Memorandum by The Centre for Corporate
Accountability (HSE 20)
SUMMARY
The HSE's "enforcement" philosophy,
policy and practice is highly inadequate and leads to thousands
of companies and directors escaping prosecution for crimes involving
serious injury and death. This high level of corporate impunity
has a number of very serious implications:
— it brings into question the integrity
of the criminal justice system built upon principles of due process
and equality before the law;
— it fails to respond to the needs
of families and victims—considered legitimate in relation
to other offences—for moral justice and accountability;
— it fails to establish a system of
deterrence in which companies are deterred from placing the lives
of workers at risk.
HSE's policies are grounded in the flawed conclusions
of the Robens Report which has allowed the HSE, consistently and
explicitly, to place its work outside a criminal justice context.
Our strongest criticisms are directed at the
HSE's failure (between 1996-98):
— to ensure that more than 60 per cent
of major injuries are reported to the HSE; [Para 19]
— to investigate more than 11.2 per
cent of major injuries to workers; [Paras 9-18]
— to prosecute more than 11.4 per cent
of major injuries and 18.8 per cent of deaths; [Paras 21-26,
32-34]
— to prosecute a single director or
manager after any workplace death or major injury;
— to prosecute more than 28 per cent
of death cases in the Crown courts; [Paras 32-37]
— to consider the possible commission
of GBH offences after a major injury; [Paras 28-31]
— to have a consistent investigation/prosecution
policy between regions/industries; [Paras 11, 15, 21]
— to refer more than 1.2 per cent of
deaths to the police where they consider the possible commission
of corporate manslaughter to the police. [Paras 38-41]
The HSE needs to separate organisationally its
preventative inspection work from its injury/death investigations.
It needs to have a different enforcement philosophy for each—one
which emphasises the importance of criminal justice concerns to
its investigation of major injuries/deaths. The HSE's criminal
justice work needs to have a large financial input to stop the
current high level of corporate immunity.
THE CENTRE
FOR CORPORATE
ACCOUNTABILITY
The Centre for Corporate Accountability is a
new organisation, which through research, advocacy and advice
aims to increase the accountability of companies and their senior
officers whose negligent, reckless or intentional conduct causes
harm. The Centre undertakes research into how the criminal justice
system deals with corporate harm and advocates changes to law
and practice where necessary. The Centre's Management Committee
and Advisory Council includes most of Britain's leading lawyers,
academics and "activists" working in this area.[2]
It is the only organisation in the country to have systematically
analysed the HSE's enforcement and criminal justice activities.
This evidence only summarises our concerns.
We would like to be given the opportunity to provide oral evidence
to expand our arguments as well as to suggest a series of necessary
reforms to the operation of the HSE.
INTRODUCTION
1. This year is the 25th anniversary of
the Health and Safety at Work Act 1974 which established the Health
and Safety Commission (and its Executive) as the body with primary
responsibility for the "regulation" of occupational
health and safety in Britain. It is therefore an appropriate moment
that this Committee takes a long and hard look at the operation
of the Health and Safety Executive.
2. This evidence is solely concerned with
the adequacy of the HSE's "enforcement" activities—which
comprises over 50 per cent of HSE's time and budget.[3]
The HSE uses the term, "enforcement activities" to encompass
the Executive's system of workplace inspection, its investigations
of workplace death and injury, and, in particular, the decisions
taken by its inspectors, when breaches of the law are discovered,
about what administrative or legal action should be taken.
THE LAW
3. It is important to clarify the law. In
relation to workplace safety, there are two types of offences
that may be committed by companies and their senior officers.
— a health and safety offence, or
— a conventional offence of violence,
like manslaughter, or inflicting grievous bodily harm. These offences
can only apply after a major injury or death.
4. Health and Safety Offences: The 1974
Act imposes duties upon "employers"—which are
usually companies—to ensure "so far as reasonably practicable"
the health and safety of its employees and others who may be affected
by its operations. The key criminal offence in the Act is proved
by showing a failure on the part of the company to comply with
these duties—which includes the obligation, for example,
to provide proper training, instruction, equipment and a safe
system of work. In effect, this offence is a crime of negligence—based
around the concept of "reasonableness"—without
the usual obligation to show that the breach of duty caused some
harm. A company is prosecuted for the same offence whether or
not death, major injury or no injury took place.
5. A director or senior company officer
can also be prosecuted for a health and safety offence—though
this can only happen in an indirect manner. First the HSE must
prove that the company committed an offence. Then the HSE must
show that this corporate offence resulted from his "consent"
or "connivance" or was "attributable to any neglect"
on his part.
6. Conventional Crimes of Violence: These
are offences which require evidence that:
— the defendant's conduct caused a
death or injury and;
— the conduct in question was done
either "intentionally" as in the offences of murder
or causing GBH[4]
"recklessly" as in the offence of Inflicting GBH[5]
and Administering a Poisonous Substance[6]
or gross negligence as in the offence of manslaughter.
