furthermore, less respectable organisations can avoid liability by deliberately delegating responsibility to non-senior individuals. Even if these failed in their duties, they could not satisfactorily be identified as the embodiment of the company.
Over the past ten years, there have only been two successful convictions for manslaughter in this field. Each was against the director of a one-man company, who had himself been found guilty of manslaughter, thus automatically establishing the company's liability. Larger organisations have so far escaped because of their sheer size.
Punishing the guilty
In the light of this, in March 1996, the Law Commission recommended introducing an offence of "corporate killing". The government's consultation paper embraces many of the Commission's proposals and a new Bill will be laid before parliament by the end of the summer. The new offence is likely to apply to all "undertakings", defined as "any trade or business or other activity providing employment". This includes not just corporate bodies, but also schools, hospital trusts, partnerships and other single principal businesses. As many as 3.5 million enterprises would become potentially liable.
The new offence will be broadly akin to causing death through gross negligence. The relevant tests will be whether a management failure by the organisation has caused a death and whether that failure constitutes conduct falling far below what could be reasonably expected. The legislation will allow prosecution of the offending company's parent or other group companies, if their own management failures were a cause of the death. The offending organisation may be fined and ordered to take remedial action.
The government also proposes punitive sanctions against offending company officers. This means that any individual officer who is found to have had some influence on, or responsibility for, the management failure may be disqualified from office for a period, or even permanently. For this purpose, there is likely to be a separate offence of "substantially contributing" to the corporate offence. The government appears to intend that such an offence may also be punishable by personal fines or a term of imprisonment, although no final decision has been announced.
Several commentators argue that the proposed reforms do not go far enough. Why should the identification doctrine, clearly found wanting in relation to manslaughter, continue to be the yardstick by which corporate failures causing other serious injury are judged?
They also question the proposed role of the Health & Safety Executive (HSE). Investigation and prosecution of corporate manslaughter will lie in the first instance with the HSE. If, during the course of its investigation, it transpires that responsibility for death at work lies with individuals, it may liaise with the police or Crown Prosecution Service.
Critics point out that the HSE already has far reaching powers under the Health & Safety Act to charge officers as individuals, but it rarely pursues this avenue. Between 1992 and 1998, the HSE prosecuted 13,088 offences. It only charged 124 directors or managers. The limited number of individual convictions suggests that the HSE i unable or even unwilling to pursue individuals. This ma) well be because of under-resourcing and undermanning. The government has tabled no proposals to address func ing issues.
Other commentators believe the proposals are a politi cal attempt to create individual scapegoats for what are often complex problems. Ruth Lea, head of policy at the Institute of Directors, has taken issue with the prospect of directors facing fines and imprisonment for offences < which they were simply not aware. This may raise huma rights issues
Whatever the immediate impact of the proposed legis lation, its introduction will no doubt be presented as a benchmark attack on corporate slovenliness. It is unlike to be the only such legislation.
Peter Campion, partner, and Asam Khan, paralegal, are both wi Fishburn Morgan Cole.
Reducing the risk
In order to reduce the risk of liability under the future corporate manslaughter legislation, all businesses should review their safety policies in areas where their activities might place life in danger.