43. Memorandum submitted by the Simon
Jones Memorial Campaign
FOREWORD
This response has been prepared on behalf of
the Simon Jones Memorial Campaign. Simon was a 24 year old Sussex
University student. He was spending a year out before taking his
final exams. To support himself in this period he signed on at
an employment agency. On 24th April 1998, regardless of his total
lack of experience or training as a stevedore, the agency sent
him to Euromin Ltd at Shoreham to help unload a ship. Within two
hours of his arrival he had been killed. The Simon Jones Memorial
Campaign was set up to get justice for Simon and to get better
protection from negligent employers for others like him. After
three years Euromin Ltd was prosecuted for Corporate Manslaughter.
Notwithstanding compelling evidence of negligence, the company
was found not guilty. A better drafted law could have made this
a guilty verdict.
We welcome the fact that this long awaited Bill
has finally appeared. There are some very good points in it: it
applies to all corporate bodies and there will no longer be general
Crown Immunity. It is a disappointment that non-incorporated bodies
such as partnerships are not to be included. It is worrying that
some organisations eg prisons still escape the effects of this
Bill.
In his foreword Charles Clarke says:
"It is important that we get this legislation
right: that people are free to go about their work safely and
that those organisations that pay scant regard for the health
and safety of workers and members of the public are held to account"
We agree with the general sentiment but wish
to point out that it is not the organisation that has scant regard—it
is the decision makers at the head of the organisation who are
guilty of this omission.
INTRODUCTION
1. We are told that the Government is strongly
committed to protecting workers and the public and enabling justice
to be done. However, the draft bill does not reflect this and
shows little heed to the findings and recommendations of the Work
and Pensions select committee of July 2004. eg The committee recommended
that commitments to legislate made in Revitalising Health and
Safety in 2000 should be honoured by a Government Bill in the
next session of Parliament and that the Government reconsiders
its decision not to legislate on directors' duties and brings
forward proposals for pre-legislative scrutiny in the next session
of Parliament.
We agree that current law operates too restrictively
and fails to deliver an effective sanction.
2. The need to strike the right balance
between a more effective offence and legislation that would unnecessarily
impose a burden on business is emphasised but there appears to
be more consideration for the business than the workers. Therefore
the balance is not right.
THE NEED
FOR REFORM
3. The main reason for reform has been public
outcry at the lack of accountability when companies and in particular
large corporations cause the death of workers or members of the
public. It is good that the new offence applies to all corporate
bodies, including in certain instances parent or other group companies
and that for the first time some Crown bodies are to be included.
4. We wholeheartedly agree with the need
for reform. The identification principle has certainly stood in
the way of successful prosecutions in many cases but hand in glove
with this has been the failure to specify and clarify any obligations
by senior managers/directors to the work force and the general
public. This contrasts with very specific duties to safeguard
the finances of the organisation. To be of any value reform must
recognise that the right to life is a human right, to fail to
take all reasonable steps to safeguard it is a crime and while
taking risks with money in attempt to maximise profit can be acceptable,
it is not acceptable to take risks with other people's lives.
5. The consultation paper acknowledges that
since 1992 there have been on average only three prosecutions
per year. In this same period avoidable work related deaths have
averaged some 300 per year. Only 20% of those prosecutions have
ended in conviction. This is an outrageous record. Only 1% of
crimes were prosecuted and only 0.2% ended in conviction. The
identification principle has not been the only obstacle. The lack
of clear health and safety obligations at board level and the
failure to provide adequate resources for the HSE and training
for the police in this complex area is equally to blame.
