Examination of Witnesses (Questions 240
- 253)
MR DAVID
BERGMAN AND
DR GARY
SLAPPER
TUESDAY 2 NOVEMBER 1999
240. How do you believe that this variation
could be addressed?
(Mr Bergman) I think one problem is that the Health
and Safety Executive itself—I know you will find this hard
to believe—does not even know about these variations. This
particular analysis on a regional basis and on an industry basis
the Health and Safety Executive has never done before. That is
my understanding from having talked to people there. So until
there is first of all a recognition that there is a real problem,
that there are these enormous disparities between one industry
and another industry, say for example for an agricultural worker
it is five times more likely their injury is investigated compared
to a miner, until the HSE recognises that they cannot actually
deal with it.
Mrs Ellman
241. You compare the HSE's response record with
that of police responses to serious injuries, why do you make
that comparison?
(Dr Slapper) Paragraph 11 of our evidence here picks
up the point that only 40 per cent of amputations were investigated
between 1996-98. It is an alarming figure. Sixty per cent of amputations
are not investigated. We are not in a position then to really
judge what the cause was or what level of blame there was or where
it lay. Potentially, of course, that is comparable to what the
rest of English law recognises as a serious crime. If you expose
a fellow citizen to risk of injury in a way which the law regards
as reckless then you can end up, as hundreds of people are, in
jail for that. If you do the same thing in the course of employment
or commercial activity, in other words if you expose someone to
the same level of risk, because of the context in which you are
doing it it becomes more excusable in a sense that society at
the moment has not put the resources into examining what the causes
of amputations are in six out of ten cases. What shows all the
superficial evidence of being a serious crime is not taken any
further. It is the same with manslaughter. Since 1965 25,000 people
have been killed at work or in commercially related circumstances
and of those 25,000 only five cases, that is zero five, have been
followed by manslaughter prosecutions, of which only two were
successful. It is an infinitesimal follow-through by the apparatus
which is charged with labelling a crime as a crime, if I can put
it that way. That seems to be central to this general concern.
It is not the blood thirsty pursuit of people for its own sake.
I noticed that the representative who gave evidence earlier, Mr
Tudor, following an observation by—
Mrs Dunwoody
242. Who is one of your members I see.
(Dr Slapper) Following an observation about corporate
manslaughter from Mrs Dunwoody said that he would want that to
be a crime but he said "I would not want lots of employers
to go to jail for that". I think that is a highly prejudicial
remark.[3]
I do not want lots of employers to go to jail. I do not want anyone
to go to jail. The fewer people that society has in jail the more
healthy that society is. I am not in favour of sending people
to jail as a general principle. I want to highlight the inconsistency
that there seems to be between labelling one type of human behaviour
which exposes human beings to grossly negligent risk of death,
which it categories as a crime and puts thousands of people in
prison for, and the same level of exposure to risk about which
it does nothing, as is testified by the fact that only two prosecutions
have followed from 25,000 cases potentially of corporate manslaughter.
(Mr Bergman) Can I follow specifically
on one of the points. A major injury on the road, that could just
be an accident, a total accident, in the same way as a major injury
at work could be.
243. I did not think you accepted the concept
of an accident.
(Mr Bergman) I am using inverted commas.
244. Quotes "accident".
(Mr Bergman) Until they are investigated you do not
know what they are. The police obviously acknowledge that and
recognise that because they have a system to investigate every
major injury on the road. They will only prosecute those where
there is sufficient evidence to indicate due lack of care but
they will prosecute those when they have evidence. It is a very
clear comparison.
Mrs Ellman
245. Where does your figure come from, this
very low level of investigation of very serious matters?
(Mr Bergman) The statistics which are aggregated in
our report to you are initially from raw data that we obtained
from the Health and Safety Executive. So in terms of the Health
and Safety Executive data, that is from the Health and Safety
Executive. In terms of the police, that is through looking through
the Audit Commission. For example, we found out that 15 police
forces have a policy of attending the scene of every major injury
on the road within 20 minutes. Now, as we know, the Health and
Safety Executive does not investigate most of those. It is a very
interesting comparison.
Mr Olner
246. There are more policemen than there are
inspectors.
(Mr Bergman) Absolutely, it is resources. It is a
resources issue but it is also a mind set issue.
247. We are going to have an industrial workers'
police force, are we?
(Mr Bergman) We are arguing for proper resourcing
of the Health and Safety Executive.
248. Just a quick one because the witnesses
have been in throughout all of this evidence session. The picture
you paint of UK industry and its lack of safety is slightly different
from the evidence we received from John Monks, the General Secretary
of the TUC. Do you not agree with his evidence?
(Mr Bergman) I think what is important is that the
statistical evidence that we have is mutual evidence[4].
Ask the Health and Safety Executive to corroborate, they will
not find anything wrong with this evidence. If you think that
the way we are portraying it is as you suggest then that is because
the statistics portray it as so. The fact that there are so few
investigations and prosecutions is a reality unfortunately.
