154. Memorandum submitted by the Specialist
Engineering Contractors' Group
INTRODUCTION
1. The Specialist Engineering Contractors'
(SEC) Group is an umbrella representative body in the construction
industry. Its membership consists of the industry's six premier
trade associations. They are:
Association of Plumbing and Heating Contractors
British Constructional Steelwork Association
Electrical Contractors' Association
Heating and Ventilating Contractors' Association
Lift and Escalator Industry Association
SELECT (representing electrical installation
contractors in Scotland).
These organisations represent a sector comprising
over 60,000 companies and a workforce of more than 300,000. They
represent a wide range of engineering expertise including telecommunications,
power and lighting, heating and ventilation, air conditioning,
refrigeration, acoustics, ductwork, plumbing, automation and control
systems, security systems, data transmission, lifts and escalators,
constructional steelwork and facilities management.
2. In our response to the consultation document
we concentrate on the provisions in the draft Corporate Manslaughter
Bill whilst, at the same time, addressing specific issues raised
in the document on which comment is invited.
3. We fully agree that there is a need for
a new offence of corporate manslaughter to deal with an unfair
lacuna in our law. It seems wholly unjust that under our current
law a small business can be successfully prosecuted for the crime
of corporate manslaughter in circumstances where a successful
prosecution would be unlikely against a larger company. The only
difference between the two situations is the difficulty—in
the case of the larger company—of establishing whether the
killing was the result of gross negligence of the "directing
mind" of the company. In other words the offence of corporate
manslaughter as envisaged in the draft Bill will create a level
playing field of potential liability irrespective of the size
and complexity of management structures within organisations.
CLAUSE 1
4. We are content with the scope of the
offence as set out in sub-clause 1.
5. The reason for the inclusion of the words
"by its senior managers" in sub-clause 1 is unclear;
the references to "senior manager(s)" are not necessary.
Clause 2 in the Bill defines "senior manager" as a person
playing a "significant role" in managing/organising
the whole or a substantial part of the company's activities or
making decisions as to how such activities are to be managed/organised.
The use of the words "significant role" provides ample
scope for argument on the role played by individual managers.
6. Sub-clause (1) could stand alone without
the inclusion of the words "by its senior managers".
Clause 2 could be amended as follows:
"The way in which an organisation's
activities are managed or organised relates to:
(a) the making of decisions about how the whole
or a substantial part of its activities are to be managed or organised,
or
(b) the actual managing or organising of the
whole or a substantial part of those activities.
7. Whilst we accept that the court will
have to inquire into the way that "senior managers"
initiated, planned and managed the company's systems and processes,
there could be severe difficulties placed in the way of a prosecution
by including the reference to senior managers in the legislation.
Identifying the actual roles played by managers either individually
or collectively—particularly within very large organisations—could
be extremely complex.
8. Furthermore this would not reflect the
Government's views that a prosecution for corporate manslaughter
should be aimed at the organisation and the overall way in which
the organisation has managed its risk profile. In practice this
will involve a detailed consideration of the actions taken on
behalf of the organisation by senior management. But the aim of
this exercise should be to establish whether, collectively, senior
management initiated, planned or managed the systems, processes
and activities that caused a person's death. The prosecution should
not be faced with the unnecessary task of proving that some or
all of the organisation's senior managers played a "significant"
role either in making decisions about the management of the organisation's
activities or in actually managing those activities. In a large
organisation the role played by individual senior managers may
appear to be less than significant but, in overall and collective
terms, their respective contributions might have been highly significant
in the determination of the organisation's management systems
and policies.
9. In summary the prosecution should only
be required to focus on the organisation itself and the extent
to which the alleged "gross" breach of duty originated
in decisions taken collectively by its senior management irrespective
of the actual contribution made by each manager.
10. Clause 1(5) states that "An individual
cannot be guilty of aiding, abetting, counselling or procuring
an offence of corporate manslaughter". We agree with this.
However, we believe that it should be made clear that the organisations
listed in clause 1(2) can be guilty of aiding, abetting, counselling
or procuring corporate manslaughter. In practice there could be
situations where this might rise. Let's take an example. Company
A has engaged company B to carry out certain construction work.