6. There has been understandable public
concern that the law is not delivering justice. The major disasters
have received ample media coverage to fuel this but the deaths
of individual workers on sites where numerous subcontractors and
agencies are involved have received less coverage but have also
been failed by the present system. The new proposals theoretically
might enable more prosecutions to take place but we understand
that the Government's own regulatory impact assessment of the
proposed law estimates the annual increase in prosecutions would
be as few as five. This indicates that the proposals are not sufficient
to protect potential victims, will not improve access to justice
for the bereaved and so would not act as a deterrent. If the figures
we have heard are correct, the prosecution rate would only rise
from 1% to 2.6%. Even if conviction rate rose to 50% this would
still leave us with only 1.3% of avoidable deaths due to management
failure leading to a conviction. On the present figures, this
would mean four convictions per year instead of three. That would
not be a great improvement.
THE OFFENCE
7. An organisation would be guilty of corporate
manslaughter if the way in which its senior managers managed or
organised its activities caused a person's death and was a gross
breach of a duty of care the organisation owed them.
Organisations which can be convicted of this
offence are:
(b) a government department or other body
listed in the Schedule.
It is clear the Government recognises that it
is the board of directors or senior management that is responsible
for a company's behaviour and hence any acts of negligence yet
inexplicably only the company or organisation is to be held to
account and not the people responsible for its activities. This
would be like prosecuting a company for fraud but not placing
any sanctions on the directors who carried out the fraud.
Key elements of the current law are retained:
the need for an organisation to owe a duty of care to the victim
and the high threshold that conduct must have been grossly negligent.
SENIOR MANAGER
A person is a "senior manager" if
he plays a significant role in:
(a) The making of decisions about how the
whole or a substantial part of an organisation's activities are
to be organised, or
(b) The actual managing or organising of
the whole or a substantial part of those activities.
8. This means there is to be a new test
for corporate liability, which focuses on management failure at
a senior level within the organisation. This is a far more difficult
test to prove than the 1996 Law Commission's suggestion of "serious
management failure". The HSE has stated that the majority
of work related deaths are avoidable and are the result of management
failure. This failure within the organisation is not simply at
one level. It pervades the whole organisation. It could be argued
that as senior management have the power to insist that systems
are run safely eg they can insist on adequate staffing, proper
training and equipment, correct supervision and co-ordination,
sufficient rest breaks or adjustment of working hours to avoid
fatigue etc. that they are responsible for any general management
failure. But statutory duties requiring such action are only placed
on "the employer" ie the organisation. By specifying
that the failure must be at a senior level without clarifying
the duties at a senior level or even defining exactly what "a
senior level" is could make it impossible to convict this
offence. The abuses of the present system remain, where senior
management delegate responsibility down the line and so avoid
accountability by themselves or their organisation.
9. Where there are management failings throughout
an organisation it may be as difficult to associate them with
senior management as it is at present to identify a controlling
mind. By specifying senior management rather than management failings
throughout the organisation, this law would encourage directors
and senior managers to delegate management decisions to more junior
officers in the organisation so distancing themselves from the
responsibility. More junior management often have to make decisions
without the spending power that would enable them to organise
the systems more safely. eg They might need to take on more staff,
acquire better equipment or safety clothing, take on better qualified
staff who require higher wages or install better systems of communication.
If it can be shown that senior management have failed to supply
the funding needed to allow safe systems of work to be organised
and maintained, or if they have had a policy of constantly contracting
out to companies without checking that their subcontractors are
using safe systems of work, then they should be held accountable
under this law.
10. We feel that defining a senior manager
as someone who has a role in making management decisions about
the whole or a substantial part of the organisation is too narrow.
It should include all decision makers with the power to "hire
and fire", to award contracts for work to be done and who
have the authority to decide how money is allocated to ensure
systems of work are safe. It must be recognised that if there
is a general lax attitude to the welfare of the workers and the
safety of the public that this is a systemic failing and the whole
organisation should be held accountable. The law should be encouraging
a "hands on" approach to safety management from the
top down. The narrowness of this definition would allow senior
management to distance themselves from responsibility.
