38. Memorandum submitted by Robert Erskine
CONSULTATION IN THE SIGNET LIBRARY ON MONDAY
6 JUNE ON THE DRAFT CORPORATE MANSLAUGHTER BILL FROM WESTMINSTER,
REPORT FROM DELEGATE, ROBERT ERSKINE
Although the context of the seminar in the Signet
Library was on the possible adoption of the bill in Scotland,
there were severe reservations expressed about the core rationale
of the bill. You will see that the meeting voted overwhelmingly
against adoption of this Bill in Scotland, but it emerged grossly
tattered for its further progress in England without much greater
emphasis on getting improvements to the quality of evidence in
manslaughter trials and responses to the general criticism that
this draft Bill was feeble and not worthy of Parliamentary Time.
1. INTRODUCTION
This was a meeting convened by solicitors Maclay,
Myrray, Spens, ending with voting on a motion "That this
House believes that the Corporate Manslaughter Bill is a positive
development which will make organisations more accountable for
fatalities and that the Scottish Executive should pass similar
legislation without delay". This report gives details of
the Programme of consultation on 6 June, a Profile of those attending,
a summary of what the platform speakers said, a summary of what
was said by speakers in "open forum"; the outcome in
the vote, in which by 86 to 2 the meeting rejected this proposed
Bill. As an academic in anticipation of the meeting I researched
the draft Bill and selected crucial quotes and added my own comments
and a crucial case study from my own files on the Ford Pinto,
illustrating the role of exemplary damages awarded in the USA
to a case of indifference to human life.
2. PROGRAMME
4.30 pm registration, 5.00 pm Introduction to
Bill, Debate and Open Forum, 6.15 Vote, followed by drinks and
canapes, 7.30 finish.
3. A PROFILE
OF THOSE
ATTENDING
There were 88 in this seminar. They were a mix
of professionals, consultants, lawyers, academics, (criminology,
risk management), representatives of City Councils, the Crown
Office, Royal College of Surgeons, Procurator Fiscal's Office,
the Scottish Executive, (civil service), Scottish Criminal Records
Office, Law Society of Scotland, Church of Scotland, Health and
Safety Executive, Strathclyde Police, Off-shore Industry Laision
Committee, Scottish Trades Union Congress, Faculty of Advocates.
4. OUTCOME
The programme went to plan with four main speakers
on the floor from 5 pm till 5.45 pm, followed by 30 minutes of
speeches from the floor and responses from the panel, and the
vote at 6.15 pm.
The motion of support was lost in a show of
hands by 86 to 2. The feeling of the meeting was that the Bill
was deeply flawed, feeble, and not deserving of Scottish Parliamentary
Time. On reflection, it would seem that the same mud would stick
for our Westminster fraternity. The Bill needs a radical refabrication
before absorbing any Parliamentary time.
5. REPORTING
THIS EVENT
I attempt to summarise what was said by the
four main speakers from oral notes taken, and the printed notes
of forthcoming speeches which had been prepared by hosts MMS,
a firm of Solicitors, and add briefly the oral contributions from
the floor in the "open forum" bit.
Main Speakers
David Leckie. He is a partner at Maclay
Murray and Spens, Commercial, Litigation and advocacy with particular
expertise in health, safety and environmental law.
He explained that English position was difficult
with prosecution collapses for corporate manslaughter in all main
large organisation disasters, Alpha Piper, Herald of Free Enterprise
and more recently with the Hatfield Rail Track accident, and Scottish
Company Transco. There were a few small companies who got convictions,
but the identification of locating a directing mind was seemingly
impossible in large corporations.
Under the proposed new Act "An organisation
will be guilty of the new offence of corporate manslaughter if
the way in which its activities are managed or organised by its
senior managers causes a person's death through a gross breach
of a duty of care." On conviction the organisation will be
subject to an unlimited fine. There are no sentences of prison
on individuals.
Richard Keen QC. He has appeared in many
trials involving health and safety at work.
He spoke against the proposed new act. Scottish
tradition has a preference for common law over statute law and
the present common law of culpable homicide requires mens rea
but a corporation does not have a state of mind. In Scottish
civil law there is a doctrine of vicarious responsibility from
which pecuniary damages may be laid. He raised issues of the aims
of social policy. Were they aimed at retribution? In his view
the present proposed new offence may deflect attention away from
an individual.
Dr Dave Whyte, Criminologist, from The
University of Stirling.