7. As we shall see the HSE does acknowledge
the potential application of manslaughter to workplace deaths.
But it still fails to recognise that offences requiring evidence
of "intention" or "recklessness" could apply.
Yet, in our opinion, it is well within clearly understood notions
of how decisions are made within companies to realise that company
directors or managers will, in certain circumstances, establish
policies or make decisions knowing full well that it would be
"practically certain" that as a result someone will
suffer death or injury—the legal definition of intention.
8. For example, a director could decide
against buying specialist safety equipment having been told (or
having being made aware through a history of incidents), that
this equipment is essential to prevent workers suffering injury.
If a death or injury took place in such circumstances, the state
of mind of the director would be sufficient to ground a prosecution
for murder or section 18 of the OAPA 1861. It is also not difficult
to imagine situations in which directors are fully aware that
their conduct carries with it risks of injury to worker—the
definition of recklessness—when they make particular decisions.
Recklessness is easier to prove than intention: to prove recklessness,
it is necessary to show that the defendant actually foresaw that
some bodily harm might result from the conduct in question.[7]
MAJOR INJURY
9. The HSE does not publish statistics on
its enforcement decisions relating to workplace death and injury.
This indicates how little significance it gives to actions it
takes in relation to major injury and death over its more general
activities. The figures below have not been published before.
10. Workplace injuries reported to the Health
and Safety Executive are divided into two categories:
— Over-Three Day Injuries—preventing
a person from working for more than three consecutive days.
— Major Injuries—these are more
serious injuries, and include amputations, electrical burns leading
to unconsciousness and exposure to biological agents. They are
all sufficiently serious to be categorised as "grievous bodily
harms".[8]
Investigation
11. Between 1996-98, there were 47,803 workplace
major injuries:[9]
— Only 11.2 per cent resulted in an
HSE investigation.
Even large percentages of the particularly serious
categories of the Major Injuries were subjected to low rates of
investigation:
— only 40 per cent of amputations resulted
in HSE investigation.
In addition there were wide variations in investigation
rates, depending on the industry of the injured worker, and the
area in the country where the injury took place:
— 25.2 per cent of major injuries in
agriculture were investigated, compared with 5.4 per cent of those
in the extraction and utility supply industries.
— 13.4 per cent of major injuries in
Yorkshire and North East were investigated compared with 7.2 per
cent in London and South East. Yorkshire and North East also investigated
almost double the actual number of major injuries—987 injuries
compared to 519.
Reported and Investigated Major Injuries
(1996 to 1998) to Workers by Industry
|
| 1996-98 | Injuries Reported
| Injuries Investigated
| % of Injuries Investigated
|
|
| Agriculture | 1,501
| 378 | 25.2
|
| Manufacturing | 16,842
| 2,735 | 16.2
|
| Construction | 8,724
| 1,184 | 13.6
|
| Extraction | 10,146
| 545 | 5.4
|
| Service | 10,590
| 523 | 4.9
|
| Total | 47,803
| 5,365 | 11.2
|
|
REPORTED AND INVESTIGATED MAJOR INJURIES (1996 TO 1998)
TO WORKERS BY HSE REGION
|
| 1996-98 | Injuries Reported
| Injuries Investigated
| % of Injuries Investigated
|
|
| Yorkshire | 7,371
| 987 | 13.4
|
| Wales and West | 7,902
| 1,035 | 13.1
|
| Scotland | 5,042
| 626 | 12.4
|
| Home Counties | 6,690
| 747 | 11.2
|
| Midlands | 7,341
| 798 | 10.9
|
| North West | 6,239
| 653 | 10.5
|
| London and South | 7,217
| 519 | 7.2
|
|
12. Impunity: Every major injury could be the result
of a serious crime—either a breach of health and safety
law or a GBH offence within the Offences against the Person Act
1861. HSE's low investigation rate provides those (uninvestigated)
companies and their senior officers who may have acted either
negligently or recklessly with automatic immunity from prosecution.
13. The prosecution rate for health and safety offences
after major injury (10.4 per cent) is discussed (and criticised)
below. However, one point needs to be made here. There is no reason
to believe that, had the HSE actually investigated the 42,438
injuries which remain uninvestigated, the prosecution rate in
relation to these injuries would be any different. Therefore,
at the very least, assuming HSE's low prosecution rate, around
4,413 companies have escaped prosecution for health and safety
offences involving a major injury, simply because of the low investigation
rate.
14. Lack of Deterrence: Apart from issues of moral justice
and accountability in relation to each individual case, the low
investigation rate into the vast majority of the most serious
of injuries conflicts with any strategy of deterrence. Companies
know that they can cause the most serious injuries with the highest
degree of recklessness, and in most cases remain immune from any
form of criminal inquiry.
