160. Memorandum submitted by Dr Hazel
Hartley
INTRODUCTION
Leeds Met. University values the application
of research to learning, policy and practice and to benefiting
our local, regional and national communities. However, in writing
this response, the views expressed here are my own and not those
of Leeds Metropolitan University.
I welcome the opportunity to respond to this
consultation. I have responded to every consultation leading to
this important Bill for ten years, since the initial consultation
by the Law Commission in 1995. I have been greatly assisted in
my understanding of the consultation process and the issues around
such legal reform, by the materials provided and conferences organised
by the Centre for Corporate Accountability in London and by the
families of `Disaster Action'. In particular, I gratefully acknowledge
the inspiration, commitment and leadership of the CCA Director,
David Bergman, who has informed, supported and strategically facilitated
a long-term and positive, collaborative response to all the consultations
relating to corporate manslaughter and health and safety offences—engaging
lawyers, policy makers, bereaved families and survivors, unions,
campaign groups, MPs, and academics.
THE NEED
FOR REFORM
I agree with the context of this legal reform
on p.8 of the document, particularly the problems of the doctrine
of identification and the requirement in present law for a `directing
mind' to be found guilty of individual manslaughter before the
company itself can be convicted of such a crime. The document
rightly explains that the identification principle makes it difficult,
under present law, to prosecute large companies with complex management
structures:
This has given rise to public concern that the
law is not delivering justice, a feeling that has been underlined
by the lack of success of corporate manslaughter prosecutions,
following a number of public disasters. Examples of such incidents
include the Herald of Free Enterprise Ferry Disaster in 1987[233]
and the Southall rail disaster in 1997; prosecutions failed in
both cases.
(para 10, p. 8)[234]
THE OFFENCE
I welcome the creation of a new offence that
`should make it easier to prosecute companies : in contrast to
the current situation, a company would be liable to prosecution
even where there is no evidence to prosecute a single director
or senior manager. This should make it easier to prosecute at
the very least, medium-sized companies..' (Bergman, 2005, p.6[235]).
The new offence requires very serious management
failures by a senior manager, ie a person who has a significant
role over at least a substantial part of the organisation's activities,
`making prosecution impossible in cases where one would expect
it. The larger the company, the harder it will be to prosecute—which
is exactly the opposite of what was supposed to be the purpose
of the offence and the Bill. The Bill's focus on senior management
may also motivate large companies to delegate responsibilities
down the management chain' (Bergman, 2005, p. 6).
All the previous proposals, which I fully supported,
emphasised that the prosecution would have to prove that the death
was caused by `the conduct of the company if it is caused by a
failure, in the way in which the corporation's activities are
managed, or organised, to ensure the health and safety of persons
employed in or affected by those activities' (LCCP No 237, 1996,
para (4), p. 129).
More recently in the Government's present proposals,
it states that `Drawing on the Law Commission's proposals, the
new offence would be based on failures in the way an organisation's
activities were managed or organised-referred to as a `management
failure' ..this is designed to `capture truly corporate failings
in the management of risk, rather than purely local ones' (para
14, p. 9).
However, it should not be necessary for a senior
manager to be aware of the risk, (see Law 1996). The original
proposals, rightly in my opinion, simply referred to the company
as a whole failing to collectively risk manage, causing the death
and therefore falling far below the standard one would reasonably
expect. To reintroduce awareness of risk by a senior manager,
in this 2005 Bill, simply revisits elements of the doctrine of
the `mind and will of the corporation', smuggling it in to the
document in another guise.
A failure of a senior manager to be aware of
the risks the company created, which led to the death, should
be regarded as just that, ie a failure by the company, rather
than a `get-out' clause, to avoid prosecution or conviction.
Furthermore, why has a new element been introduced,
for the jury, in assessing the conduct of the company? This is
the proposal that they must consider, among other things, whether
senior managers "sought to cause the organisation to profit
from that failure" ?(Bergman 2005, p. 6). It would be difficult
to prove and this addition to the Bill is not explained or justified.
If additional guidance is needed for juries, then I believe it
would be more appropriate to draw on the HSE 2000 recommendations,
which identified as relevant, in prosecuting policy for health
and safety offences, such questions as:
1. Did the executive board fail to properly
evaluate the impact of all its decisions and strategies on health
and safety?