11. What amounts to a substantial part of
an organisation's activities is defined in such a way that very
serious management failure by senior management at any one site
or in any one branch of the organisation would escape the scope
of this bill simply because there was not proven management failure
by management at national or international level. This is setting
the bar too high and makes accountability under this law as unattainable
as under previous legislation requiring the identification of
a controlling mind. It is essential that hand in hand with this
legislation there is a statutory requirement for directors and
senior management to ensure that their organisation is complying
with all requirements under HSWA and MHSWR. In this way failings
resulting in death can be associated with the organisation as
a whole and the Bill then just might have some deterrent effect.
12. The proposed offence will not apply
to individual directors or others. This is a retrograde step as
it is impossible to divorce the behaviour of an organisation from
the behaviour of the decision makers at its head who decide its
actions and control its behaviour. It is also contrary to the
promises stated in Revitalising Health and Safety 2000. Of itself
the organisation cannot behave badly but there can be a general
climate of negligence brought about by senior management prioritising
profits/output/efficiency at the expense of the safety of the
work force or members of the public.
13. The Law Commission's 1996 report included
a proposal that a director or senior manager could be prosecuted
for assisting or conniving at an offence of corporate killing.
The new draft Bill specifically leaves this out and thus weakens
the legislation and removes any deterrent effect it might have.
14. The Government's consultation paper
of 2000 expressed concern that without punitive sanctions against
company officers, there would be insufficient deterrent force
to the new proposals and it proposed that there be an additional
offence of contributing to a management failing that caused death.
As the views from respondents were "evenly split", we
find it inexplicable that the Government should now state it is:
"clear that the need for reform arises from
the law operating in a restricted way for holding organisations
to account . . . and this is a matter of corporate not individual
liability. We do not intend to pursue new sanctions for individuals
or to provide secondary liability."
By this we understand that the Government has
ignored the views of 50% of respondents and in its desire to protect
the potential offenders from prosecution has decided to omit the
one reform, which would have had a real deterrent effect and protected
the potential victims.
GROSS BREACH
(1) The breach in the duty of care is regarded
as "gross" if the failure in question constitutes conduct
falling far below what can be reasonably accepted in the circumstances.
(2) In deciding that question the jury must
consider whether the evidence shows that the organisation was
failing to comply with any relevant health and safety legislation
or guidance, and if so:
(a) how serious was the failure to comply;
(b) whether or not senior managers of the
organisation:
(i) knew or ought to have known, that
the organisation was failing to comply with that legislation or
guidance;
(ii) were aware, or ought to have been
aware, of the risk of death or serious harm posed by the failure
to comply;
(iii) sought to cause the organisation
to profit from that failure.
15. We agree that the offence should not
target organisations that are making every effort as far as is
reasonably practicable to conduct their operation in a safe and
proper manner yet by the oversight or ineptitude of a junior member
of staff, a death has occurred. Therefore we support the test
for a gross breach as "falling far below what could reasonably
be expected".
16. We are concerned that in the effort
to clarify situations, which would meet this criterion, that an
additional test has been introduced ie whether or not the organisation
sought to profit from the breach. This is problematical because
not all organisations covered by the bill are profit making and
it fails to consider those organisations that simply do not care.
The suggestion in 1996 by the Law Commission that the proposed
offences should be reckless killing, killing by gross carelessness
and corporate killing would have enabled this to be taken into
account. The deaths would have been caused by gross carelessness.
Indeed many of the cases that have reached public notice indicate
that the main problem is a lack of care for the welfare of others
rather than a direct profit motive; eg In the sinking of the Herald
of Free Enterprise, it is unlikely that the company or any one
within it, sought to profit directly by leaving the bow doors
open but they failed to consider the possible consequences of
such activity and failed to act to prevent it. This is no less
culpable than driving at 60 miles per hour in a 30 limit and involuntarily
killing someone. The failure to consider the safety of others
and to modify behaviour appropriately is the crux of the problem.
The grossly careless behaviour does not directly benefit the individual
or the organisation. Nevertheless it is criminal and should be
treated as such.