15. Lack of Consistency: One of HSE's five "principles
of enforcement" is "consistency".[10]
The huge disparities in investigation rates in one part of the
country from another and in one industry from another appears
to be in clear breach of this principle. The HSE states in its
policy that "Duty holders managing similar risks expect consistency
from enforcing authorities". It is also the case that workers
expect consistent investigation responses to any injuries they
may suffer. Inconsistency in enforcement was probably the key
criticism levelled at HSE by the National Audit Office back in
1994. It stated that "the variation [of investigation rates]
between some Area Offices could be seen to be inequitable by employers,
and may result in significant risks to employees and the public
not being investigated."[11]
16. Bad Record compared to the Police: HSE's infrequent
responses to major injury reports should be compared to the police
response to the reports it receives of serious injury. The Metropolitan
police, for example, categorises certain reports as "incidents
requiring immediate response". This definition includes any
reports of "serious injury to people". The police responds
to all of them. Not only that; the police also has a local target
time of 12 minutes for responding to such incidents, and in the
last two years succeeded in achieving this target in over 88 per
cent of cases.[12] South
Yorkshire and Durham police authorities also includes reports
of an "injury" as a trigger for an "immediate response".
In addition, 15 further police authorities include "road
traffic incidents that result in an injury/serious injury"
as "incidents requiring immediate response." These police
forces respond to over 80 per cent of all of these reports within
20 minutes.[13]
17. The major injuries reported to the HSE are just as
likely to be the result of criminal conduct as the "injuries"—particularly
road traffic ones—which are defined by the police as "requiring
immediate response". Yet the HSE does not even respond to
88 per cent of those major injuries reported to it—and that
is before one considers the time it takes the HSE to respond to
those injuries it does investigate. It would be considered intolerable
if the police failed to investigate 88 per cent of serious injuries
on the road. The same level of criticism that would be attached
to the police in such a situation, should be focused on the HSE.
18. Question of Resources: The HSE argues that it does
not have the resources to investigate more major injuries without
seriously jeopardising its other work. It is certainly true that
with limited resources it must strike a balance between such reactive
work and preventative inspections. However the Executive does
not even acknowledge the critical importance of investigating
more major injuries; it consistently and explicitly fails to place
major injury investigations into a criminal justice context. Jenny
Bacon made this point explicitly in an interview when she stated:
"I think there's a straight conflict here between the demands
of . . . the criminal justice system in which people want their
accident investigated because they want . . . retribution; and
with what's needed under health and safety laws (which are what
we are responsible for) and which are mainly concerned with protection
as opposed to prosecution and punishment . . .. But we cannot
put the resources into following up accidents primarily to seek
retribution . . . when what we're supposed to be doing is preventing
accidents and protecting workers."[14]
As a result, the HSE does not seek further funding for this purpose
and remains complacent about the investigation rate.
19. Unreported Injuries: The investigation rate does
not take into account the actual number of workplace major injuries.
Surveys indicate that the number of reported injuries to the HSE
represents only 40 per cent of the total suffered so that the
real number of injuries between 1996-98 is over 100,000 and the
real rate of investigation about 5 per cent.
20. An unreported injury is just as likely to be the
result of corporate criminal conduct as one that is reported.
When an injury remains unreported, it does not even have a chance
of being investigated and total immunity is provided to the reckless
or negligent company. Therefore increasing the number of reported
injuries is just as crucial as ensuring a higher investigation
rate. At the moment, the HSE relies on employers reporting the
injury to the HSE. Employers—particularly those who know
they are to blame for the injury—have a vested interest
against reporting the injury. Other ways need to be devised to
ensure that the major injuries are reported. Examples could be:
— encouraging victims, their lawyers, advice bureaux
etc to report injuries;
— establishing systems of reporting with doctors,
hospitals and insurance companies.
Prosecution: Health and Safety Offences
21. The prosecution figures below are not entirely consistent
with the investigation data since they include a small number
of prosecutions resulting from investigations into injuries to
members of the public (excluded from the above data.) The actual
numbers and percentages will therefore be slightly lower:
— Only 10.4 per cent of injuries that were investigated
resulted in a prosecution.
— Prosecution rates significantly varied depending
on where the injury took place.
— The prosecution rate in Scotland (6.4 per cent)
was less than half the rate in the Home Counties (13.3 per cent).
— In addition, although we have at present no conclusive
statistical proof it appears that none of the prosecutions were
against a company director, manager or other senior officer under
S. 37.
MAJOR INJURIES IN 1996 TO 1998, WHICH HAVE RESULTED IN
A PROSECUTION
|
| 1996-98 | Major injuries reported
| Major injuries investigated
| Number resulting in prosecution
| Prosecutions as % of injuries investigated
|
|
| Home Counties | 6,690
| 747 (11.2%) | 99
| 13.3 |
| London and SE | 7,217
| 519 (7.2%) | 69
| 13.1 |
| North West | 6,239
| 653 (10.5%) | 80
| 12.3 |
| Wales & West | 7,902
| 1,035 (13.1%) | 124
| 12.0 |
| Midlands | 7,341
| 798 (10.9%) | 68
| 8.5 |
| Yorkshire | 7,371
| 987 (13.4%) | 78
| 7.9 |
| Scotland | 5,042
| 626 (12.4%) | 40
| 6.4 |
| Total | 47,802
| 5,365 | 558
| 10.4 |
|
22. Low Prosecution Rate: 10.4 per cent is a very low
prosecution rate. There has been no independent or HSE research
considering what level of major injuries is the result of failures
on the part of companies etc to comply with health and safety
law. The only available research relates to workplace deaths.