2. Did the company fail to identify health
and safety roles at every level of the company, including board
level, rather than delegating such roles much lower down the hierarchy?
3. Did the company fail to heed warnings
of risk/health and safety from employees or the public?
I agree with Bergman 2005 that the current Bill
has done a U-turn on its 2000 proposals by withdrawing from these
proposals an additional offence which `would allow a senior company
officer to be prosecuted for "contributing" to the offence
committed by the company' (Bergman 2005, p. 6). It does `not address
the current lack of accountability of company directors' (p.6)
or the issue of the lack of clear health and safety duties of
managing directors.
Bergman 2005 points out that `only eleven directors
have ever been prosecuted for manslaughter, all from small firms'
(p.7). Since 2001 `our records show that around 2 or 3 companies
are prosecuted each year for manslaughter. Therefore although
the number of prosecutions will, according to Government estimates,
more than double, it will do so from a very low base' CCA Press
Release `Is Five extra corporate manslaughter prosecutions a year
enough?'[236]
THE SCOPE
OF THE
OFFENCE
I welcome, in principle, the introduction, for
the first time, of the application of corporate manslaughter to
Crown bodies, including Government Departments.
I also appreciate the points made in the draft
Bill around:
— appropriate ways of holding the Government
accountable for matters of public policy or uniquely public functions
— the `recycling' of funding if Government
Departments face fines
— other forms of accountability of
Government Departments and other public bodies (p.10).
However, after researching disasters and the
law for fifteen years, including the problems inherent in inquests,
I view with very serious concern the proposal that this offence
will not apply to deaths in prisons, or members or the public
who die in police custody.
In my original response to the Law Commission
proposals in 1995 I emphasised the importance of interrogating
and evaluating, in legal reform processes, the interaction between
the problems inherent in the inquest system, the weaknesses of
investigations into health and safety offences and failures of
the laws of individual and corporate manslaughter. To assume that
deaths in custody should not be covered by this offence and that
`independent' inquests into deaths in custody will suffice, flies
in the face of decades of extensive research and public concern
regarding deaths in custody and the inherent problems of the inquest
system[237].
SANCTIONS
I am very disappointed that the only real penalties
for the new offence are `unlimited fines'. Such fines can damage
and act as a deterrent to small firms, but are `unlikely to trouble
major companies unduly unless they are fixed at a level previously
unheard of in Britain' (Bergman 2005, p. 6). The average fine
for health and safety offences in 2003 was £9,858 (see Hazards
89 in Bergman 2005, p. 6)[238].
I would recommend that the following are reconsidered in relation
to sanctions for this new offence:
— adverse publicity orders (see Hazards
87, including recommendations by the TUC; Bergman 2005, p. 6).
It is crucial that the proposed Bill is reviewed
further, particularly in relation to awareness of risk by senior
managers, deaths in custody and sanctions. `Salus Populi Suprema
ext Lex' The safety of the people shall be the highest law (Cicero-106
to 53 BC, the motto of the Marchioness Action Group).
16 June 2005
233 See Crainer, S. 1993 Zeebrugge: Learning from
Disaster Lessons in Corporate Responsibility, London: Herald
Charitable Trust. Back
234
See also Bergman, 1999 The Case for Corporate Responsibility
London: Disaster Action. Back
235
See Bergman, D. 2005 `No Real Convictions' Hazards 90,
pp.6-7, April/June2005. Back
236
13 June 2005, see http:www.corporateaccountability.org/press-releases/2005/jun10.htm Back
237
For example see Bergman 1991 Deaths at Work or Corporate Crime?
WEA; Scraton and Chadwick, 1987 `Speaking ill of the dead': Institutionalised
Responses to Deaths in Custody' in P. Scraton(Ed) Law, Order
and the Authoritarian State Milton Keynes, O.U.P.212-236;
Inquest Annual Reports and 2003 Report Into Failures of the Inquest
System etc. Back
238
For example Bergman 2005, p. 6, points out that `BAE Systems was
fined £250,000 in November 2004 after its safety failings
led to the death of contract worker Billy Farrell. BAE made a
£453 million profit in 2003' (Bergman 2005, p. 6). Back
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