45. Memorandum submitted by the Association
of Train Operating Companies
We write on behalf of the Association of Train
Operating Companies (ATOC) and its members, the names of whom
appear in the appendix to this letter.
ATOC Members welcome the opportunity to respond.
They remain committed to a close and constructive participation
in the maturing debate on all related aspects of public and worker
safety. ATOC has, for example, recently been closely involved
in discussions concerned the relationship of economic and safety
regulation as part of the Government's Rail Review, now enacted
through the Railways Act 2005 including the transfer of safety
policy and enforcement to the Office of Rail Regulation.
The submission has been prepared by the ATOC
Safety Coordination Group and endorsed by the Board of ATOC.
Some five years ago members of ATOC caused the
Safety Coordination Group to be formed to give guidance to our
legal teams at the Joint Rail Inquiry and Ladbroke Grove II Inquiry.
The group formed of Directors and senior managers nominated by
their TOC owning group then went on to examine the recommendations
from these inquiries and to oversee the implementation of the
actions agreed. Subsequently the group has given advice to the
Board of ATOC on the implications of the European Rail Safety
Directive, the proposed HSE Safety Regulations and the arrangements
to establish the Rail Accident Investigation Branch.
This response falls into two parts:
(a) this letter sets out the essence of our
submission on the key points; and
(b) those points are developed in the separate
consultation response enclosed.
We have commented upon both the draft Bill and
also the wider context. The debate about public safety and safety
offences has proved (for understandable reasons) to be a difficult
and emotive one. It is in the national interest that the debate
is resolved effectively and in a way which satisfies all of the
key stakeholder groups. We believe that the draft bill has the
potential to form one key part of that resolution.
ATOC Members however agree with the Home Secretary's
foreword that the wider issue to address is that of risk aversion.
Risk aversion creates significant problems for the UK economy
and society, does not increase levels of safety and does not help
any stakeholder group.
The issue therefore is how the law as a whole
can:
(a) provide workers and the public with appropriate
levels of protection from physical harm;
(b) identify and punish unsafe behaviour;
whilst
(c) avoid discouraging innovation and sensible
judgement calls by organisations and by individuals upon which
any successful society depends.
We comment first on the draft Bill and then
briefly upon the wider context relating to safety offences.
THE CORPORATE
MANSLAUGHTER BILL
1. ATOC Members welcome the draft Bill.
They recognise the policy development that has taken place since
previous consultations and welcome both the balance in content
and the measured tone adopted.
2. The consultation paper recognises that
corporate manslaughter is about how best to make organisations
criminally liable—particularly larger organisations with
complex management structures. The debate had however become confused
with the (separate) question of the liability of individual members
of senior management. That is also a crucial debate but is legally
distinct.
3. We believe that the clear statement that
this is an offence directed at organisations for which there can
be no secondary liability is essential and constructive. We comment
at section 3 of our response paper upon the position in relation
to safety offences committed by individuals.
4. ATOC Members also welcome and support
the proposed approach in relation to public authorities and the
distinction to be drawn between delivery and matters of policy/prerogative.
It is submitted that this links into the issue of the framework
for decisions on public safety and public policy, again dealt
with under the wider context below.
5. We anticipate that issues will arise
in specific cases around the definition of "senior manager".
However, we agree that a prescriptive definition that will fit
any circumstance is not achievable. Accordingly this is a matter
which will have to be developed and refined by case law. ATOC
Members would, however, welcome greater clarity as to whether
that question will in each case be a question of law for the Judge
to decide or alternatively a question of fact for the jury. We
believe that it should be dealt with by the Judge as an issue
of law.
6. We submit that the definition in section
3 of "gross breach" also needs to be clarified. The
drafting is not currently clear as to whether all, some or none
of the heads within section 3(2) need to be present for there
to be a finding of gross breach.
7. The position on group companies is more
complex than it appears at first sight. The need for effective
sanction in the rare cases of gross management failure is recognised.
However, there is a danger that the principle of limited liability
that underpins corporate and group structures will be inadvertently
undermined. ATOC Members submit that this is an area that requires
more detailed investigation and analysis (particularly in relation
to potential impact).
8. We agree with the Government that the
new offence should complement existing health and safety legislation.
However, if a company is prosecuted both for corporate manslaughter
and under the Health and Safety at Work Act both offences should
not be tried together. The HSWA has a reverse legal burden of
proof. Under it an organisation is guilty if it cannot demonstrate
that it has done everything except actions that are grossly disproportionate.
Corporate manslaughter will however rightly continue to place
the burden of proof firmly upon the prosecution. It is not procedurally
appropriate and would be materially unfair, to place both, and
very different, offences simultaneously before the same jury in
the same trial. A company should be open to prosecution under
both sets of offences but if that is done then a split trial is
required to avoid fundamental unfairness.
9. In terms of remedial orders, it is right
that in the rare cases where gross breach has been established
that there should be a mechanism to require the breach to be corrected
to prevent repetition. However, care is needed as large accidents
tend to result from a mix of systemic and human failings. Judges
are not experts in safety management systems or particular industries,
nor would it be appropriate to ask them to rule on societal issues
that may have far reaching effect. Accordingly alternative mechanisms
should be looked at. If the Court's power to order remediation
is retained, clear sentencing guidelines and a prescribed right
of appeal on the terms of the remedial order are needed.
10. The position of ATOC Members in relation
to further drafting points is set out in the response document
attached.