He picked up the issue of Social policy, deterrent
etc. Can a tough punishment and likelihood of being caught, be
deterrence if applied to corporations? The new act did not do
enough to pin responsibility on individuals and there was no provision
for jail sentences for breach of the offence. This was a very
feeble act. In both Canada and Australia, countries with common
law traditions, individuals within corporations can be convicted
for death or injury for homicide and absorb custodial sentences,
something beyond what we have with our Safety at Work legislation.
But there are many variations among the different states in Canada
and Australia, and no obvious "best model" to guide
Scotland's choice.
Ian Tasker of the Scottish Trade Union Congress
was indisposed but his colleague Ronald Donald stood in
at short notice.
He gave the meeting some horrific statistics
on slides of the volume of 400 deaths a year in industrial accidents
and no long term decline in the number/hundred thousand employees
since 1966. Also the conviction rate at only 59% of cases brought
was far short of that in England. He was appalled at the Scottish
enforcement deficit for response to fatal death at work.
6. OPEN FORUM
Erskine got the microphone first and
made a contribution on experiences of teaching risk management
for 20 years and having been exposed to 500 undergraduate presentations
on the big disasters, Piper Alpha, Herald of Free Enterprise,
Kings Cross Tube Fire. He said that there was a very definite
pattern of learnable lessons emerging from the 500 presentations
of the 19 year-olds, far superior in quality and conviction to
the 115 unlearnable lessons to be learned from the distinguished
Lord Cullen and other Enquiry Chairmen. The common factor was
that around all those big disasters were employees who knew of
the dangerous nature of their environment, but did not have a
mechanism where they could whistle-blow without being victimised.
The solution to this dilemma was really simple. Set up an Independent
Authority, (IA), as the antennae of whistle-blowing complaints.
Then via e-mail from IA, to the Health and Safety Executive, and
the transaction would then be passed on to the company for response.
The groundrule would be that the complaint reaches both local
management and top management within a few hours. The complainer
is anonymous until there is a subsequent judicial process. The
tracing of this transaction flow prima facie is evidence
of awareness and accountability. The local manager can only discharge
his responsibility if he can prove that he pressed for remedial
action at a higher level of management. Thus you can establish
a chain of responsibility to the controlling mind of the corporation,
enough to establish the crucial missing mens rea for common
law culpable homicide. And the joy of this approach is that the
evidence chain is immediately opaque. No need for enquiries to
sit for months to find out what happened. Trial and conviction
in just a few weeks, what an improvement over this feeble Westminster
proposal which had nothing to say on ways of improving the quality
of evidence.
The panel made a short response. Yes they liked
the theme of quality of evidence, but were concerned that the
mechanism might be expensive to get implemented, but there was
soon other support expressed from the meeting.
(Expense should be very modest. The IA as conceived
is no more that a post office feeding e-mail to Health and Safety
Executive, who are obliged then to pass on to the offending company,
another post office role, costs almost nothing in contemporary
"wired society".)
Another speaker extolled safety management as
part of airline management already an established system for investigating
"near misses" and any other life threatening events.
Another speaker regretted the prevalence of
acceptance of a culture of killing employees, while other issues
had not yet been sorted out and lessons shared. He pleaded for
the legal profession to help engineers. The case referred to was
one where a fatal accident had been caused by dodgy equipment.
And other companies were denied the vital information so that
they could respond to the danger, but were denied access. Grounds
given for secrecy were clients not wanting to expose themselves
to further civil liability.
7. A USEFUL LEARNABLE
IMPLEMENTATABLE RECOMMENDATION
FROM THE
KINGS CROSS
UNDERGROUND DISASTER
"At every month's board meeting safety
should be number one on the agenda, before any finance report".
This was to develop a sure safety culture in London Transport
and has indeed been implemented. Anyone travelling on the tube
can sense the amount that has been done to improve safety overall.
A brilliant guideline for introducing safety culture, and should
be applied in every organisation.
8. PREPARATION
FOR THIS
MEETING IN
EXCHANGES WITH
OTHER ACADEMICS
In preparation for the event I downloaded the
draft Bill, and from that material isolated a few key quotations
and then added my own comments. The result is enclosed.
Without working for a much higher quality of
evidence which pins accountability on local and senior management
I don't see the extensions of the existing law as particularly
significant. Running the new definitions over the old cases, (I
have in mind Zeebrugge ferry and Alpha Piper), I still doubt whether
prosecutions would have been successful.