Company A knows that company B's management is extremely poor
and has an appalling health and safety record. Company A turns
a "blind eye" to this and proceeds to engage company
B on the basis that B's price is extremely low. During construction
there is an accident on the site resulting in the death of a workman
employed by one of company B's sub-contractors. In these circumstances
it would be appropriate for company A to be prosecuted for having
aided and abetted company B's gross breach of duty.
However, we would accept that in this situation
there may be cases where company A could be guilty of corporate
manslaughter where it also has a management role in relation to
company B. This will occur, for example, where a principal contractor
on a construction site is responsible both for engaging his sub-contractors
and for providing overall management of their activities whilst
on site.
CLAUSE 2
11. We have already advised an amendment
to this clause.
CLAUSE 3
12. We have some difficulty with sub-clause
(2)(b)(iii). The jury has to consider whether the "gross"
breach results from management failure involving "conduct
falling far below what can reasonably expected of the organisation
in the circumstances". In determining whether there was such
failure the jury must consider whether the evidence shows that
senior managers caused the organisation to profit from that failure.
The reason for including this reference to profit is not clear.
Serious accidents are often the result of incompetence in management
rather than a deliberate policy on the part of an organisation
to put its profits before the safety of its employees or members
of the public. This is not a matter which should be relevant to
the issue of guilt. Rather, as the explanatory notes state (at
page 36), the extent to which a company profited would be a relevant
matter for sentencing.
13. In sub-clause (4) we suggest that there
should be an indicative list of other matters that the jury can
have regard to. One of these "other matters" could include
reference to registration, licensing and qualification schemes.
In the construction industry (and, no doubt, in other industries)
there exists many such schemes embracing corporate membership.
These schemes—which may be statutory, quasi-statutory or
voluntary—often audit firms for, amongst other matters,
health and safety performance. Although membership of many schemes
is voluntary, the reality is that membership often becomes, in
effect, compulsory in order to comply with customers' requirements
or conditions laid down by insurers. In the construction industry
the Health and Safety Executive is currently considering "core
criteria" that will help in "badging" those schemes
that audit firms for health and safety performance. This will
facilitate firms' compliance with the requirements in the Construction,
Design & Management Regulations 1994[232]
that designers and constructors should be "competent".
We propose, therefore, that under sub-clause 3(4) failure of an
organisation to belong to a relevant registration, licensing or
qualification scheme should be included under "other matters".
We suggest the following draft for sub-clause
4:
"(4) Subsection (2) does not prevent
the jury from having regard to any other matters they consider
relevant to the question including:
(i) any failure by the organisation to belong
to a relevant registration, licensing or qualification scheme
concerned with health and safety performance provide that membership
of such scheme is available to a broad cross-section of organisations
within a trade or sector and the scheme is independently audited.
(ii) . . .
(iii) . . .
Indirectly, this may encourage organisations
to join appropriate schemes and, thus, improve their management
of health and safety risks.
CLAUSE 5
14. Comment is invited on whether the offence
of corporate manslaughter should extend to unincorporated associations.
It would be an anomaly if a small company was to be successfully
prosecuted for corporate manslaughter but a much larger unincorporated
association was able to escape such liability.
15. In principle the legal status adopted
by the organisation should not make a difference as far as a prosecution
for corporate manslaughter is concerned. It should be left to
the prosecution to determine, in the individual circumstances
of the case, whether it is more appropriate to prosecute an unincorporated
body for corporate manslaughter rather than partners or the individual(s)
controlling the policy of the relevant body. In practice it will
often be very difficult to ascribe guilt exclusively to a decision-maker
within a unincorporated association in which case it may be more
appropriate to instigate a prosecution of the organisation for
corporate manslaughter.
CLAUSE 6
16. We suggest that in clause 6 that there
is included an indicative list of specified steps that a court
can order an organisation to take in remedying the matters listed
at sub-clause (1)(a) and (b). Such steps could include those powers
that the Health and Safety Executive already exercise in relation
to health and safety offences. Sub-clause (4) does not go far
enough in dealing with an organisation that fails to comply with
a court order requiring it to take the specified steps to remedy
its failing. Other than fines we suggest that the court is also
given the power to disqualify directors and order that the organisation
concerned (assuming that it is a corporation) is de-registered.
232 The Regulations provide a statutory framework for
the management of health and safety risks within the construction
industry. Back
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