THE WIDER
CONTEXT
11. The way that the debate around punishment
for safety offences has developed over the last decade has increased
risk aversion. This assertion is made upon the basis of the direct
experience of ATOC Members and also specific evidence. These issues
are expanded in the response attached. Risk aversion creates problems
for society as a whole. It does not increase safety levels and
indeed may detrimentally affect safety.
12. It is submitted that the key to unlocking
risk aversion lies in a cohesive approach to safety policy and
safety related offences. ATOC Members note, and welcome, the Government's
assertion in the Consultation Paper that it is strongly committed
to modernising the criminal justice system. An effective justice
system requires:
(a) clarity (of both law and perception)
on the level of conduct by an organisation in respect of safety
that will be treated as criminal;
(b) clarity (of both law and perception)
on the level of conduct by an individual in respect of safety
that will be treated as criminal; and
(c) a clearly understood and effective framework
for taking decisions on matters of public safety and public policy.
In particular this must not confuse the setting of safety parameters
for a particular industry or area of activity with the obligation
to deliver safety within those parameters by organisations.
None of these requirements is currently met.
The Corporate Manslaughter Bill (if enacted) has significant potential
to address the first of the issues[10]
and should therefore be progressed. However, it is not intended
to address, of itself, the further issues at paragraph 13(b) and
(c).
We hope therefore that, in parallel with the
progress of the Corporate Manslaughter Bill, a constructive and
informed debate can take place upon these vital related issues.
We hope that these views are seen as constructive
and are of interest and would welcome the opportunity to engage
further with Government on these important issues.
13 June 2005
Response of Members of the Association
of Train Operating Companies
1. PURPOSE AND
OVERVIEW
1.1 This is the response of ATOC and ATOC
Members to the Home Office's March 2005 Consultation Paper "Corporate
Manslaughter: The Government's Draft Bill for Reform".
1.2 The ATOC Members on behalf of whom this
response is submitted are listed at appendix 1.
1.3 This submission has been prepared by
the ATOC Safety Coordination Group on behalf of the members of
the Association of Train Operating Companies representing the
27 train operators (listed in Appendix 1). These train companies
combined in 2002-03 to operate 87% of national route kilometres,
if freight operations are added this rises to over 96%. The Home
Office is respectfully asked to consider this response submission
as if each of the 27 train operators had made a separate submission.
1.4 This paper should be read together with
the letter dated 13 June 2005 from David Weir of ATOC to the Home
Office Consultation Team.
1.5 ATOC Members welcome the draft Bill.
They believe that it represents a positive development in an important
debate.
1.6 It is submitted that the drafting can,
and should, be refined in certain respects but that the overall
approach is logical. The Bill:
(a) properly distinguishes the liability
of an organisation from the potential liability of individuals
within that organisation;
(b) advances constructive proposals in relation
to the formulation of the test of liability and the liability
of public authorities.
1.7 This paper:
(a) sets out at section 2 the views of ATOC
Members on the Consultation Paper and the drafting of the Bill;
and
(b) comments at section 3 upon the wider
context.
2. COMMENTS ON
CONSULTATION PAPER
AND THE
DRAFT BILL
2.1 This section sets out comments against
each of the main sections of the Consultation Paper. The concluding
table contains relevant drafting comments.
Foreword and Introduction
2.2 ATOC Members note the Home Secretary's
Foreword and agrees with the overall analysis set out in the Introduction
to the Consultation Paper.
2.3 ATOC Members particularly welcome:
(a) the confirmation that the proposals need
to strike a careful balance between the need to hold companies
and other organisation to account for gross failings (which ATOC
Members support) and the need to avoid increasing the regulatory
burden, stifling entrepreneurial activity or creating a risk averse
culture;
(b) given that need for balance, the avoidance
of any emphasis placed upon "opprobrium" or using the
impact of the offence upon reputation as a form or criminal sanction
in its own right. For the reasons stated in the ATOC response
to the draft 2001 impact assessment, that emphasis would potentially
have discouraged capable companies with respected brands and reputations
from entering some important areas of public service delivery;
and
(c) the need for any corporate manslaughter
offence to complement health and safety legislation.
The need for reform
2.4 ATOC Members agree with the analysis
in the Consultation Paper.
2.5 On one level it is possible to argue
that no safety offences other than those arising under the Health
and Safety at Work etc Act 1974 ("HSWA") are required.
An organisation can only be subjected to a fine and an unlimited
fine is already possible under the HSWA regime. At a conceptual
level therefore corporate manslaughter represents a duplication
of offences.
2.6 However the offence of corporate manslaughter
does already exist and can be criticised on two counts:
(a) it is perceived not to be capable of
holding large organisations to account so does not enjoy public
confidence;
(b) the need to identify a "controlling
mind" leads to investigations by necessity being personalised
upon individuals and (partly as a result) becoming prolonged.
Senior individuals face the threat of being prosecuted inappropriately
for manslaughter in order to try to secure a conviction against
the organisation. The analysis of major safety events demonstrates
that they tend to be attributable to a combination of circumstances
and multiple faults of varying degrees of seriousness at different
levels. The current legal formulation therefore does not reflect
practical reality.
2.7 Perception and practicality dictates
that the offence of corporate manslaughter will continue to exist.
It is therefore important that it is restructured to be fair and
effective in dealing with the small minority of cases of gross
breach.