Chairman
249. The point made earlier was that the health
and safety record in this country is better than in most countries
within the Common Market.
(Mr Bergman) There are two points about that. The
fact that we are better than even the worst records in other countries
is something that we cannot be complacent about. That is one point.
Secondly, we are talking about injuries and deaths that do occur
and the lack of accountability that takes place in relation to
those, not other injuries that could take place. We are talking
about the reality of injuries and deaths that do actually take
place in this country.
250. But if there were more prosecutions have
you really any evidence that those numbers of accidents and injuries
would drop dramatically in the future?
(Mr Bergman) I think it stands to reason that if I
was a company director or a company and I knew that I could get
away with nine out of ten major injuries that took place in my
company in the sense that they would not be investigated and,
therefore, I would never face the possibility of prosecution,
I would be complacent. There is no deterrence in the system, there
are no sanctions. I think that the key statistic here is that
within 1996-98 there were 47,000 major injuries, 500 deaths, not
one director or senior manager prosecuted. Forget manslaughter,
forget grievous bodily harm offences, just for health and safety
offences. When you know that in any situation you are not going
to have any sanction against you then where is the deterrent?
In the rest of the criminal justice system it is an ordinary principle,
you need sanctions to deter criminality. Companies are the more
deterrable forms of offenders because they are driven by a profit
motive.
251. You have made very strong criticisms, you
are suggesting that more resources are needed. Is that enough
or is it really that the Robens tripartite system of health and
safety in this country is not working?
(Mr Bergman) Clearly resources are inadequate. I am
sure when the Health and Safety Executive comes to see you in
a few weeks' time they will say "well, we have to undertake
preventative inspections", and they do have to undertake
those. They will say "if we do that, we cannot therefore
do investigations". If you want to increase investigations,
if you see that as an important function of the Health and Safety
Executive they need more resources. Clearly they also need to
have a whole different mind set and attitude. They have got to
recognise that in certain situations after a death or injury criminal
justice and accountability are important, that the victims of
those incidents demand it and society also requires it. In terms
specifically of Robens, I do not think we have got many comments
particularly about the tripartite arrangements, that is really
not our expertise. What is clear is that the conclusions of Robens
were based upon empirical evidence that was rather flawed even
at the time and has now been overtaken by evidence that indicates
it just has no bearing. Its main conclusion was that criminal
law was an irrelevancy and we would argue that just does not bear
up to any of the information that is currently available today.
The other key failing of the Robens Report was that its critique
of the criminal law—which was that it is time-consuming
and what is far more important is to ensure that HSE inspectors
spend their time on preventative inspection, on making sure that
death and injury does not take place—is absolutely right
in relation to general breaches of health and safety law, in those
situations the criminal law is not relevant. What it failed to
do was distinguish those situations from a situation where death
or injury had taken place.
Mrs Dunwoody
252. Do you see this new function as the lawyer
being avenger, is that what you are suggesting?
(Mr Bergman) Just very quickly before my colleague—
Mr Olner
253. Jumps to your defence.
(Mr Bergman) Lawyers run the criminal justice system.
We are not arguing that lawyers should have any extra roles that
they do not have now. First of all, what we are basically arguing
for is enforcement of the criminal law. We are not asking for
vengeance. We are just arguing that companies ought not to be
immune from the criminal law in the way that they are. Why should
this one form of defendant be immune from investigation and prosecution?
All we are arguing is that the law should be enforced.
(Dr Slapper) If I can reply on this point about the
need to have it recognised as a crime even though the record of
the United Kingdom in Europe or the wider setting of the world
is a very good one comparatively. Of course, that is no comfort
to the hundreds, or I should say more accurately thousands, of
relatives and bereaved people who are left in a terrible state
as a result of something which is largely inexplicable. We sit
here at a time after recent incidents where this has been graphically
brought home to the British public, the complacency about safety
on a wider setting and we have had some atrocious results. I spend
a lot of time helping and advising bereaved people and trade union
organisations in this and would never accept or ask for any money
in return for it. As far as I am aware that same principle applies
to everyone who is attached to this organisation. If I can take
the opportunity to refute the suggestion that was made in broad
terms earlier, I do not think there is any untoward motive by
anyone attached to the organisation or in its wider setting by
people who support the organisation. There is clearly a need for
people with particular expertise in relation to something like
the criminal justice system to carry the thing forward.
Chairman: On that note, can I thank you very
much. Any comment that we have made is to get to the truth. Can
I finally say to both yourselves and to the Pesticides Trust that
it has been refreshing perhaps that whereas in the past we have
often had a rather cosy relationship between witnesses and the
Health and Safety Executive, you have at least given us something
substantial to think about. Thank you very much.
3 Note by witness: If you agree to a new corporate
manslaughter law, as Mr Tudor did, you cannot then prejudge how
many people will be sent to jail under that law. The number jailed
will depend upon the number of offences. Back
4
Witness Correction: Uncontestable evidence. Back
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