A missed opportunity

After nearly a decade of planning, new legislation has been published that
will ensure companies are prosecuted if their negligence leads to the death of
employees or the public.

The corporate manslaughter bill creates a new offence of corporate
manslaughter, and should provide a more effective sanction for holding companies
and other organisations accountable when management failure has proved fatal.

Courts will now be able to take account of a wider range of management
conduct and ‘any other matters relevant to… the breach’. Up until now the number
of prosecutions brought to the HSE has been far too low. One suspects this is a
result of evidential difficulties in trying to prove who is responsible. The new
bill should end these problems.

However, perhaps the most glaring missed opportunity is the failure to
perceive causing serious injury (as a result of gross negligence by the
management) as an offence. The bill is limited to breaches leading to
fatalities. This omission is beyond comprehension, given that from 2003 to 2004
over 160,000 people were injured at work compared to 235 fatalities over the
same period. The bill sends out completely the wrong message to companies and

The Home Office goes as far as saying ‘this (bill) will not introduce new
standards, organisations taking their current health and safety obligations will
have nothing to fear’. I am sure that this will provide little comfort to those
injured at work.

One area the bill has opened up is the liability of government departments
and other Crown bodies who in the past have been immune from prosecution.
However, the bill will apply to these departments and bodies, but only when they
are engaged in similar activities to private sector companies and industries.
The bill will not apply to certain core public functions or decisions relating
to matters of public policy, as it is said that they are subject to existing
lines of public accountability. In practice, this means the bill will apply to
the Armed Forces but not to their activities in relation to planning, preparing
or supporting combat operations. It will, however, apply to NHS trusts. I can
foresee increased numbers of prosecutions brought against trusts in
circumstances where the treating doctor is not properly supervised or has
insufficient training.

While I am encouraged by the attempts to deal with the question of corporate
manslaughter, I am disappointed that a decade’s worth of planning has yielded
legislation that fails to tackle the increasing numbers of accidents in the

Sarah Dineley is a solicitor at law firm Thomas Eggar

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