The Offence
2.8 ATOC Members support the approach proposed.
A comprehensive statutory definition which will be capable of
being applied to all businesses is unlikely to be achievable due
to the large number of different corporate structures routinely
encountered in UK businesses. Case law will therefore be necessary
to refine the test of who will and will not fall within the definition
of senior manager. This test will develop and be focussed as cases
come before the courts. In order to ensure consistency and in
order to provide some certainty to companies as to what the law
requires them to do, decisions in such cases will form part of
the law which will need to be applied by the court in future cases.
As such the definition of who is a senior manager will be a matter
of law as developed in decided cases.
2.9 ATOC members operate their businesses
using a range of management structures each of which has a different
division of responsibility in relation to different aspects of
the business. For example different managers may have responsibility
and decision making control over operational and engineering aspects
of the business due to the experience and competence necessary
for these roles. It may not be clear in this case whether all
those of a senior level in the company or only those with control
and competence in the relevant area are to be defined as senior
managers. This is a matter of law which will be determined in
light of decided cases as explained above. It is important for
certainty of understanding the law that the case law develops
in a consistent manner which will be best achieved by the standards
required being developed by judicial assessment of its requirements.
2.10 It is therefore strongly submitted
that the test as to whether somebody is or is not a senior manager
must logically be a question of law for the Judge rather than
a question of fact for the jury. This should be made clear in
the drafting of the Bill. If it is not so then inconsistent decisions
are likely. Inconsistency is not in the interests of any stakeholder
group. It is also likely to add to the factors driving risk aversion.
The Scope of the Offence
2.11 With respect to culpability for discharge
of public functions ATOC Members support the approach of basing
such culpability on the nature of the activities being discharged
rather than the identity of the body discharging them.
2.12 Significant debate is anticipated upon
the definitions of the activities by public bodies that should
be susceptible to prosecution. The delineation has however been
carefully drawn and it is right that matters of policy and prerogative
should fall outside the scope of the offence.
2.13 Decisions on public policy are not
however confined to public authorities. Private utilities, for
example, are called upon to take policy decisions. In line with
the principle of looking at the action involved rather than the
body taking that action the public policy exemption should not
be restricted to public authorities.
2.14 Conversely commercial (or similar)
activities not falling under prerogative or policy that might
ordinarily be provided by either a private organisation or a public
authority should fall to be dealt with under the same legislative
framework and it would be inappropriate to grant a blanket Crown
immunity.
2.15 The intention to support a "broad
level playing field between public and private sectors" is
strongly supported. ATOC drew attention in its previous response
to the anomaly that would arise if this were not the case. For
example large scale movements of people at times of national celebrations
or major events (for example large sporting events) would potentially
be distorted if private companies and public authorities cooperating
on the arrangements were subject to different standards and different
offences.
Management failure by Senior Managers
2.16 ATOC Members refer to their comments
above (2.8) relating to the definition of senior management. The
principle is supported as is the proposed definition but as noted
above the matter should be a question of law for the Trial Judge
in each case.
Gross Breach and Statutory Criteria
2.17 ATOC Members agree that a high threshold
must be retained for any offence of gross manslaughter. Health
and safety legislation exists (and includes a reverse burden of
proof) to deal with and punish system failures falling outside
this category. It would create duplication and inconsistency for
the separate offence of manslaughter to extend itself beyond the
small category of cases summarised in the foreword as "the
very worst cases of management failure".
2.18 ATOC Members agree that the original
formulation of the test by the Law Commission required clarification.
They also support the inclusion of a range of statutory criteria
to provide a clearer framework for assessing culpability. Without
that the definition of the offence becomes circular in that conduct
would be defined, in effect, as criminal if it is deserving of
being treated as criminal. Such a definition is likely to lead
to inconsistency in its application.
2.19 Objective criteria are therefore needed
to add balance and consistency. However, ATOC Members submit that
the draft of Clause 3 is not as clear as it could be and does
require redrafting. It is not, for example, clear as to whether
all of the limbs of section 3(2) must be present to create a finding
of guilt.
2.20 It is inferred that they need not be
so. The requirement within section 3(2)(b)(iii) which requires
the jury to look at whether the organisation sought to profit
from its failure will not always be relevant. Even for the small
minority of organisations which pay little heed to safety, profit
may not be a motive. Rather the cause may be ignorance or recklessness.
Similarly a public authority which does not operate on a commercial
or for profit basis would rarely be driven by a profit motive
but may still neglect its safety responsibilities.
2.21 It is submitted that Clause 3 needs
significant clarification for the reasons given in the preceding
paragraphs. The redrafted clause should also be clear as to whether:
(a) all, any or none of the states of knowledge
and intent in subparagraph 3(2)(b) must exist for the offence
to be committed; and
(b) the breach must necessarily be "gross"
if any one of the states of knowledge and intent does exist.
2.22 ATOC Members support the proposal that
the offence should not apply to unincorporated bodies but should
apply to corporations and to a wide range of Crown bodies.
Corporations
2.23 The position on group companies is
more complex than it appears at first sight. ATOC Members recognise
the need for an effective sanction in the rare cases of gross
management failure. However there is a danger that the principle
of limited liability that underpins corporate and group structures
will be inadvertently undermined. It is not clear to what extent
companies in a group structure (in particular parent companies)
may be deemed to have duties of care to individuals who work for
subsidiaries or other group companies. In normal company structures
each company is responsible for its own management and has duties
to its employees and third parties affected by its business. In
certain circumstances however there may be a legal argument that
parent companies adopt duties to individuals due to their influence
over the management of the subsidiary.