I did my degree in Law at Cambridge in 1956-59
and find developments in the law of negligence very slow after
nearly 50 years.
9. CASE OF
THE FORD
PINTO FROM
SUNDAY TIMES
12/2/68 THE ARITHMETIC
THAT COST
£66 MILLION IN
CIVIL CASE
This illustrates how a US jury in a civil action
awarded very substantial exemplary damages against the Ford Motor
Company for knowingly refusing a product recall on a dangerous
vehicle. There is no reason except custom and practice why in
Britain the civil law is not used to punish individuals who are
aware of product danger.
BENEFITS: to Ford for doing nothing and paying
the going rate of compensation
Savings—180 burn deaths, 180 serious injuries,
2,100 burned vehicles.
Unit cost—$200,000 per death, $67,000 per injury,
$700 per vehicle.
Total Benefit—180 * ($200,000) + 180 * ($67,000)
+ 2100 * $700 = $49.5 million.
COSTS: of recall
Sales—11 million cars, 1.5 million light trucks.
Unit cost—$11 per car, $11 per truck
Total cost—11,000,000 * ($11) + 1,500,000 *
($11) = $137 million.
Calculations from a mole
These are the confidential calculations that
convinced a southern Californian jury that America's giant Ford
Motor Company had knowingly sold some 2 million of its Pinto sub-compact
cars with a potentially lethal fault in its petrol tank. Last
week the jury awarded 18 year old Richard Grimshaw more that $128
million, £66 million in compensation and punitive damages
for the terrible burns he suffered when the Pinto he was in burst
into flames after a minor accident.
The formula illustrated above is taken from
an internal memo of 1972. At the top are Ford's estimated "benefits"
to society in financial terms, of saving the lives of the 180
people likely to be burned to death in a year and a further 180
people from receiving severe burns in accidents where the car
rolls over and the fuel tank ruptures. Total Saving $49.9 million.
Below this is set the cost to Ford of altering its cars and light
trucks to conform to safety standards then being progressed through
Congress to prevent petrol tanks exploding after an accident.
Total cost $137 million.
Ford's engineers concluded that the cost to
Ford of the alterations were almost three times greater than the
benefit to safety that would flow from such alterations, "even
using a number of highly favourable benefit assumptions."
(Ford has never sold the Pinto in the UK).
Risking life for profit
Richard Grimshaw's lawyers are convinced that
the huge punitive damages resulted from the jury's determination
"to punish Ford for risking life for profit".
(Comment from Erskine. Whereas it took a "mole"
to flush our this dreadful case after he had retired, we should
today have whistle-blower protection, so that all employees become
potential policemen while they are still on the job).
10. CORPORATE
MANSLAUGHTER: THE
GOVERNMENT'S
DRAFT BILL
FOR REFORM
CM 6497
Quotes from the above and comments from me in
brackets. Paragraph numbering follows that of the draft Bill.
Foreword. Our proposals tackle the key difficulty
with the current law: the need to find a directing mind of a company
personally guilty of gross negligence. We propose a new test that
looks more widely at failings within the senior management of
an organisation. But this is not about new standards. It is not
my intention to propose legislation that would increase regulatory
burdens, stifle entrepreneurial activity or create a risk averse
culture, and I am satisfied that these proposals do not.
3. A key part of these proposals is striking
the right balance between a more effective offence and legislation
that would unnecessarily impose a burden on business. The draft
Bill achieves this by focussing on what is currently wrong with
the law: the need to find a very senior individual personally
guilty of gross negligence manslaughter before the company itself
can be convicted. At the heart of the new offence, therefore,
is a more effective means of attributing to an organisation failures
in the way its activities are organised or managed at a senior
level.
(Erskine comment. No, it is more than a matter
of defining legally the personal liability of senior management,
it is the further requirement to establish a sound audit trail
from whistle-blower anticipating the life threatening condition
to that senior person responsible).
8. As the law currently stands, before a
company can be convicted of manslaughter proof is required that
a directing mind that is, an individual at the very top of the
company, who can be said to embody the company in his actions
and decisions, is themselves guilty of manslaughter. Only then
can the company be convicted. This is known as the identification
principle. Without sufficient evidence to convict such an individual,
the prosecution of the company must fail.
(Erskine comment. In the past published cases
failure of prosecution has been primarily because of the quality
of evidence available from those nearest the disaster. Yet the
enquiry chiefs averred that employees were totally aware of the
dangerous nature of their work environment, but whistle-blowing
internally was never an option if they wanted to keep their job.
