Manslaughter bill lets top directors escape justice

No real convictions
[Hazards 90, May 2005]

One of the last acts of Labour’s second term in government was to publish the very long awaited draft corporate killing bill. David Bergman, director of the Centre for Corporate Accountability, says the draft falls short in several crucial respects – not least the omission of new directors’ safety duties carrying a real prospect of a jail term.

It has been so long in coming that it is difficult not to welcome its arrival; but the publication by the government of a draft corporate manslaughter bill has to be treated with a good deal of caution.

It is not that there is not much to welcome in the bill. It does create a new homicide offence that should make it easier to prosecute companies: a company would under the new offence be liable to prosecution even where there is no evidence to prosecute a single director or senior manager. This should make it easier to prosecute at the very least medium-sized companies for a homicide offence.

And it would not just be companies that would be liable to prosecution for corporate manslaughter. The government’s bill would allow action against crown bodies – including departments of government. This would be the first offence ever to allow the prosecution of Crown bodies.

However, there are a number of reasons why the Bill needs to be considered with great care and also to recognise some inherent limitations of the kind of reform undertaken by the government.

Big fish escape justice

The government has changed the proposed offence considerably from that proposed by the Law Commission in 1996, which the government had itself supported in 2000. The new offence does not just require very serious management failures – it requires that these failures be the responsibility of senior managers.

And the definition of who is a senior manager is quite restrictive. As a result even where a death has resulted from serious failures by the most senior managers of a particular factory the company may escape prosecution for manslaughter - if that factory is simply one of many owned by that particular company.

This is because a person is only a “senior manager” for the purposes of this new offence if they have a “significant” role over at least a “substantial” part of the organisation’s activities. Since control over one factory or one construction site may not be considered a substantial part of a large company’s activities, serious managerial failures at a site or factory level may well not be able to result in prosecutions.

The failure to allow organisations to be prosecuted for all very serious management failures causing deaths could make it particularly difficult to prosecute large companies. In fact the larger the company the harder it will be to prosecute – which is exactly the opposite of what was supposed to be the purpose of the offence, and this Bill.

In addition, the Bill’s focus on senior management may well motivate large companies to delegate responsibilities down the management chain to ensure that any failures that do take place do not result in a manslaughter prosecution against the company. Surely this was not the intention of the new offence?

Crown bodies

Whilst Crown bodies will be able to be prosecuted, there are some significant exemptions in the application of the offence to them. Deaths resulting from “policy making decisions” of public bodies, or from the activities of those responsible for custody of prisoners, will not be able to result in prosecutions, however grossly negligent the conduct of the senior mangers involved may have been.

One can foresee Crown bodies desperately trying to show that any death resulting from their activities is linked in some way to public policy decision making on its part – and thereby guarantee their immunity from prosecution.

Gross negligence test

Another concern about the offence concerns what evidence is required to prove that an organisation has acted with “gross negligence.” The bill proposes that a jury in assessing the conduct of the company, must consider whether senior managers “sought to cause the organisation to profit from that failure.”

Whilst this may well be a reason why companies fail to observe proper safety standards, it is an extremely difficult thing to prove. Furthermore, simply surely a lack of care on the part of senior managers, if serious enough, should allow organisations to be convicted.

This requirement could well be the magic bullet in a defence case for companies, who will argue to the jury that the fact that the prosecution can not find such evidence should mean they must be acquitted.

Directors’ duties

Trade unions have emphasised the fact that the proposed bill does not allow for the prosecution of directors and will not make it any easier to hold them to account. In 2000, the government argued in its first consultation document on this matter that the Law Commission was wrong in 1996 in not considering the accountability of company directors or senior officers.

At that time, the government stated that it was concerned that an approach that did not deal with directors “could fail to provide a sufficient deterrent, particularly in large or wealthy companies or within groups of companies; and… would not prevent culpable individuals from setting up new businesses or managing other companies or businesses, thereby leaving the public vulnerable to the consequences of similar conduct in future by the same individuals.”

The government suggested at the time there should be an additional offence which would allow a senior company officer to be prosecuted for “contributing” to the offence committed by the company.

The government has now done a u-turn. The new Bill does not engage at all with the current lack of accountability of company directors. The reasons why the government once thought there should be increased accountability of directors have now been ignored. The fact that only 11 directors have ever been prosecuted for manslaughter and all these cases have related to the activities of small companies appears to be of no concern to the government now.

Further, the government’s failure to support Stephen Hepburn MP’s recent private member’s bill, which would have imposed safety duties on company directors, indicates that the government does not intend to address the issue though other legislation.

Possible penalties

Another key issue relates to sentence. The only real penalty that the courts can impose on a guilty organisation is an unlimited cash fine - if the HSE is doing its job properly the need for remedial orders, another penalty available, will be redundant.

Cash fines against a company can of course be very devastating if they are large enough – though courts rarely seem willing to impose such penalties. In addition, large fines can have serious knock on effects upon workers, if for example the company makes them redundant to pay for the fine.

The government has still not given any consideration to equity fines, which require companies to issue shares that then go into a compensation fund and which do not hit the cash reserves of a company but effect its value, or adverse publicity orders, which require companies to advertise their conviction and can have serious reputational effects. All these measures have been supported by the TUC (Hazards 87).

The issue of fines is particularly pertinent to the sentencing of Crown bodies. What is the point to fining Crown bodies – when the penalty simply returns into the pocket of the Treasury? On this point at least the government is open to suggestions of alternative forms of sentence for crown bodies.

GBH and diseases

It is important to look at this bill in a wider context. It only deals with grossly negligent conduct causing deaths – not serious injuries. There remains a serious accountability gap in relation to very serious injuries, that will at the most result in a prosecution for health and safety offences.

The new offence will also have no impact upon most deaths resulting from industrial diseases where the culpable conduct took place a long time ago and where the responsible company or its insurer may not exist anymore.

What’s this mean?

So what does it all mean? Will the new Bill, if passed in this form, result in more organisations being prosecuted and improved worker and public safety?

It is difficult to say but there are clear indications that a number of changes made to this Bill since the 2000 Home Office consultation have been the result of successful business lobbying, and the Centre for Corporate Accountability will certainly be looking for some significant changes to the draft before giving its support to this Bill.

References

Home Office news release • Corporate manslaughter: The government’s draft bill for reform • The Home Secretary’s announcement of the draft bill in the Commons, Hansard, 23 March 2005
Draft corporate killing bill – TUC briefing • TUC news release
CCA news release and related manslaughter webpage.

Action

Have your say! The draft Bill has been published for comment. Responses should be sent by 17 June 2005, by email or post, to: The Corporate Manslaughter Bill Team, Home Office, Fry Building, 2nd Floor, 2 Marsham Street, London SW1P 4DF. Respondents should include their name and a contact address.