2.24 There is a risk that the pressures
that result from any major event will lead investigating and prosecuting
authorities to seek to spread the net widely to encompass other
group companies even where that is not appropriate. The effects
of that happening would be potentially significant in terms of
both risk aversion generally[11]
and, more specifically, UK inward investment.
2.25 ATOC Members submit that this is an
area that requires more detailed investigation and analysis (particularly
in relation to potential impact). If parent companies are to be
susceptible to prosecution then more detailed guidance will be
essential in relation to:
(a) The nature of the duty of care that must
be shown to exist;
(b) The limited circumstances in which it
will be appropriate for investigating authorities and Prosecutors
to pursue parent or group companies.
The Crown
2.26 ATOC Members support the analysis (paragraph
38-40) of the Consultation Paper and the balance which it seeks
to strike.
Unincorporated Bodies
2.27 ATOC Members support the analysis at
paragraphs 41-43 of the Consultation Paper. ATOC Members do not
have a view on the position of the police set out at paragraph
44.
Individuals
2.28 ATOC's Members strongly support the
analysis on individuals set out at paragraphs 45-48 of the Consultation
Paper. They noted in early consultation responses that the Law
Commission had identified that it would be "entirely contrary
to our purpose" to provide for secondary liability.
2.29 Public and media aspects of the corporate
manslaughter debate have, unhelpfully, previously confused the
issues of the culpability of organisations and the culpability
of individuals. The current Consultation Paper rightly distinguishes
those two elements.
2.30 Both aspects need to be taken forward
and we comment further on this in section 3 below—criminal
offences relating to safety for individuals also need to be looked
at. However, that should not be looked at within a Bill dealing
with the liability of organisations as to do so is unhelpful to
all stakeholders.
Causation
2.31 ATOC Members endorse and welcome the
analysis at paragraphs 49—51. It was a matter of great concern
in relation to the original consultation proposals that the risk
of death need not be foreseeable. That would have created an offence
which would be potentially made out by reference to severity of
consequence and not by the underlying culpability of the act concerned.
The present proposals address that issue and this is supported.
Sanctions
2.32 The principle that the appropriate
sanction for organisations is a financial penalty and that there
should be the ability to impose remedial orders for offending
organisations is supported. Due to the complexities of the rail
industry and the detailed regulatory framework in which it operates
ATOC members believe that it is important that sentencing criteria
are provided to Judges which ensure that all relevant factors
relating to the particular industry are looked at and sentencing
is done after analysis of the safety management issues.
2.33 In order for fines to be set at the
correct level Judges will require clarity when sentencing in relation
to:
(a) the criteria to be used to set fines
for the new offences. In particular it should be clear whether
the aggravating and mitigating features set out in R v Howe
(1999) and R v Friskies Petcare UK Limited (2000) which
apply in relation to health and safety offences would apply to
the new offences. If not the court should be clear with respect
to what criteria it should apply when sentencing;
(b) the relationship between the fine imposed
for corporate manslaughter and any simultaneous or subsequent
fine for health and safety offences arising from the same or a
related incident (if, as discussed below, prosecutions for the
new offences and for breaches of existing Health and Safety law
are brought sequentially). If two actions are brought which address
the same underlying culpability, it should be clear whether the
defendant should pay fines with respect to each offence or whether
credit should be given for fines already assessed. Alternatively
it should be clear whether one of the criteria on which fines
are calculated should be fines already paid for the same underlying
culpability; and
(c) whether fines calculated on the basis
of these criteria for each offence must necessarily be the same
if the same sentencing criteria are to be applied to both new
offences and offences under Health and Safety law.
2.34 ATOC Members appreciate the conceptual
difficulty with imposing a fine upon a public authority given
the "recycling" issue that such fines will both be paid
to derive from public funds. A fine does however send a message
as to the level of culpability and therefore still serves a purpose.
Also the scope of a remedial order for a public authority may
require additional elements targeted to the underlying systemic
failures. For example restrictions could be made upon future budgets
or additional supervisory arrangements could be put into place
for the public authority in question.
2.35 In terms of remediation orders, it
is right that in the rare cases where gross breach has been established
that there should be a mechanism to require the breach to be corrected
to prevent repetition. It would be unusual for a breach to continue
through to the late stage of trial but if that is the case there
needs to be some recourse.
2.36 However, care is needed as large accidents
tend to result from a mix of systemic and human failings. Some
aspects of the failure may be self evident; some may be more subtle
and some may cross (de facto) into issues of wider public policy.
For example past incidents at football grounds (the Bradford stadium
fire; Hillsbrough; Heysel) involved safety management issues but
also questions of the intrinsic design of stadia and the societal
behaviour of football supporters. Where an industry (as is the
case with the Railway industry) operates in a highly regulated
environment, standards of safety required are often influenced
by public policy and legislation. The extent to which incidents
are therefore dependent upon culpable actions of companies should
be considered in light this framework. If this is not done then
remedial orders may inadvertently have significant societal or
national economic effect. It would also be appropriate to consider
the degree to which existing regulatory requirements should be
or would need to be amended to implement any remedial actions.
2.37 Also ideas can be put forward that
look attractive but in fact inadvertently increase risk overall.