The HSE did a series of studies in the late 1980s which indicated
that about 70 per cent of workplace deaths were the result of
"management failure". In addition, a study in the West
Midlands area between 1988-1992 concluded that 75 per cent of
workplace deaths should have resulted in at least a health and
safety prosecution.[15]
There is no reason to believe that the cause of workplace major
injuries should be any different from this. Obviously, the fact
that a death or injury was the result of "management failure"—a
term used in the HSE report—does not necessarily imply that
there is sufficient evidence to prosecute the company. However,
HSE's reports clearly indicate a majority should result in prosecution.
In total, therefore, in our view, at least 40 per cent of all
major injuries should result in prosecution.
23. As a result therefore, we can conclude that the HSE
failed to prosecute (in relation to the injuries investigated)
at least 1,588 companies. It would of course be many more if the
HSE increased its investigation rate. Just as with its low investigation
rate, HSE's low prosecution rate seriously impacts upon issues
of moral justice, accountability and deterrence.
24. Breaching its own Enforcement policy: It appears
that the HSE is failing to prosecute companies in relation to
major injuries despite sufficient evidence. The HSE's own enforcement
policy states that prosecution will be considered when there is,
inter alia, "judged to have been potential for considerable
harm arising from breach".
25. The policy also states that the decision to prosecute
"must also take account of the criteria set down in the Code
of Crown Prosecutors, and in Scotland by the Procurator Fiscal."
The English/Welsh Code states that there are two stages in the
decision to prosecute. First, the "evidential test",
and if this is passed the "public interest test". In
relation to the public interest test, the Code states that "in
cases of any seriousness, a prosecution will usually take place
unless there are public interest factors tending against prosecution
which clearly outweigh those tending in favour".
26. The 10 per cent prosecution rate in relation to major
injury appears to be in breach of HSE's own policy and the Code
of Crown Prosecutors. The second limb of HSE's policy—"potential
for considerable harm arising from breach"—will have
definitely existed in that "considerable harm" has in
fact been caused, and so whenever sufficient evidence of a breach
has been discovered, prosecution should take place. And in relation
to the Code of Crown Prosecutors, it is difficult to see what
public interest arguments could be made out for not prosecuting
whenever the evidence test is satisfied—a test probably
satisfied in at least 40 per cent of the cases.
27. HSE's Cautioning Policy: If the HSE are only prosecuting
in 10 per cent of cases, what are inspectors doing when they decide
not to prosecute, even though evidence exists? It must be assumed
that they are either providing oral/written advice or imposing
an improvement or prohibition notice. Effectively, they are"cautioning"
the company (though police cautioning does require an admission
of guilt). Home Office guidelines on cautioning, indicate that
the "nature and extent of the harm or loss resulting from
the offence" should be taken into account before cautioning.Yet
the HSE—not officially covered by these guidelines—are
issuing "cautions" despite very serious injuries.
Prosecution: Grievous Bodily Harm Offences
28. The HSE does not consider the possible application
of GBH offences. This is crucial since they are the "gate-keeper"
preventing the police from investigating these incidents. The
Executive's position on GBH offences is totally different from
its stance on workplace deaths and manslaughter. Why is it that
the HSE and the police do not work together to consider the possible
commission of crimes under the Offences against the Person Act
1861? The HSE has said very little in public on this subject,
but it appears that the HSE does not think that the offences in
the Act apply to the standard workplace major injury situation.
HSE's position, however, does not stand legal scrutiny.[16]
29. Apparently, there appears to be two reasons why the
HSE does not think section 20 (for an example, though the same
basic argument applies to section 18) applies to a workplace injury,
but that manslaughter might to a death. The first, is the legal
requirement that it must be shown that a director or manager was
"aware of the risk" of injury—ie the requirement
for recklessness.
30. Whilst it is of course true that the required mental
state in section 20 is a stricter test than the one required for
manslaughter, it certainly does not preclude the possibility of
prosecution. In many cases directors are fully aware of the risks
inherent in their decisions; the problem is that the HSE simply
does not conduct investigations with a view to determining what
the awareness of directors or managers was or wasn't. In addition,
there is a general bias within the HSE against considering that
directors and managers might act "recklessly". They
may be ignorant or incompetent to a very high level, but, in the
HSE's view, they certainly do not act "knowingly".
