IS IT back to the drawing board for corporate manslaughter laws? A joint report published just before Christmas from two parliamentary committees looked into the draft corporate manslaughter legislation and was strongly critical of the core proposal that would base corporate manslaughter prosecutions on the failings of senior managers.
The MPs said that, as drafted, the Bill may let some big firms off the hook and create “perverse” incentives to treat health and safety issues less seriously. Instead, MPs said after submissions from more than 150 organisations and individuals, the Government should return to the general approach of “management failure” suggested by the Law Commission more than five years ago. They also recommended that a Bill be introduced by the end of this parliamentary session.
The present law, based on the “identification principle”, is unacceptable to many. The committee pointed to the few successful prosecutions. Just last month the Crown Prosecution Service said it would not bring manslaughter charges arising from the Ladbroke Grove rail crash. Under the present law a company can be convicted of manslaughter only if an individual can be identified as the directing mind of the company and he or she is also guilty of gross negligence that resulted in death. In large companies with complex management structures it has been very difficult, if not impossible, to identify such a person.
In the wake of the Law Commission’s report in 2000, the Government published a draft Bill bringing in an offence of corporate killing. The Bill was wideranging, allowed for the prosecution of individuals as well as corporations and provided sanctions in the event of conviction. However, it was not proceeded with. In 2003 David Blunkett, then Home Secretary, said that he would introduce legislation to bring corporations to account. Nothing happened. Now, after the publication last March of the draft Bill, the Home Affairs and Work and Pensions committees have strongly suggested that an offence should be based around management failures — a return broadly to the proposal five years ago. The title of the offence should, however, be “corporate manslaughter”, not corporate killing.
The committees believe a test should be devised that “captures the essence of corporate culpability”. It should not be based on any individual but on the concept of management failure. It would relate to “either an absence of correct process or an unacceptably low level of monitoring or application of a management process”. The committees felt that the basis of liability was “more complex than it needs to be” and was not likely to satisfy those who had been previously let down. There would also undoubtedly be legal argument on the definition of who is a senior manager, bringing in some of the problems that existed with the identification principle.
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There would have to be a gross breach by management. A list of some of the factors to be taken into account is contained in the draft Bill, although this would not be exhaustive. This includes breaches of health and safety legislation; the committees thought it should be extended to include any other relevant legislation as well. The draft proposed also envisaged the jury having to consider whether profits were sought from the breaches. The committees feel that this should instead be taken into account after conviction.
The new offence will apply to corporations as the proposals stand but not to the larger unincorporated bodies. Individuals running smaller unincorporated bodies will be subject to the existing common law. However, the committees urged the Government to look at ways in which leading organisations not likely to be covered, an example given being the larger law firms, could be brought within the scope of current legislation. They also welcomed the removal of Crown immunity but there are a number of exemptions: they term this as Crown immunity by the back door. They also say that the consent of the Director of Public Prosecutions should not be required for the offence to be charged.
Any successful prosecutions against a corporation will obviously result in a fine. After recent highly publicised fatalities, large companies have been subjected to hefty financial penalties under health and safety legislation. The committees noted the introduction of remedial orders but believe that these were unlikely to be used frequently as the Health and Safety Executive and the local authorities would have probably acted by the time the case was concluded. They would prefer some more “innovative corporate sanctions”. They also believe that parent companies should not escape penalty and that individual directors should possibly be charged with contempt if a company does not comply with any orders. That would certainly encourage directors to take responsibility for ensuring compliance with any order imposed by the court.
A Home Office spokesman last week said it was considering the conclusions, acknowledging that changes may be needed. New laws will be seen by many to be long overdue. Those who have been directly affected by big transport disasters have long held the view that the corporation responsible should face prosecution for manslaughter. If convicted it might result only in a financial penalty — similar to that available under breaches of the health and safety legislation. However, there is a stigma attached to such a conviction and it will send out a clear message. Whether corporations are prosecuted and if juries can be satisfied that there has been a management failure remains to be seen.
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The author, a QC, is a senior partner at Kingsley Napley solicitors. He gave evidence before the Home Affairs and Works and Pensions committees