For example, one of the central recommendations[12]
of the inquiry into the Southall rail crash was that risk assessment
of roof hatches be undertaken and if appropriate they be included
in trains. Careful analysis, however demonstrated that the impact
upon structural integrity of the vehicles involved and the risk
of passengers exiting vehicles would have unnecessarily increased
risks to passenger safety overall. A balanced view of actual culpability
in complex industries such as the rail industry will therefore
depend upon consideration of both the existing safety guidance
and the requirement to make legitimate safety judgments based
on the best available information. Where such guidance is not
reliable legitimate decisions made which contradict the guidance
should not be considered to be culpable.
2.38 Judges are not experts in safety management
systems or particular industries, nor would it be appropriate
to ask them to rule on societal issues that may have far reaching
effect. ATOC Members therefore submit that:
(a) consideration be given to alternative
mechanisms by which remediation could be achieved, for example
by giving the Judge the ability to refer certain matters to the
safety regulator designated under the HSWA (which should have
specialist knowledge and experience in this area) to consider
if improvement or prohibition notices should be served; [13]or
(b) if the ability of the Court to make an
order is retained then both a clear appeal mechanism and clear
sentencing guidelines in relation to the intended scope and use
of remediation orders are essential (see also above at 2.33).
Extent (including Scotland and Northern Ireland)
2.39 ATOC Members recognise the issues created
by devolution and the separate legislative arrangements for Northern
Ireland. It would, however, be sensible for a single regime to
apply. It would be inconsistent, for example, for different criminal
regimes to apply to the management of a single train service running
from London to Edinburgh depending upon the precise point of its
journey.
Investigation and Prosecution
2.40 ATOC Members agree that the police
and CPS should be the main prosecution and enforcement bodies
for corporate manslaughter. However, they submit that significant
further work is required to ensure consistency in such investigations,
notwithstanding the existence of relevant protocols. In particular:
(a) it should be made clear to organisations
at all stages what offences are being investigated and by whom;
(b) it should be made to clear to individuals
who are being asked to provide witness evidence whether they are
under suspicion individually and if so for what offence(s);
(c) companies should be encouraged to provide
witnesses who are being interviewed as company employees with
full support including corporate legal representation at interviews;
(d) corporate manslaughter and health and
safety offences should not be tried at the same time (ATOC members
believe that health and safety offences should be tried after
conclusion of any corporate manslaughter trials); and
(e) the inter-relationship of penalties imposed
for separate offences but for the same underlying facts should
be specifically set out.
2.41 Where a corporate manslaughter investigation
is undertaken it should be swift and efficient. By definition
the "the very worst cases of management failure" should
be relatively readily apparent. Some corporate manslaughter investigations
have extended—often inconclusively—over a long period
of years. This is unsatisfactory for all involved—victims,
state funders and potential defendants.
2.42 ATOC Members strongly support the conclusion
of paragraph 60 that private prosecutions should require the consent
of the DPP before being initiated. The earlier proposal to the
contrary would have had the potential to cause significant injustice.
Regulatory Impact Assessment
2.43 In principle the offence should not
add to cost significantly for those organisations that are managing
safety appropriately. However there is the potential for very
significant additional (but avoidable) cost if the relationship
between enforcement and prosecution of the new offence and HSWA
offences are not aligned.
2.44 We refer to our comments at Paragraph
2.38 above and to Section 3 below which deals with the wider dependencies.
There is a need for clarity on the issues set out at paragraph
3.12 below. If Corporate Manslaughter is progressed in isolation
of those wider factors then the potential for additional indirect
cost is very significant. That aspect is not addressed by the
Regulatory Impact Assessment.
Corporate Manslaughter Bill—Drafting
2.45 ATOC Members comment below on the drafting
of the Bill:
| Clause No |
Clause Content
|
ATOC Member's comment |
Suggestion
|
| 1. | The Offence | No comments on the drafting
| |
| 2. | Definition of Senior Manager
| The definition is likely to lead to contested applications in specific cases depending upon the facts if middle ranking members of management are charged. For example a manager in charge of a single but a substantial facility.
The prosecution of middle management in connection with corporate manslaughter charges has become more prevalent in recent years.
The analysis within the Consultation Paper is endorsed however. It is not possible to anticipate and define every combination of circumstances in the definition. This will be a matter to be refined by case law.
It is submitted, however, that it needs to be made clear whether the question is any issue of law to be decided by the Trial Judge or an issue of fact for the jury.
The former is supported.
| Add additional wording to confirm that the question is a matter of law for the Trial Judge.
Enforcement guidance to be issued to clarify when the prosecution of middle management in connection with corporate offences is appropriate.
|
| 3. | Definition of Gross Breach
| The approach of having a series of statutory criteria against which conduct can be judged as a question of fact by the jury is endorsed.
However, as currently drafted clause 3(2) would cause significant difficulties It is not clear as to whether all of the limbs of clause 3(2) must be satisfied or only some of them or none of them in particular circumstances. This does require clarification.
In addition the question within clause 3(2)(a) "how serious" is an open question. It should be made clear that it is an essential requirement that the failure to comply was serious.
| Suggest redraft clause 3(2) to make it clear that the jury must conclude that the failure to comply was fundamental and serious and that the conditions contained in both clause 3(2)(b)(i) and (ii) were both made out.