17. While compliance or failure to comply
with Health and Safety Law and Guidance are reasonable criteria
to consider, we feel that other standards should also be considered
eg Compliance with the manufacturer's safety instructions, British
Standards, Construction Industry Training Board Standards, accepted
industry best practise etc. according to what is relevant in a
particular case.
18. It might be more appropriate to indicate
at what level negligence is regarded as gross or criminal. eg
Serious management failure might be defined as grossly negligent
if neglect of one or more Health and Safety regulations had led
to death. However, it is accepted that, as in the current position,
whether conduct was simply negligent or grossly negligent is for
the jury to decide.
RELEVANT DUTY
OF CARE
(1) A "relevant duty of care",
in relation to an organisation, means a duty owed under the law
of negligence by the organisation:
(b) in its capacity as occupier of land,
or
(i) the supply by the organisation of
goods or services (whether for consideration or not), or
(ii) the carrying on by the organisation
of any other activity on a commercial basis,
otherwise than in the exercise of an exclusively
public function.
19. When considering a duty of care to the
victim although the draft Bill spells out the types of activities
involved we feel there is still a loophole that allows agencies/contractors
supplying workers to another employer to escape accountability.
Many agencies are effectively subcontractors who simply provide
labour. Few of them are aware of or take responsibility for their
health and safety obligations (HSE research 2000). This consultation
refers to risk management but as many agencies do no risk assessment
of the work to which they send their labourers, even failing to
visit the premises of the host employer to check if safe systems
of work are in operation, it is obvious they are failing in their
duty of care. However, when such a worker is killed at the site
of the host employer, as a general rule only the host employer
is investigated and considered for prosecution.
20. I have sat in the Old Bailey and heard
a host employer's legal representative state that as the agency
worker was not directly employed by the host employer responsible
for his death that the host employer owed him no duty of care!
This area needs clarifying particularly in our present climate
of a "flexible" workforce, where not only are many workers
in the most hazardous of jobs (construction and dock work) supplied
by agencies but agencies often supply their workers to other agencies
so that it can be very difficult to establish exactly who is the
employer. In this case as in many others, the agency was not even
investigated.
21. We agree entirely that the offence needs
to be clear on the circumstances in which an organisation has
an obligation to act. Clarity here would simplify compliance with
the law and would also simplify proving the case following infringement
of the law. It is also important that any definition be as comprehensive
as possible in an effort to prevent clever argument by defence
counsel allowing an offending organisation to escape justice.
22. We accept that as an alternative to
a criminal investigation there may be other ways of investigating
the omissions by public bodies. We do not accept that public inquiries
are sufficient to hold the Government to account because the Government
has to approve the public inquiry and has power to decide its
terms of reference. This is a bit like the Government policing
itself. Accountability to ministers, judicial review and other
methods of accountability should complement the offence of corporate
manslaughter not the other way round. The court of law we hope
is truly independent of the Government. Moreover, if the Government
fails to allocate funds appropriately and in sufficient quantity
to ensure compliance of Health and Safety Law and taxpayers are
killed as a result of this, then we as taxpayers have the right
to hold the Government to account for its failure to provide adequate
protection. In this instance, the Government should be as answerable
to the taxpayer as a company has to be to its shareholders. If
the Government persistently underfunds a body that has responsibility
for enforcing safety law, then the Government is negligent.
REMEDIAL ORDERS
23. The proposed sanction would be an unlimited
fine. Such a fine is already available under HSWA yet rarely following
a death is the fine imposed anywhere near large enough to have
a punitive or deterrent effect. There is also the problem of ensuring
payment of fines. Judges seem unwilling to impose a fine of sufficient
magnitude—say 10% of annual turnover. Companies are very
adept at presenting their accounts so as to appear poorer than
they are and some companies simply go into liquidation to avoid
paying the fine and then set up elsewhere under another name.
The assets of a company under investigation would need to be frozen
to prevent this last evasion.