31. HSE's second reason appears to be that except in
the most extraordinary situations (which would anyway, as a matter
of course, be investigated by the police ie injury through "foul
play") workplace major injuries are not the result of "wounding"
or "inflicting". This is because, even if an injury
is caused by a director or manager, it is not the result of a
"direct application of force". However, HSE's understanding
of the word "inflict" is not correct. There is no requirement
for a "direct" or indeed "indirect" application
of force. This has been made very clear by the case of Burstow[17]
where the House of Lords held that the word "inflict"
in section 20 was interchangeable with the word, "cause".
The judge held that it "is not a necessary ingredient of
the word `inflict' that whatever causes the harm must be applied
direct to the victim. It may be applied indirectly, so long as
the result is that the harm is caused by what had been done."
DEATHS
Prosecution: Health and Safety Offences
32. Every workplace death is subjected to an HSE investigation;
the issue of major concern is HSE's prosecution policies:
— 18.8 per cent[18]
of deaths in 1996-98 resulted in a prosecution for health and
safety offences. All of the prosecutions that did take place were
against companies: none were against directors or managers.
— There was a big differential between one region
and another. 23 per cent of deaths in the Midlands resulted in
a prosecution compared to 13 per cent in Scotland.
— 72 per cent of these prosecutions took place in
the magistrates court (where the maximum fine available is £20,000).
In the North West all nine of its prosecutions took place in the
magistrates court.
— The average fine per death was £18,032. It
ranged from an average of £36,237 in Wales and the West to
£5,196 in the Midlands.
Table of deaths to workers (employees, self-employed, work-experience,
trainees) taking place between April 1996 to April 1998 which
resulted in a prosecution
|
| | Nos of
| | | |
| |
| Nos
| prosecs | % of deaths
| No of prosecs |
No of cases | % of cases
| Average |
| of
| following | resulting in
| resulting in | in Mag
| in Mag | fine per
|
| deaths
| deaths | a prosec
| convictions | courts
| courts | conviction
|
|
| Midlands | 62
| 14 | 22.6
| 12 | 12
| 85.7 | £5,196
|
| Home Counties | 72
| 15 | 20.8
| 14 | 9
| 60.0 | £26,179
|
| London | 72 |
15 | 20.8
| 14 | 12
| 80.0 | £10,250
|
| Wales/West | 102
| 20 | 19.6
| 19 | 14
| 70.0 | £36,237
|
| Yorks | 72 |
13 | 18.1
| 13 | 8
| 61.5 | £11,792
|
| NW | 52 |
9 | 17.3
| 9 | 9
| 100.0 | £9,000
|
| Scotland | 78
| 10 | 12.8
| 10 | 8
| — | £14,575
|
| Total | 510 |
96 | 18.8
| 91 | 72
| 75.0 | £18,032
|
|
33. Immunity: The prosecution of companies for only 19
per cent of deaths is an extraordinary low figure considering
all the evidence that indicates that the majority of deaths result
from management failure. In addition there can be no justification
for the HSE's failure to prosecute under section 37, any director
or manager in relation to these deaths. In the late 1980s (as
noted above) the HSE published a series of reports indicating
that 70 per cent of deaths resulted from "management failure".
In addition, an independent investigation into 24 workplace deaths
in the West Midlands between 1988-1992 indicated that 75 per cent
of deaths should result in at least a health and safety prosecution.[19]
34. Breach of HSE's Policy: As discussed in relation
to major injuries, the failure to prosecute—when evidence
is available—is clearly in breach of HSE's own prosecution
policy and the Code of Crown Prosecutors. It also breaches HSE's
"principles of enforcement" that requires "consistency".
35. Low Lines: An average fine of £18,032 per death
is very low. Apart from the Home Counties and in Wales and West,
the average fine in every HSE region is below £15,000. The
low level is directly linked to the high percentage of cases sentenced
in the magistrates courts (see blow). The profits of those companies
sentenced is not known; but the fines are likely to be low both
in absolute and relative to their profits.[20]
One of the reasons for the low fines imposed upon companies—even
when a death has taken place—is directly related to HSE's
failure to ensure that more cases are heard in the Crown court
which have the power to impose unlimited fines. Compare for example,
the average fine in the North West (£9,000) where all the
cases were heard in the Magistrates Court to the fines imposed
in the Home Counties (£26,000) where 40 per cent took place
in the Crown Court.
36. The recent guideance given in the case of R v
Howe will mean that successful cases taken in the higher courts
are likely to result in higher fines. Yet this ruling will have
absolutely no impact unless sentencing for death/injury cases
takes place in the Crown Court. The decisions about referral are
made by the Magistrates themselves—but HSE inspectors, prosecuting
the case, can make submissions that either trial (if pleading
not guilty) or sentencing (if guilty plea) can take place in the
Crown Court. The HSE has consistently told this committee that
they have little control over the question of which court cases
are heard—this is not the case. In our opinion (though no
research has actually ever been done into this question) the low
Crown Court prosecution/sentencing rate is directly the result
of HSE inspectors failing to argue their case persuasively to
the magistrates courts. It is not clear whether this is due to
lack of HSE policy or legal inexperience or incompetence of HSE
inspectors who are not trained in court procedure and who have
little experience of "mode of trial hearings".