Suggest that the requirement within clause 3(2)(b)(iii) should be a matter which could be taken into account but which need not be present in deciding whether conduct falls far below that which could be reasonably expected. It is difficult, for example, to see its applicability to a not for profit or public authority.
|
| 4. | Relevant duty of care |
Under the present safety system organisations other than public authorities (in particular utilities) are required on occasions to take public policy decisions, including the allocation of public resources or the weighing of competing public interest. Those are not decisions that are confined to the public sector.
For example, decisions by infrastructure managers on the use of level crossings involve a strong public policy element (the operation of the national transport system).
| Delete the words "that is a public authority" from the drafting of this section.
|
| 5. | Corporation | Please see comments at Paragraphs 2.22 and 2.23 above.
| More analysis is needed of potential impacts (for example upon inward investment). If pursued the extension to holding companies should be accompanied by clear enforcement and prosecution guidelines. Otherwise the criminal law may in practice undermine the principle of corporate identity.
|
| 6. | Power to order breach etc to be remedied
| Judges are not experts in safety management systems or particular industries, nor would it be appropriate to ask them to rule on societal issues that may have far reaching effect.
| Consideration should be given to alternative mechanisms by which remediation could be achieved, for example by giving the Judge the ability to refer certain matters to the safety regulator designated under the HSWA to consider if improvement or prohibition notices should be served.
If the ability of the Court to make an order is retained then both a clear appeal mechanism and clear sentencing guidelines in relation to the intended scope and use of remediation orders are essential.
|
| 7. | Application to Crown Bodies
| No comments | |
| 8. | Criminal procedure |
No comments | |
| 9. | Transfer of functions |
No comments | |
| 10. | Armed forces | No comments
| |
| 11. | Crown application |
No comments | |
| 12. | Borders | No comments
| |
| 13. | Abolition of liability of corporations for manslaughter of common law
| No comments | |
| 14. | Consequential amendments
| No comments | |
| 15. | Commencement
and savings
| No comments | |
| 16. | Extent and territorial application
| For the reasons set out above ATOC Members believe that it would create difficulty and inconsistency if different regimes apply in Scotland as opposed to England and Wales given that (for example) transport operations are conducted on a cross border basis.
| |
| | |
|
3. SUBMISSIONS ON
THE WIDER
POLICY CONTEXT
Safety Improvements on the Railway
3.1 Britain's railway is safer than it has ever been.
Its safety compares well both with other European railways and
other modes of transport. ATOC members believe that the new offences
should form part of the framework under which this improvement
will continue and must complement rather than detract from current
safety law.
3.2 ATOC members are keen to ensure that current improvements
in the standards of safety are continued and welcome the new offences
as an additional tool to achieve this aim. However, ATOC members
are also are conscious of the societal benefit from the efficient
and practical operation of rail services. As such developments
in safety and company law should be seen in a wider public and
policy context.
Reason for Inclusion
3.3 ATOC Members believe that risk aversion has increased
in the UK over recent years and that:
(a) this is a direct result (in part) of the profile and
temperature of the debate concerning criminal liability for safety
offences; [14]
(b) the risk aversion produces distortions in decision
making both within private companies and public authorities; and
(c) it produces perverse effects which are not helpful
either to the national interest, to society or to individuals
within society.
3.4 These comments are made based upon the direct experience
of the responding companies and also external evidence. Risk aversion
is a difficult concept to capture but two recent reports in January
2005 have provided evidence of it.
3.5 The Department for Transport has recently published
a study on "Risk Aversion in the UK Rail Industry" by
Arthur D Little. Its conclusion is that:
"There is a pervasive and self-sustaining culture of
risk averse or over cautious behaviour in the UK rail industry
which increases cost and reduces performance. It has arisen from
and been reinforced by the magnitude of the criticism brought
on the industry following the series of major accidents at Southall,
Ladbroke Grove, Hatfield and Potters Bar, including recent and
pending prosecutions"
3.6 This is not though a concern limited to rail. It
affects many other aspects of public policy and public safety.
In reporting on Education Outside the Classroom, the House of
Commons Education and Skills Committee reflected that:
"Many of the organisations and individuals who submitted
evidence to our inquiry cited the fear of accidents and the possibility
of litigation as one of the main reasons for the decline in school
trips. It is the view of this Committee that this fear is entirely
out of proportion to the real risks."
3.7 A D Little summarise risk aversion as:
"a shift in the balance of judgement in safety related
decisions towards an overly cautious position . . . evidenced
by the adoption of more expensive technological solutions, or
by the introduction of measures that curtail . . . operation .
. . in circumstances that previously would have been regarded
as making them unnecessary".
3.8 They identify the consequences of fearing the "wrong"
decision—over-elaborate analysis, multiplying the numbers
of people involved in decisions or reluctance to make a decision
at all". The report gives a number of examples.
3.9 Applied across all industries risk aversion affects
spending at a macro-economic level. If risk aversion can be addressed
at its cause therefore the resulting resources released could
support new infrastructure and optimise existing capacity more
effectively. Society would benefit. Safety would not however be
affected as risk aversion is not about increasing safety but about
a trend toward doing things less efficiently.
3.10 Risk aversion can also act to the detriment of safety—for
example by causing modal shift between different forms of activity.
3.11 As the Select Committee report on education shows,
however, this is not just about the best use of national investment.
If schoolchildren are denied out of school activities education
overall is diminished and the ability of individuals themselves
to identify risk is removed. The concern is that future generations
will become progressively more risk averse.