24. Greater deterrence would be effected
if an organisation found guilty of corporate manslaughter had
to cease operating until all of the failings that led to the death
had been rectified and an acceptable plan of action introduced
to prevent future deaths. For very large corporations only the
branch that caused the death would need to be sanctioned in this
way but the financial loss incurred would punish the whole group.
25. Remedial orders would also be a better
way of punishing Crown bodies but the problem would be less complicated
and hopefully would never arise if individual decision makers
were held liable for the managerial failings. It is wonderful
how personal responsibility focuses the mind.
26. We agree that a time limit should be
set for taking remedial action but feel the fine for failure to
comply is set too low.
It may be the Home Secretary's desire to relieve
business of its "burdens" that is responsible for the
commendable proposal—that courts can order an organisation
that has been convicted of corporate manslaughter to take specified
steps to remedy the breach in care which led to the death—being
made worthless by the proposed maximum fine being set at £20,000
for failure to remedy the problem.
27. One of the many factors leading to Simon's
death was a failure to employ sufficient staff and in particular
a supervisor. As the annual pay of a supervisor is likely to be
more than a one off maximum fine, it is unlikely that a company
in this position would take remedial action. When we consider
the costs of rectifying problems on the railways to prevent further
disasters, it is obvious that this fine would have no deterrent
effect whatever. Any fine must be suitably large to ensure that
the organisation will avoid incurring it or failure to comply
should result in a seizure of an organisation's assets.
28. Permitting the organisation to be granted
serial extensions on the time allowed could lead to perpetual
procrastination and the failings would never be put right. Preventing
an organisation from operating and so making money during the
remedial process would encourage it to expedite the remedial course
of action.
APPLICATION TO
CROWN BODIES
29. The main reason for reform has been
public outcry at the lack of accountability when companies and
particular large corporations cause the death of workers or members
of the public. It is good that the new offence applies to all
corporate bodies, including in certain instances parent or other
group companies and that for the first time some Crown bodies
are to be included.
We agree that Crown Bodies should not receive
blanket immunity. This is an outmoded concept with little to justify
it.
30. We have some reservations however on
those Crown bodies and other organisations that are to be exempt
from the law. In particular it is possible, that exempting the
Crown from this offence when it or a private company acting on
its behalf in the care of prisoners is responsible for a death,
may be in breach of Articles 2 and 14 of the Human Rights Act.
It is difficult to see how an inquest or public inquiry could
be sufficient. These investigations do not apportion blame and
do not impose any sanctions. Therefore they are not an adequate
means of redress.
31. The excuses put forward in paragraph
20 of the consultation for excluding Government bodies from the
offence of corporate manslaughter bears a remarkable similarity
to the arguments put forward by the directors of large corporations
to distance themselves from the offence. If the Government procures
services from a contractor that has a known track record for causing
fatalities of members of the public and its workforce, it is culpable
because it should have chosen a contractor with a good safety
record and should have included the requirement to operate safe
systems of work as part of the contract. In short the Government
is failing to accept responsibility for the chain of events reaching
down from its decisions. Perhaps if the Government were to be
held accountable it might be more circumspect with how it discharges
its duties and dispenses our taxes with benefit to us all.
32. We are particularly concerned that functions
relating to the custody of prisoners should be exempt from this
act. Prisoners are particularly vulnerable members of society.
There have been a number of high profile cases where negligence
by the prison service, companies running private prisons and the
police have resulted in the untimely death of prisoners. The worry
is that there are many more similar cases, which fail to reach
the public notice. We can only stress in the strongest terms that
those with responsibility for the care of people in custody should
be held accountable under this legislation.
33. It is not good enough to rely on inquests
because these are conducted by coroners who are for the most part
untrained for the job. Some are doctors, who might be able to
direct an inquest into a death from possible medical negligence,
but when it comes to a death in custody, we need someone trained
in law to analyse what duties were owed to the prisoner and to
establish whether these duties were appropriately discharged.