And there is no recognised mechanism to whistle-blow with protection
to a competent external independent body. Without this warning
of danger to senior management no prosecution either under existing
law or under the developments in this draft law could be expected
to bite. An effective whistle-blowing system is not just a luxury
but the keystone to making advances in this area of manslaughter
law).
44. The one exception that we propose to
this approach is in respect of the police. Whilst the new offence
would apply to police authorities, as incorporated bodies, police
forces themselves are not incorporated and therefore would not
be covered. Nor are they Crown bodies and so they are not covered
by that aspect of our proposals either. We do not consider that,
in principle, police forces should be outside the scope of the
offence and our intention is that legislation should in due course
extend to them. We are currently considering how best to achieve
this, given their particular legal status.
(Erskine comment. Yes, indeed the police force
should definitely be covered. Recently there have been awful instances
of officers exceeding 150 mph and getting off from soporific crown
courts. What if deaths had occurred, would the chief constable
still retain no liability, unbelievable).
52. As an offence that applies to organisations,
we consider that the appropriate sanction would be a financial
penalty. The draft Bill makes provision for this and organisations
found guilty of corporate manslaughter would face an unlimited
fine. Where the circumstances of the case merit, a fine can be
set at a very high level.
(Erskine comment A fine is not an appropriate
sanction as it would be off-laid by insurance and anyway would
generally not be paid personally by the negligent manager).
53. There is a good argument, however, that
fining a Crown body serves little practical purpose and simply
involves a recycling of public money through the Treasury and
back to the relevant body to continue to provide its services.
And regulatory legislation that currently binds the Crown has
stopped short of providing for criminal proceedings and fines
for Crown bodies. Whilst the draft Bill currently provides for
a Crown body to be liable to a financial penalty, we would welcome
thoughts on this issue.
(Erskine comment. It is obvious that the penalty
should be a jail sentence for serious breach for this legislation
to bite).
60. The consultation paper in 2000 also
dealt with the question of consent to private prosecutions. It
proposed that there should be no requirement for individuals to
obtain the consent of the Director of Public Prosecutions to bring
proceedings for the new offence. There was significant concern
amongst respondents that this would lead to insufficiently well-founded
prosecutions, which would ultimately fail, and would place an
unfair burden on the organisation involved with possible irreparable
financial and personal harm. The Government recognises these concerns
and the draft Bill specifically requires the consent of the DPP
before proceedings can be instituted.
(Erskine comment. No, in the past victims have
been able to organise themselves and it is a scandal that they
should not have the right to institute prosecution if they have
credible evidence, and possibly insurance cover. However, it might
be more questionable to grant legal aid.)
62. In summary, we have identified costs
of some £14.5 million to industry. A 1% increase in compliance
with health and safety measures would provide some £200-300
million in savings in the costs associated with workplace injuries
and death. We will continue to develop the RIA in the light of
comments on the draft Bill and would welcome further information
from respondents on potential costs.
Clause 6. Power to order breach etc to be remedied
29. Clause 1 provides that the sanction
for the offence is an unlimited fine. Clause 6 gives the courts
a power to order an organisation convicted of the new offence
to take steps to remedy the management failure leading to death.
Clause 6 also enables a remedial order to specify that the state
of affairs resulting from the management failure, and representing
the more immediate cause of death, be addressed. For example,
where the management failure related to inadequate risk assessment
and monitoring procedures, the consequence of this might be inadequate
safety precautions, leading to a death. The court would be able
to order that both failures be addressed.
(Erskine comment. Yes, but a possible prison
sentence for the responsible managers would be far more effective
than other sanctions, save a very heavy fine.)
11. SERENDIPITY
AFTER THE
SIGNET LIBRARY
CONSULTATION OF
6 JUNE
When I travelled back to Linlithgow, who should
come and sit opposite me but Fiona Hislop, MSP for this area.
She was intrigued to hear about our deliberations in the Signet
Library and is determined to get the Scottish Nationalists to
vote against the Corporate Manslaughter Bill when it comes to
Holyrood. Wow, that is a double whammy for the lobbyist! I imagine
the Tories will oppose it too.
Erskine CV. Retired academic in 2001, after
25 years in Glasgow Caledonian University, developing and teaching
the first degree course in Risk Management in the EU. I absorbed
£35,000 research funding between 1992 and 2004 in crucial
field of disaster prevention, with academic conference papers
delivered all over the world.
9 June 2005
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