3.12 However, it is obviously the case that organisations
and individuals that unreasonably risk the safety of others should
be accountable.
3.13 The issue therefore is how the law can:
(a) provide appropriate protection from physical harm;
(b) identify and punish unsafe behaviour;
(c) whilst, at the same time, avoid discouraging innovation,
the benefits of responsible risk taking and sensible judgement
calls (including some that will turn out to be wrong)?
3.14 It is submitted that the issue has three main elements:
(a) the need for clarity (both in the content of the law
and the perception of it) in defining the categories of failings
by organisations that deserve punishment?
(b) the need for clarity (both in the content of the law
and the perception of it) in defining the categories of failings
by individuals that deserve punishment?
(c) Whether the UK legal framework is suitable for all
decisions that involve public safety and public policy issues?
3.15 In summary the position of ATOC Members on those
issues is that:
Liability of Organisations
(a) the linkage of the issues of corporate liability and
director liability within the wider manslaughter debate has created
significant confusion;
(b) the Corporate Manslaughter Bill has the potential
(if enacted) to help clarify the position significantly in relation
to organisations as it properly focuses upon the liability of
organisations; and
(c) clear guidance is needed on the way in practice HSWA
and corporate manslaughter offences are prosecuted when both are
in contemplation.
Liability of Individuals
(d) individuals are however confused about their own liability
position as the law imposes two separate and very different test
of wrongdoing. The test under the HSWA s37 covers simple negligence
(as well as "consent or connivance"). Negligence can
catch a single error or judgment call made in good faith that
proves with hindsight to be wrong. In contrast manslaughter requires
gross negligence to be proven;
(e) all agree that culpable behaviour should be punished.
For organisations culpability is relatively easy to identify—a
system failure. However, the question as to where the bar should
be set for an individual has not been clearly debated:
(i) If it is set too low it will punish "normal"
human error and risk aversion increases;
(ii) If it is set too high those who are genuinely
careless of the safety of others will unjustifiably go unpunished;
(f) There is an argument therefore that a clearer and
more readily understood standard is needed for individuals somewhere
between these two levels that would leave an understandable error
or valid judgement call unpunished but would punish persistent
poor behaviour, disregard for safety or true incompetence.
(g) That is not, however, currently the law. It may (or
may not) reflect current enforcement practice given the relatively
limited numbers of individual prosecutions. However, enforcement
practice is unpredictable and may always be susceptible to the
need to be seen to act in a particular case.
(h) Wherever the bar is set, there is a need for individuals
carrying out (often difficult or challenging) activities to understand
clearly the test by which their behaviour will be judged. In addition
enforcement must be consistent and avoid analysis by hindsight.
That does not always happen.
The Legal Framework for Safety Decisions
(i) The legal framework for safety decisions is based
upon the HSWA, old 1949 case law and the policy guidance developed
by the Heath and Safety Commission based upon that. That framework
was intended primarily to improve workplace safety. Whilst it
extended to protecting the public against risks from workplace
activity, it was never intended as a framework for delicate decisions
of public policy. Those who originally created the HSWA regime
clearly stated that it should not be used in that way but it has
come to be so.
(j) The HSWA is based upon the principle of reasonable
practicability. That principle requires every measure to be implemented
unless its cost is "grossly disproportionate". The obvious
consequence is that the law currently does require measures that
are disproportionate (providing they are not "grossly"
so). The HSWA also imposes a reverse criminal burden of proof.
An organisation is literally guilty unless it can prove innocence.
(k) The logic is clear when looking at a workplace safety
issue within a closed environment but less so when looking at
public policy decisions. Should the law require measures that
are disproportionate when evaluating delicate decisions on public
policy? The logic of the exclusion of such matters from the scope
of the Corporate Manslaughter Bill is that it should not.
(l) In addition the HSWA has no policy dimension mechanism
to evaluate differently decisions concerning those who are careless
or reckless as to their own safety. The duty holder (including
individual employees conscious that they may be tested by the
full rigour of the criminal law against a standard of negligence)
must regard the innocent and the wilfully reckless in the same
way.
3.16 On this last point the ruling of Mr Justice Burnton
of 26 April 2005 is welcomed. In looking at the issue as to whether
swimmers seeking to use an unsupervised natural pool exposed the
owner of the pool to prosecution under the HSWA the Judge concluded
that:
"Any risk created by members of the Club swimming in
the Pond would be the result of their deciding to do so with full
knowledge of the risks involved. Their exposure to such risks
would not have been caused by the conduct of the Corporation's
undertaking, but by their own action"
"In my judgment, for the purposes of section 3 of the
1974 Act, if an adult swimmer with knowledge of the risks of swimming
chooses to swim unsupervised, the risks he incurs are the result
of his decision and not of the permission given to him to swim.
And it follows that those risks are not the result of the conduct
by the employer of his undertaking, and the employer is not liable
to be convicted of an offence under that provision."
3.17 This echoed the conclusions of the House of Lords
in 2003 in dealing with civil liability in Tomlinson v Congleton
Borough Council:
"It is not, and should never be, the policy of the law
to require the protection of the foolhardy or reckless few to
deprive, or interfere with, the enjoyment by the remainder of
society of the liberties and amenities to which they are rightly
entitled. `They [the arguments for the claimant] attack the liberty
of the individual to engage in dangerous, but otherwise harmless,
pastimes at his own risk and the liberty of citizens as a whole
fully to enjoy the variety and quality of the landscape of this
country. The pursuit of an unrestrained culture of blame and compensation
has many evil consequences and one is certainly the interference
with the liberty of the citizen.' [Tomlinson v Congleton 2003].
