Corporate killing: Who’s to blame?

Corporate killing: Who's to blame?

The government is facing the challenge of developing a law that can prosecute negligent companies, but better adherence to health and safety laws is also key, say experts. Larry Schlesinger explains why directors should fear the new long-awaited corporate killing bill

In May 2003, nearly a year to the day after a WAGN train bound for Kings Lynn in Norfolk derailed at Potters Bar, killing seven people and injuring 76, home secretary David Blunkett announced that a draft bill on corporate manslaughter would finally be published in the autumn introducing the new offence of corporate killing.

If passed, a company or an organisation as a whole could see themselves charged with the offence of corporate killing where, as the result of systematic management failure resulting in death, their behaviour was found to fall below what could be considered ‘reasonable in the circumstances’.

The bill’s primary aim is to close a gap in the law that had resulted in the failure of nearly all previous attempts at prosecuting large companies for corporate manslaughter. For the first time, an organisation as a whole could be prosecuted without having to identify evidence of a ‘controlling mind’ behind the tragedy.

Cases such as the 1997 Southall train crash, which killed seven, and the 1987 Zeebrugge ferry disaster, in which 187 died, saw both Great Western Trains and P&O European ferries cleared of manslaughter charges because of the inability to point the finger of blame at a director or manager.

An insight into how the law might apply was outlined in a letter sent out in September 2002 to industries most likely to be affected by the new offence. The Home Office emphasised in the letter that the new proposal would target ‘management failure’ covering ‘substantial and operating causes including diffuse negligence of health and safety requirements, which are endemic in the organisation and result in the death of an individual’.

The Home Office believes its proposals will close this ‘gap’, but insists that directors must not be put on trial as ‘scapegoats’, although they can still be prosecuted in their personal capacity under the common law offence of manslaughter.

Blunkett’s promise of a new offence is a long time coming, having first been proposed by the Law Commission as far back as 1996, and pledged by Labour in its 1997 election manifesto.

It has drawn many and varied responses, not surprisingly, given that this is a highly sensitive and potentially costly issue for big business and an incredibly emotional one for those directly affected by such tragedies.

But most agree that the status quo needs to change. Michael Caplan, QC, and a senior partner at Kingsley Napley solicitors, says the current law is unacceptable as it means you have to prove ‘those who control and manage the affairs of the company, are in fact the company itself’.

Caplan is concerned about how the law is being envisioned and says the government might have to further define terms like ‘management failure’ and ‘falling below what could reasonably be expected in the circumstances’.

The reaction of business appears to be mixed. The Institute of Directors welcomes the government’s proposals, but would like to see further steps taken, while the CBI says enforcement of health and safety is the key issue.

Ruth Lea, head of the policy unit at the IoD, agrees that the problem is identifying a controlling mind, but feels that, if it is possible to identify an individual to blame for a tragedy, then it should be possible to prosecute such a person under the corporate manslaughter offence.

‘The law should target real recklessness and we are in favour of unlimited fines,’ Lea says.

On the other hand, the CBI has never been in favour of individual directors being targeted, believing that such steps would be unfairly harsh on responsible firms with good health and safety practices.

It believes good health and safety practice comes from a ‘shared responsibility across the workforce’.

Jude Grandison, senior policy adviser for health and safety at the CBI, says the law itself is not the issue, but gathering evidence and enforcing the health and safety regulations are, meaning that more H&S inspectors are needed.He believes the whole mindset must change: ‘We want companies to be proactive, to report health and safety and environmental issues in the annual review, but we don’t need legislation, we need a change in business thinking.’

David Bergman, director of the Centre for Corporate Accountability, agrees with Grandison that the current health and safety requirements are sufficient.

However, he is more optimistic about the proposed legislation.

‘Where there has been gross negligence in the past, companies have been able to escape accountability. This law will ensure that they cannot escape,’ he says.

But the relatives of those killed are not so convinced.

Author Nina Bawden, whose husband Austen Kark was killed at Potters Bar and herself seriously injured, says that for health and safety regulations to be enforced there must be the threat ‘of someone going to jail’.

‘Under the proposal you will only be able to fine companies. The law needs to change to make directors liable,’ says Bawden.

Anne Jones’ son, Simon, was killed in 1998 on his first day doing casual contract work at Shoreham docks. She believes the decision to exclude individual directors from being targeted is a retrograde step.

‘It will shield the decision makers, who have the power to make the necessary changes to ensure a safe working environment, from being held to account for failing to do this.’

She says an offence of corporate killing will have the advantage of prosecuting a company without identifying a controlling mind, particularly where there are multiple layers of responsibility, but believes this should not exclude ‘individuals being targeted where it can be shown that they were culpable’.

Clearly, the government faces a difficult challenge in developing a law that results in prosecution of negligent companies, but that more importantly results in adherence to the health and safety code.

But no one should hold their breath. The government has dithered on this proposal for more than seven years and with no deadline set it could be years before any such offence enters the statute books. As one spokesman from the Home Office says: ‘There is no presumption as to how long this is going to take.’Email [email protected]

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