The inquest should be retained and in future
be carried out by coroners who have specialised in this area of
law. This should be complementary to holding prison services and
police to account under this law if the evidence indicates that
management failings resulted in the death.
UNINCORPORATED BODIES
34. The offence does not apply to unincorporated
bodies. While we appreciate that the structure of certain unincorporated
bodies would make it difficult to prosecute them, we feel it would
be better to have the law cover all employing organisations and
to have a separate schedule of those types of organisation which
are exempt.
We feel it is disingenuous to argue:
"extending the law to unincorporated bodies
is not a question of reforming the current law, where it already
applies . . . It raises a question of whether the law should be
extended to apply to a new range of organisations."
Applying the law to Crown Bodies is already
doing this; why should unincorporated bodies be treated differently?
35. We note that the draft Bill excludes
the police forces from those bodies that come within the range
of the Bill. Although a desire to include them at a later date
is expressed we feel it is worrying that they are not included
from the outset. There have been recent high profile cases of
deaths in police custody and police exceeding their powers with
regard to policing peaceful demonstrations. If coralling peaceful
demonstrators and members of the public who were simply going
about their lawful business and denying them access to food, water,
shelter or toilet facilities results in the death of one or more
of those people, then the police force responsible for this action
should be held to account. It is also possible that denying people
such basic human rights could result in a separate charge under
ECHR.
CAUSATION
36. We have little problem with the Government's
position on causation. It is reasonable that corporate liability
should not ensue where an individual has intervened in the chain
of events in an extraordinary fashion causing death, or the death
was otherwise caused by an extraordinary or unforeseeable event.
EXTENT AND
TERRITORIAL APPLICATION
37. The offence applies only to England
and Wales. In common law manslaughter an individual can be prosecuted
for a death which occurred abroad. We fail to see why employing
organisations should be treated more leniently than individuals.
While it might be difficult to prosecute in some circumstances
we feel that if a senior management failure in England caused
a death in say Northern Ireland or Germany, then the organisation
should be prosecuted because the crime took place in England.
INVESTIGATION AND
PROSECUTION
38. We are pleased to see that the new offence
is to be investigated by the police but that the expertise of
the HSE will also be used. It is good that the Protocol for Liaison
has been further developed and that the CPS will be the prosecuting
authority as it is for all laws of homicide.
Because of the complexity of the investigation
for this offence and the lack of experience by police forces in
its investigation, we would request that the Home Office would
introduce specific specialist training for police to allow them
to conduct investigations more effectively. This lack of training
combined with the sparseness of previous cases for reference makes
it more difficult to prepare an effective prosecution case.
PRIVATE PROSECUTIONS
39. We do not agree that removing the requirement
to obtain the consent of the Director of Public Prosecutions to
bring proceedings for the new offence would lead to spurious,
insufficiently well-founded prosecutions being brought, which
would ultimately fail. Once more it is the interests of the potential
offender that are put to the fore—not those of the victims
and the bereaved families.
It should be noted that there is already an
unfair financial and emotional burden placed on the bereaved relatives.
They have often lost their breadwinner. Where a single young person
is the victim the family have huge financial burdens associated
with the death and inquest for which no help is available and
no financial compensation is payable by the company in these instances.
40. The financial hurdles alone are so great
that only in exceptional cases could a private prosecution be
considered. There is therefore virtually no chance of an insufficiently
well-founded private prosecution. For this reason alone it is
unreasonable to add the additional obstacle of requiring the consent
of the Director of Public Prosecutions.
SUMMARY
41. We reiterate that we are pleased that
a draft Bill has finally been produced but feel that as it stands
it will not protect workers or members of the public from being
killed as a result of work related activity. We do not feel it
places sufficient responsibilities on organisations and the decision
makers who control the activities of those organisations. As it
stands it would be difficult to convict any organisation of the
proposed offence and the penalties need to be more innovative
and effective to provide an adequate deterrent.
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