3.18 However, the position is still unclear with respect
to other categories of voluntary risk taking. For example:
(a) HWSA prosecutions or enforcement action have been
brought (and have succeeded) in many cases where the injured party
has been engaged in serious and deliberate misconduct; [15]
(b) the position of minors obviously remains a sensitive
and challenging issue; and
(c) it is uncertain as to whether the Tomlinson v Congleton/Hampstead
Heath ruling is confined to voluntary recreational activities
by adults or goes further—particularly in respect of voluntary
or unsafe conduct by employees or members of the public whilst
commercial activities are taking place.
3.19 The issues are not straightforward. However, ATOC
Members submit that—whatever decisions are ultimately taken—public
policy should shape the law in this area.
3.20 Currently the converse is true. The law (specifically
the 1949 case of Edwards v the National Coal Board) dictates
and shapes public policy. When, 56 years ago, a Judge ruled, in
a case dealing with pit props, that employers must make:
"a computation in which the quantum of risk . . . [is]
placed in one scale and the sacrifice . . . involved in measures
necessary to avert the risk (whether in money, time or trouble)
[is] placed in the other, and if there [is] a gross disproportion
between them—the risk being insignificant in relation to
the sacrifice—the [employer] discharge[s] the onus which
is on him."
he would not have anticipated that his words would shape issues
of societal behaviour and the treatment of public policy in the
21st Century. Yet that has happened.
Conclusion
3.21 The practical effect of these three related issues
can be illustrated by a hypothetical example:
A road haulier runs a goods yard that is used on a 24 hour
basis with heavy trucks moving in and out on a regular basis.
It is well run.
It is on private land and not open to members of the public.
However, some members of the public (both adults and teenagers)
use a cut-through the site for convenience. Fences are erected
but are vandalised to allow access even to the extent that when
heavy-duty fences have been erected bolt cutters and tools have
been used to reopen access.
In the dark in particular this creates a limited but nonetheless
conceivable risk of those using the cut-through being run over.
There have been one or two close calls and one minor injury. The
only further practicable option available to limit this risk is
to install lighting at an installation cost of £125,000 and
an annual running and maintenance cost of £3,000. There is
however, no need to do this in connection with the operation of
the business itself.
The decision falls to the site manager. He knows that the
business runs on tight margins in a competitive industry and the
cost will represent a significant amount of the operating profit
for the year and if he spends that money he will have to freeze
recruitment and lay off two employees. As the site is only marginally
profitable it may even be that the site will close.
What decision should the law require that manager to make?
This is the type of dilemma that faces individuals across
many areas of activity—business and non-business.
3.22 For these reasons ATOC Members believe that it is
appropriate and constructive—indeed essential—for
a reasoned debate to take place on these wider issues.
APPENDIX 1
| TOC OWNER GROUP
| TOC DUTY HOLDER
|
ARRIVA | Arriva Trains Wales
|
| First Group | First Great Western
First Great Western Link
First ScotRail
Hull Trains
Transpennine Express GB Rail Freight
|
| Go Ahead Group | South Central Ltd
|
| Thameslink Rail Ltd |
| Laing Rail | Chiltern Railways
|
| London & Continental Railways Ltd | Eurostar (UK) Ltd
|
| National Express Group | Central Trains
Gatwick Express
London Lines—c2c
London Lines—Silverlink
London Lines—WAGN
Midland Main Line (MML)
One Railway
Wessex Trains
|
| Sea Containers Limited | Great North Eastern Railway Ltd (GNER)
|
| Serco/Ned Rail | Merseyrail
Northern
|
| Stagecoach | South West Trains Ltd
Island Line
|
| Strategic Rail Authority | South Eastern Trains
|
| Virgin Trains | Virgin Cross Country
Virgin West Coast
|
| |
In other cases rail companies have been fined in relation to fencing
issues where trespassers vandalised fencing to enter rail goods
yard to play "chicken" with trains.
[In many cases safety regulatory pressure has required the fitting
of window bars to every window of (old and shortly to be retired)
rolling stock at material cost. The issue is the protection of
those not following instructions not to put their head out of
the window.]
10
Providing that the introduction of the new offence is supported
by clear policy guidance on the way in which investigation and
enforcement should take place when both it and HSWA offences are
under consideration. Please see Paragraph 2.38 of the full response
attached. Back
11
Section 3 below expands upon the wider issues relating to risk
aversion. Back
12
Recommendation 83. Back
13
In practice, as any fatal event will usually trigger an HSWA
investigation also, this will presumably have been done where
needed much earlier than trial. Back
14
It is also partly a factor of the perception (well founded or
otherwise) of an increase in the numbers and types of civil claims
about which a separate debate is ongoing. That issue is outside
the scope of this response. Back
15
For example in one case two teenage boys removed the chocks and
handbrake from a water bowser being used to supply emergency drinking
water and rolled it down a hill. One of the boys was injured in
the process. The chocking and handbraking was in accordance with
published HSE guidelines. The water company's contractor was prosecutred
by HSE and fined £10K plus £18K costs on the basis that
it was not grossly disproportionate to have wheelclamped every
piece of moblie plant in use. Back
| 
