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Corporate manslaughter: Still against the law


 A step change in the way we prosecute

The Corporate Manslaughter Act will come into force in April next year, making it easier to prosecute larger firms that neglect their workers’ safety. For the law abiding majority, the change will be of little significance, but Matt Henkes asks if the new law goes far enough to force those in power to account for their failings?

After seemingly endless wrangling and debating, legislation governing corporate manslaughter has finally received royal assent, making it easier to convict larger companies over the death of an employee at work.

In the past, it has been notoriously difficult to secure a conviction on this charge because the law required that an individual identified as the ‘controlling mind’ of the company be directly linked with the negligence. This meant that generally only smaller companies were convicted. For larger companies, establishing such a connection through multiple layers of management was all but impossible.

Now, the new statutory law, which comes into force on 6 April 2008, means if a fatality can be proved to have resulted from a ‘gross failure’ in the way health and safety precautions were managed or organised, the firm can be convicted of corporate manslaughter. Therefore, investigations will look at a broader area of management below director level; contract managers, commercial managers and in certain construction companies, on site managers.

“It’s a step to changing the way you prosecute for this type of offence. You’ve got to realise that you don’t change the law overnight, it takes some time.”

Michael Caplan QC, Kingsley Napley

There will be a number of things that juries will need to consider, such as whether the evidence shows the organisation failed to comply with relevant health and safety legislation, attitudes and policy systems and how serious that failure was.

Broader sweep

The law is designed to make it easier to prosecute larger organisations that in the past have proved untouchable under corporate manslaughter laws. Michael Caplan QC, a partner at law firm Kingsley Napley and one of the country’s leading solicitor advocates, gave evidence to a parliamentary committee during the consultation on the act. He says only time will tell whether it will result in a greater number of convictions. “My initial feeling is that it’s likely to catch a broader band of companies but I think we’re going to have to see how the new law is interpreted,” he says. “You won’t know that until you get a couple of cases before the court.”

What was called the identification principle, where you had to identify the controlling mind, clearly posed a lot of difficulties, he adds. But now the initial problem will be for the courts to decide exactly what is meant by management failure. “Until we know how juries are going to interpret that it really is going to be difficult to see whether this is going to make a massive change,” says Caplan.

For many, the new legislation has missed an opportunity to heap real pressure on company directors to ensure the safety of their workforce but Caplan urges patience. “It’s a step to changing the way you prosecute for this type of offence,” he adds. “You’ve got to realise that you don’t change the law overnight, it takes some time.”

One rule for them…

However, Hilda Palmer, an official at the pressure group Families Against Corporate Killers (FACK), believes the proposed punishments for conviction under the act will not provide enough of a deterrent for firms to shape up. “An unlimited fine can already be levied under the health and safety at work act,” she argues. “But what has happened in practice is that apart from a dozen or so fines over £100,000, the average fine for a health and safety breach is just over £6,000, and much less in Scotland.”

FACK believes what is needed is a system of custodial sentences to be levied on the people in charge. “Secondary offences of individual liability on directors are required,” she adds. “The fact there aren’t any legal duties on directors for health and safety like there are for finance means that this act will fail to hit the mark.”

Last week the Sentencing Advisory Panel suggested a raft of proposals on what punishments might be handed to firms found guilty of corporate manslaughter. Measures included remedial orders instructing the offender to correct any failures, ‘significant fines’ based on a percentage of annual turnover and publicity orders.

“Why should the people who stand to benefit from the activities of an organisation not be accountable for its activities when that company kills people? It doesn’t make any sense and it’s unjust.”

Hilda Palmer, Families Against Corporate Killing

The potential brand damage this sanction represents could be massive. The panel suggested the offending company be ordered to place advertisements in newspapers, trade journals and even on TV and radio. It also proposed that convicted organisations be ordered to send letters to shareholders and customers detailing the nature of the failure and fine.

But large-scale media coverage of big cases is virtually a given, so Palmer doesn’t see that an enforced publicity order will provide much extra deterrent. “There is obviously the idea that the reputation implications of being charged with corporate manslaughter will be so great that it will do huge damage to a company,” she says. “But frankly, given what’s happened in the past, I don’t see that. Why should the people who stand to benefit from the activities of an organisation not be accountable for its activities when that company kills people? It doesn’t make any sense and it’s unjust.”

Steffan Groch, partner and head of health and safety at law firm DWF, has some sympathy with this argument. He feels the new act may have missed an opportunity. “My experience is that when you talk to people and you start to personalise liability – when you start to say to someone, ‘you have to do it because if you don’t, you’ll attract a criminal conviction’ – that’s the threat that really hits home.”

Not much to fear

Last week, David Blunkett, a man who wrestled with the bill for a number of years in his role as Home Secretary, told UK directors they had nothing to fear from the new legislation. New policies and procedures should not be needed as the act doesn’t actually create any new obligations for businesses.

Providing your company already adheres to health and safety regulations there’s little reason to fret – a point supported by David Bergman, chief executive of the charity, Centre for Corporate Accountability. “If you are an organisation that is already compliant and you’re confident that you provide adequate training, instruction, supervision monitoring and all things that are required by health and safety law, then you will be fine,” he says. “Obviously, it would be sensible for any senior manger in the organisation to be certain this is the case with their company.”

Groch says he has been advising his clients to ensure that, at the very least, all the company directors understand what the act is about. “It is absolutely fundamental that senior managers get it right,” he says. “The scope of accountability is wider. Senior managers have always been responsible for health and safety but they’re now going to be more accountable on behalf of the company for what happens. If they don’t do what they should, their failings will bind the organisation.”

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