37. HSE inspectors should not prosecute these cases;
it should be the job of professional lawyers. In particular lawyers
should do the "mode of trial hearings". The HSE should
institute a policy stating that HSE inspectors (or, lawyers acting
on their behalf) should try to persuade magistrates that all deaths
cases should be heard and sentenced in the Crown Court.
Prosecution: Manslaughter
38. In the last 10 years—after over 3,000 workplace
deaths—only two deaths have resulted in a conviction of
a company or senior company officer for manslaughter. This conviction
level must be compared to two independent studies which researched
the level of corporate culpability for workplace deaths.
— In 1994, the West Midlands Health and Safety Advice
Centre reinvestigated 24 deaths that took place in the region
between 1988 and 1992. On the basis of the evidence, Anthony Scrivener
QC stated that four of the deaths should have resulted in a manslaughter
prosecution against a director. If this was reflected nation-wide,
last years deaths alone should have resulted in 45 corporate manslaughter
prosecutions.
— This research is supported by new research, to
be published at the end of the year by Gary Slapper, Open University
Professor of Law. He found that 20 per cent of the 28 deaths he
looked at in detail should have been referred to the Crown Prosecution
Service for consideration of corporate manslaughter.
39. HSE's Referal Mechanism: In 1993, the HSE instituted
a policy where inspectors were supposed to refer deaths to the
Crown Prosecution Service where they believed there was a prima
facie manslaughter case. This has resulted in the referral so
far of 84 workplace deaths—though only 24 of these referrals
related to potential evidence against a senior company officer
(that could, in legal terms, be said to represent the company.)
This is 1.2 per cent of the total.
HSE Manslaughter Referrals
|
| Year | Nos of Deaths
| Total nos of referals
| Total nos of referals relating to companies
|
|
| 1992-93 | 339
| 7 | 3
|
| 1993-94 | 296
| 5 | 2
|
| 1994-95 | 272
| 12 | 3
|
| 1995-96 | 258
| 8 | 4
|
| 1996-97 | 287
| 12 | 6
|
| 1997-98 | 274
| 19 | 5
|
| 1998-99 | 257
| 21 | 1
|
| Total | 1,983
| 84 | 24
|
|
40. The HSE argues that the low referral rate indicates
a low level of corporate culpability on the part of senior company
officers. However, in our opinion it is more likely to do with
a failure of the part of the HSE to investigate the conduct of
senior company officers. Our opinion is supported by the West
Midlands report which indicated a series of highly inadequate
investigations into workplace deaths. The HSE also argues that
its conclusions about the level of corporate culpability is justified
by the very few prosecutions carried out by the Crown Prosecution
Service. Again, in our opinion, the lack of prosecutions does
not support low rates of culpability. First, the CPS relies on
cases referred to it by the HSE—which are not necessarily
the strongest cases. Secondly, the CPS often fails to ensure that
further investigation is carried out into these deaths. Thirdly,
the CPS appears to take a very conservative view on managerial
culpability as indicated by the recent High Court decision to
give leave to the family of Simon Jones over the CPS decision
not to prosecute for manslaughter.
41. The New Protocol: In April 1998, the HSE instituted
a new policy. This new protocol gives the police a formal investigative
role; from now on every workplace death is supposed to be attended
by a policy detective of supervisory rank who will make an initial
assessment about whether "the circumstances might justify
a charge of manslaughter." No statistics are available to
assess this policy. However in our opinion, the police need to
carry out a parallel enquiry to the HSE, not just make an "initial
assessment" as the protocol requires. How can a police officer
make a proper assessment of whether a company director has acted
with gross negligence without actually conducting an investigation?
As Detective Chief Superintendent Bill Hacking, an ACPO representative
states, "[i]t is only after a major investigation by the
police, and possibly other agencies that an apparent act of negligence
or recklessness is identified. Past experience has also shown
that in the early stages of an investigation the full facts are
not always revealed". If this is the case why then does the
protocol not require more than an "initial assessment"?
HSE AND THE
ROBENS PHILOSOPHY[21]
42. The HSE itself states that its "view of enforcement
derives from the philosophy set out in Lord Roben's report "Safety
and Health at Work". However the Roben's report's conclusion
on the "role of the criminal law" is flawed on two basic
points:
— its empirical foundations are inaccurate;
— it failed to distinguish between incidents that
resulted in serious harm from those which increased the risk of
harm, but where harm had not yet resulted.
43. "Criminal Law not Applicable": Robens main
argument against the use of the criminal law was that the manner
in which "accidents" take place does not allow for the
application of the "traditional concepts of the criminal
law". The report stated: "Our deliberations over the
coarse of two years have left us in no doubt that the most important
single reason for accidents at work is apathy. . . . The fact
is—and we believe this to be widely recognised—that
the traditional concepts of the criminal law are not readily applicable
to the majority of infringements. . . . Relatively few offences
are clear cut, few arise from reckless indifference to the possibility
of causing injury, few can be laid without qualification at the
door of particular individuals. The typical infringement or combination
of infringement arises rather through carelessness, oversight
or lack of knowledge or means, inadequate supervision or sheer
inefficiency."[22]
44. The legitimacy of this conclusion can only be determined
by empirical analysis: The Robens committee used very few studies
to justify its conclusion on the causes of "accidents".
