133. Memorandum submitted by the Restorative
Justice Consortium
1. We welcome the Government's initiative
in addressing this problem. We accept the principle that there
should be such an offence, on the lines set out in the Bill. Our
comments will be only about the sanctions, and the important related
question of prevention.
2. We base our comments on the principle
that the first concern of the legislation should be to give any
possible assistance to the relatives of those who died, and to
survivors who were injured. After that, the emphasis should be
on preventing similar disasters in future.
COMPENSATION
3. We are therefore surprised that there
appears to be no mention of compensation, or of payment for any
therapeutic care that may be needed by relatives and survivors.
The first part of Clause 6(1)(b) would cover such measures, but
it is limited by the second part to matters, which appear to have
been a cause of the death. We recommend that there should be an
explicit duty of care towards relatives and survivors, and that
Clause 6(1) should mention such requirements. We are of course
aware that relatives and survivors can bring actions in the civil
courts, but we do not see why they should be put through the additional
stress of doing so.
4. We welcome the principle behind Clause
6, that the court should order steps to be taken to remedy the
failings which led to the loss of life. This is often what victims
want, rather than compensation. For this reason, emphasis should
be placed, in deciding the amount of compensation, on material
loss and the cost of any treatment required by relatives and survivors,
rather than on exemplary or punitive damages.
DIALOGUE
5. No mention is made, however, of involving
relatives and survivors in this process. The Government has clearly
stated that it "aims to maximise the use of restorative justice
in the Criminal Justice System (CJS), where we know it works well,
to meet victims' needs and to reduce re-offending . . . Restorative
justice brings victims and offenders into contact, where victims
want this, either face to face or indirectly" (Criminal Justice
System 2003, p 1). Corporate manslaughter is a prime example of
the type of case where this would be highly appropriate.
6. Relatives and survivors should be offered
the opportunity to meet senior managers as defined in Clause 2
of the Bill (or communicate with them indirectly if they did not
wish to meet), so that they could ask questions, express their
feelings and discuss the form, which any reparation or compensation
should take. There should be a procedure for arranging this as
soon as the relatives and survivors were ready for it. In keeping
with the principles of restorative justice, it should be conditional
upon (a) acceptance by those responsible of some responsibility
for what occurred, and (b) their willingness to take part. This
could take place before a trial, or after conviction and before
sentence, or after sentence.
7. Acceptance of responsibility does not
necessarily entail an admission of legal guilt. The effect of
this is (1) that the accused are more likely to accept a degree
of responsibility, which is what relatives and survivors want,
and less likely to contest or minimize it; and (2) that if a trial
nevertheless takes place, they will, having accepted facts that
are not in dispute, still be able to conduct their defence on
other grounds.
8. If the agreement was fulfilled to the
satisfaction of all concerned, this could be taken into account
by the Crown Prosecution Service as a reason why it was no longer
in the public interest to proceed with prosecution, as provided
by paragraph 6.5(h) of the Code for Crown Prosecutors (2000),
which states: "A prosecution is less likely to be needed
if: . . . (h) the defendant has put right the loss or harm that
was caused (but defendants must not avoid prosecution solely because
they pay compensation)." If it took place before sentence,
any agreement reached about compensation or other remedial action
would be taken into account in deciding the sanction to be imposed.
FINES
9. Clause 1(4) states that an organization
guilty of corporate manslaughter is liable to a fine. We recommend
that there should also be a re-statement of the principle established
in the Criminal Justice Act 1982 that compensation should take
priority over fines, and that this should be amplified to include
reparation, as mentioned above, and remedial action, as provided
under Clause 6 of the Bill. We are concerned that the imposition
of a large fine might limit the organization's ability to pay
compensation or make reparation.
10. This consideration is also relevant
to Clause 6(4), which provides that an organization, which fails
to carry out remedial action, should be fined. This too would
do nothing to remedy the failings that led to the loss of life,
we suggest that senior managers who have failed to take remedial
action, or have not complied with their undertakings to make reparation
or pay compensation, should (a) be required to make personal contributions
from their salaries and assets, or (b) be disqualified from holding
their positions, so that they could be replaced by others who
would fulfil these obligations.
ENSURING COMPLIANCE
11. The Bill should also lay an obligation
on the government to provide an adequately resourced system of
inspection to ensure that remedial action was carried out. Where
unsafe practices were discovered and there was reason to suppose
that they were not confined to the organization in question, the
government should be required to introduce measures, accompanied
by adequate inspection, aimed at preventing them.
RESTORATIVE JUSTICE
IN PRACTICE
12. To conclude, we will cite some examples
showing how these proposals could work. Braithwaite (2003) reports
that in the United States, a 25% increase in inspections by the
Mine Safety and Health Administration was associated with a 7
to 20% reduction in fatalities, but no association was found between
safety improvement and the level of penalties (p 63). These fatalities
would probably have been classified as corporate manslaughter.
He found "strong empirical evidence that persuasion works
better when workers and unions (representing the victims of the
crime) are involved in deliberative regulatory processes"
(p 63). In the British coal industry, before World War I often
a thousand miners lost their lives in a year in the pits, and
the average number of prosecutions was 1,309; in 1982-83, fatalities
had decreased to 44, and in 1980 and 1981 there were no prosecutions.
Braithwaite notes, however, that there are limits to responsive
regulation: rapacious big firms and incompetent little ones will
not or cannot respond responsibly (p 65). Another example was
the discharge of mercury-containing waste into Minamata bay, in
Japan. People who had eaten the contaminated fish suffered paralysis,
nervous disorders and even death. The Chisso Corporation agreed
to pay each victim an average of £20,000 compensation and
to dredge the bay, but this left it with a large deficit. Rather
than allow the company to become bankrupt, the government issued
bonds so that it could continue to trade and thus meet these liabilities
(Wright 1982, p 264).
CONCLUSION
13. In summary, we accept the need to create
the new offence of Corporate Manslaughter, and propose a response
to it that would put the well-being of relatives and survivors
first, enable them to conduct a dialogue with those responsible,
and make senior managers more likely to admit some degree of responsibility,
agree to take part in such a dialogue, and fulfil their reparative
obligations. It would provide a way by which those responsible
could make amends in a constructive way, both by meeting the needs
of relatives and survivors and by taking steps to prevent a recurrence.
There is evidence that such measures are more likely to be carried
out when decided by agreement, but we also propose a constructive
system for inspection and enforcement. We emphasise that adequate
inspection, conducted on restorative lines, makes fatal disasters
less likely to occur in the first place.
REFERENCES
Braithwaite, John (2002) Restorative justice
and responsive regulation. New York: Oxford University Press.
Criminal Justice System (2003) Restorative
justice: the government's strategy. London: Home Office Communications
Directorate.
Wright, Martin (1982) Making good: prisons,
punishment and beyond. London: Burnett Books; www.restorativejustice.org
ABOUT THE
RESTORATIVE JUSTICE
CONSORTIUM
The Restorative Justice Consortium was formed
in 1997. It brings together a wide range of people with an interest
in restorative justice. These include organizations, policy makers,
practitioners, academics etc from many different contexts and
from across the world. In June 2003, the Consortium was granted
charitable status.
The objects for which the Consortium is established
are:
"To promote restorative justice for the
public benefit as a means of resolving conflict and promoting
reconciliation by:
— Promoting the use of restorative
justice in the criminal justice system, in schools, in the workplace
and elsewhere in the community in situations where conflict may
arise.
— Developing and promoting agreed standards
and principles for evaluating and guiding restorative practice.
— Advancing education and research
on restorative justice and the publication of the useful results
of that research".
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