It stated that: "Some four-fifths of all accidents reported
in recent years under the Factory Acts are said to arise from
such apparantly simple causes as handling materials, falling
objects and the mis-use of hand tools. These are sometimes
referred to as common accidents. We are told that few of these
accidents—perhaps one in six—involve a breach of a
specific regulation. In a survey of construction sites in 1966,
a team of factory inspectors kept 140 sites under surveillance
for six months. Of the 270 reportable accidents that happened
during the survey, only 50 (19 per cent) could be regarded as
due to clear breaches of regulation." (italics added)
45. It is difficult to see why these studies support
these conclusions. The finding that only one sixth of the
accidents resulted from a "breach of a regulation" could
simply be a reflection of the narrow definitions of the Factory
Act Regulations. Given this narrowness, a company or its senior
officers could well have been grossly negligent or reckless, without
actually being in breach of a regulation. The Robens report also
seems to imply that because only 15 per cent of "accidents"
(ie one in six) resulted from a breach of regulation, the criminal
law should have a limited role. But if 15 per cent of deaths or
injuries on the road were considered to be a breach of road law,
this would not stop the need to prosecute drivers.
46. Furthermore, the fact that most of the "accidents"
were caused by "handling materials, falling objects and the
mis-use of hand tools", should not imply that a director
(or at least a company) lacked criminal responsibility. If a director
does not provide appropriate protective clothing, a worker will
suffer injury through "handling materials" or if the
company has failed to provide proper training and supervision,
a worker could die through the "misuse of hand tools".
If the director were aware of the risks or should have been aware
of the risks, serious criminal charges could be laid.
47. The committee's conclusion also did not take into
sufficient consideration other evidence available to it at the
time. Without comment, the Robens report discounted and rejected
evidence pointing to a different conclusion. For example W H Thomson,
a senior solicitor at the time, stated that: "I am consulted
every year by about 10,000 persons injured at work and by the
relatives of persons killed. . . . And time and time again, I
find that the employers were plainly negligent and that the accident
could and should have been prevented but they failed to take reasonable
care. . . . I am not suggesting that employers should be prosecuted
for minor errors of judgement any more than motorists are today.
. . . The cases I am concerned about are the cases where the employers
have plainly been guilty of gross persistent inexcusable negligence.
There are in my experience a large number of cases."
48. The Robens Committee never cited this evidence, referring
only to the study mentioned above involving 270 "reportable",
accidents many of which might have been very minor. The Robens
Committee also totally ignored a study which the committee itself
commissioned from the National Institute of Industrial Psychology.
This stated that: "nearly all accidents are the inevitable
result of unsafe working systems which could themselves be made
safe by employers, by a combination of hazard analysis, planning,
training and supervision".[23]
49. In 1972, therefore, the evidence available did not
support the Roben's thesis. And nothing has changed since. Studies
as noted above now suggest that a majority of workplace deaths
and injuries are due to corporate negligence, with a significant
minority being the result of gross negligence or recklessness
on the part of a senior manager or director.
50. Criminal law "an irrelevancy"?: A second
line of argument used in the Robens report stated that the criminal
law was, in any case, not helpful in ensuring that companies were
prevented from breaching health and safety law. It argued that
when a legal breach had been discovered, "the process of
prosecution and punishment by the criminal courts is largely an
irrelevancy. The real need is for a constructive means of ensuring
that practical improvements are made and preventative measures
adopted. Whatever the value of the threat of prosecution, that
actual process of prosecution makes little direct contribution
towards the end. On the contrary, the laborious work of preparing
prosecutions . . . consumes much valuable time which inspectorates
are naturally reluctant to devote to such little purpose."[24]
51. When an inspector investigates a "near miss"
or discovers dangerous conditions, Robens is correct to say the
most important task is to ensure that the situation does not recur.
When poor standards are discovered, the priority must be to ensure
that conditions are improved so that injury or death do not take
place. Prosecution may seem inappropriate when the company is
willing to make the necessary changes; it would serve little purpose,
particularly if the risk of danger was not great and the company
was, in the main, safe.
52. In addition, the absence of "harm" removes
one of the key ingredients in assessing whether particular conduct
is judged to be "real" crime and worthy of a response
from the criminal justice system. Though, the absence of harm
does not preclude a response from the criminal justice system,
the occurrence of harm is usually the key trigger, and without
it no action is usually taken. However, the Roben's strategy is
not appropriate when death or injury has occurred. Though the
incident could certainly be entirely unforeseen and accidental,
it might well be the result of an offence of manslaughter, assault
or causing GBH. Whilst, obviously, the authorities must deploy
measures to ensure there is no recurrence, issues of justice and
accountability should now come to the fore. It is appropriate
that the death or major injury should be treated like any other
incident that might be the result of violent crime. This requires
rigorous investigation of both the company and its senior officers,
followed by a decision to prosecute if there is sufficient evidence.
Without this response, it is not possible to filter those companies
and directors who have committed serious crimes. Simply put, Roben's
arguments that the criminal law is not a useful technique in the
prevention of death and injury does not apply when injury or death
has actually occurred.
September 1999
2
The Management Committee is composed of Louise Christian
(solicitor); Alan Dalton (Environment Agency Commissioner); Professor
Steve Tombs (John Moores University); Charles Woolfson (University
of Glasgow); Deborah Coles (Co-Director, INQUEST); Conor Foley
(Amnesty International).
The Advisory Council is composed of Upendra Baxi (Professor, University
of Warwick); Barrie Berkley (Disaster Action); Chris Clarkson
(Professor, University of Leicester); Martyn Day (Partner, Leigh
Day Solicitors); Barbara Dinham (Co-Director, Pesticide Trust);
Ann Elvin (Relatives Support Group); Colin Ettinger (Irwin Mitchell
Solicitors); John Hendy QC (Barrister); Mick Holder (London Hazard
Centre); Sadiq Khan (Partner, Christian Fisher); Michael Mansfield
QC (Barrister); Richard Meeran (Partner Leigh Day) Fiona Murie
(Officer, Spanish Trade Union (Departamento Confederal de Salud
Laboral)); Michael Napier (Partner, Irwin Mitchell Solicitors);
Rory O'Neil, (Editor, Workers Health International Newsletter);
Professor Phil Scraton, Centre for Studies in Crime and Social
Justice; Professor Grary Slapper, Director of Law (Open University);
Stephanie Trotter (Co-Gas Safety, Executive Director); Owen Tudor
(Health and Safety Officer, Trades Union Congress); Celia Wells
(Professor of Law, Cardiff University); Marlene Winfield (National
Consumer Council). Back
3
See HSE annual report. Back
4
Section 18 of the Offences against the Person Act (OAPA)
1861: "Whosoever shall unlawfully and maliciously by any
means whatsoever wound or cause any grievous bodily harm to any
person with intent to do some grievous bodily harm to any person
. . . shall be liable . . . [to a maximum penalty of life imprisonment]. Back
5
Section 20 of the OAPA 1861, "Whosoever shall unlawfully
and maliciously wound or inflict any grievous bodily harm upon
any other person, either with or without any weapon or instrument,
shall be guilty of [an offence] . . . and shall be liable . .
. [to a maximum penalty of five years' imprisonment"]. Back
6
Section 23 + 24 of the OAPA 1861, "Whosoever shall
unlawfully and maliciously administer to, or cause to be administered
to or taken by any other person any poison, or other destructive
or noxious thing so as thereby to endanger the life or such a
person, or so as thereby to inflict upon such person any grievous
bodily harm, shall be guilty of an offence, and being convicted
thereof shall be liable to imprisonment for any term not exceeding
10 years. Back
7
See Mowatt 3 ALL ER 47 and Savage and Parmenter
[1991] 4 All ER 698. See Smith and Hogan (1998) Criminal Law
p 441-2 for summary. Back
8
See CPS Charing Standard. Back
9
The figures below relate to injuries to workers. This includes
employees, self-employed, work experience and trainees. It excludes
injuries to members of the public. Back
10
See HSE's Enforcement Policy Statement. Back
11
National Audit Office, "Enforcing Health and Safety
Legislation In the Workplace" HMSO (1994). Back
12
See Report of the Commissioner of Police of the Metropolis
(1997-98), p 109-110. Back
13
See Audit Commission, 97-98 Performance Indicators, Police
and fire services p 38-40 and p 9-10. Back
14
Interview with Jenny Bacon, Health and Safety Bulletin,
Jan 1998. Back
15
See footnote 18. Back
16
See, New Law Journal, "Corporate GBH" October
1999 (forthcoming). Back
17
1998 1 Cr App R 177. Back
18
These figures are based upon comparing HSE's Event Investigation
numbers to prosecutions. In a very few cases, the EIN will relate
to more than one death - which are not taken into account in our
figures. The actual figures therefore may be a little higher.-
but not by much at all. Back
19
See "The Perfect Crime? How Companies Can Get Away
With Manslaughter", West Midland Health and Safety Advice
Centre (1994) Back
20
See The Perfect Crime? p 96 on the level of fines compared
to the wealth of the companies. Back
21
See Bergman, D "A Game of Chance?", Health and
Safety at Work Magazine, November 1999. Back
22
Dept of Employment, Safety and Health at Work, Report of
the Committee 1970-72, p 82, para 261. Back
23
Quoted in AD Woolf, "Robens Report-the Wrong Approach"(1973)
Industrial Law Journal, 2, 88 at p 90. Back
24
Dept of Employment ibid, para 261, p 82. Back
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