49. Memorandum submitted by Thompsons
Solicitors
INTRODUCTION
Thompsons Solicitors is the UK's largest trade
union and personal injury law firm. It has a network of 20 offices
across the UK, including the separate legal jurisdictions of Scotland
and Northern Ireland.
Thompsons only acts for the victims of injury,
never for employers or insurance companies. Thompsons has acted
for the families of the victims of a number of major public tragedies
that have occurred in the last two decades and which prompted
demands for a new law of corporate manslaughter, including the
capsizing of the Herald of Free Enterprise in 1987, the Kings
Cross fire, Southall, Ladbroke Grove and Hatfield train crashes
and the Piper Alpha oil platform disaster.
Thompsons responded jointly with the Fire Brigades
Union and ASLEF to the previous Home Office consultation on Reforming
the Law on Involuntary Manslaughter in 2000.
ANALYSIS OF
THE PROPOSED
LEGISLATION
Thompsons welcomes the fact that after almost
eight years since the then Home Secretary Jack Straw promised
that those who caused the death of innocent people through criminal
negligence should be made to pay, the Government has at last honoured
that commitment.
For the first time it will be possible to have
companies charged with a specific charge of manslaughter because
of the failings by the company's senior management.
Giving powers to order convicted organisations
to take remedial steps will be an additional weapon in the courts'
armoury. Where there are remedial steps that need to be taken
which led to the death, the court can order remedial action be
taken. Failure to comply will presumably be a contempt of court.
We very much welcome the abolition of Crown
immunity for many government bodies and agencies. This has been
a long standing anachronism. Industry has felt aggrieved for many
years that they were subject to laws to which government bodies
were exempted.
However, there are a number of areas of the
draft bill that we and the trades unions say need to be looked
at again if the legislation is to be as effective as possible.
We set these out below:
The legislation is too minimalist
The bill provides the bare minimum to justify
calling it a corporate manslaughter bill. It creates the offence
only. It appears to make no pretence at being legislation whose
purpose is to provide a comprehensive framework within which deaths
and serious injuries at work can be prevented or deterred.
It doesn't introduce any greater penalties than
could already be imposed under existing legislation for lesser
offences
Companies committed to crown court for offences
under the Health and Safety at Work Act 1974 are already subject
to unlimited fines. There is legal precedent for the level of
fines which should be imposed. There is no directive within the
legislation to require a higher level of fine for convictions
for corporate manslaughter than for criminal breaches under the
Health and Safety at Work Act.
Consequently companies convicted of corporate
manslaughter may find that they are fined at the same level as
before. Existing fines are grossly inadequate. This will undermine
the deterrent effect of the legislation.
The power of the court to order remedial action
is little different to the powers of the Health and Safety Executive
who issue some 11,000 enforcement notices each year. It is difficult
to see what real difference this power will make other than the
remote possibility of companies being brought back to the court
by the DPP for contempt of court.
It doesn't impose any specific health and safety
obligations or duties on company directors
The Directors' Duties Bill brought by Stephen
Hepburn MP sought to impose important duties on company directors.
Firstly it required the appointment of one of its directors as
a health and safety director. It then proposed a duty on directors
to take all reasonable steps to comply with its various health
and safety obligations and also to take account of information
and advice provided by the health and safety director.
Importantly, the bill set out clearly the duties
of the health and safety director. They would be required to assess
the activities of the company and how the activities affected
the health and safety of its employees and to consider the safety
measures in place and their effectiveness.
The health and safety director was then charged
with reporting to the Board of Directors on safety issues, measures,
performance, statistics and to make proposals on safety which
the board would have to consider.
The bill also required the company to make available
to the health and safety director the necessary information and
resources to do his job.
These proposals are an essential part of any
corporate manslaughter legislation if it is to be effective.
The definition of senior managers is confusing
and restrictive
For an organisation to be charged and convicted
it is necessary to prove that its activities caused death, that
there was a gross breach of duty and that this was caused by the
activities of a senior manager who played a significant role in
the decisions or management of the activities of the company which
led to the death.
In larger companies where there is a complex
management structure or, for example on construction sites where
there may be a number of companies to whom work is subcontracted,
it may be no easier to bring a charge of corporate manslaughter
than it is at present.
The focus on senior managers is too narrow
The term senior managers is narrow and confusing.
Who is a senior manager? The definition is unclear and very restrictive.
There are likely to be managers who have an important role in
the carrying out of activities and the implementation who are
not categorised as senior managers. If their acts or omissions
result in a death the company still won't be able to be prosecuted.
Just as often happens at present, senior management
may turn a blind eye to failures lower down the chain of command.
Consequently, many organisations may unjustifiably escape prosecution.
The criteria for determining a gross breach is
confusing and restrictive
The definition is sufficiently clear. However,
the questions to be put to the jury will make it difficult to
convict. For a jury to convict they will have to be certain that:
— senior managers knew or ought to
have known that the organisation was failing to comply with legislation
or guidance;
— were aware or ought to have been
aware of the risk of death or serious harm posed by the failure
to comply; and
— sought to cause the organisation
to profit from that failure.
Where there is a complex management structure,
or a multi site operation or a site with a number of subcontracted
companies operating this will be difficult.
Why should it be necessary to show the senior
managers sought to cause their organisation to profit from the
failure? This will be difficult to prove and confusing.
Presumably profit can amount to more than financial
profit. However, this is not clear. Surely all that should be
required is that the organisation be in breach of its health and
safety obligations, that the breach in the whole be a gross breach,
the consequence of which was death or serious harm. The limitation
of these obligations to senior managers is a significant weakness
in the legislation.
The bill fails to consider other more imaginative
forms of penalty which could be imposed
The bill only provides two sanctions. One is
an unlimited fine. The other is a remedial order. There are already
unlimited fines for lesser offences. There may be no difference
in fine for offences of corporate manslaughter than there are
for breaches under the Health and Safety at Work Act 1974 and
the Health and Safety Executive already have the power to make
remedial orders.
Consideration should be given to significantly
expanding the armoury of penalties available to the court:
— requiring fines to be commensurate
with the offence and significantly higher than for convictions
under the 1974 Act;
— linking fines with profitability
of the company;
— retaining the option of imprisonment;
— disqualification of directors;
— punitive awards of compensation to
be paid by the company to the families of the deceased worker.
The current level of fines are grossly inadequate
and have little if any deterrenteffect. It is often more cost
effective to ignore safety obligations and to pay a fine. Consequently,
some organisations do profit, directly or indirectly from their
failure to implement safety obligations.
Fines should be significantly increased for
corporate manslaughter and the legislation should specifically
require this.
Consideration should be given to fines which
are linked to the profitability of the company. For example a
company could be ordered to pay 10% of its profits for the next
three years with a minimum amount being specified. This would
have the effect of creating a significant deterrent but would
also require directors to have to explain to their shareholders
why profits and dividends were being adversely affected due to
the company's failure to implement its safety obligations.
Directors of companies with poor safety compliance
should not be allowed to be directors.
Consideration should be given to giving the
court the power to make probation orders against organisations.
A company could therefore be put on probation, and required to
ensure it is compliant with its safety obligations and is operation
in accordance with those obligations. The Health and Safety Executive
could be given the role of "probation officer" and required
to report back to the court periodically for the duration of the
order.
Consideration should be given to giving the
courts power to award punitive damages to be paid by the court
to the victims family. The level of damages could be determined
by the Jury as is the case currently with claims against the police.
This would be in addition to any civil damages entitlement the
family might have.
All too often the victims of a fatal accident
are the surviving family. Punitive damages is not only a deterrent
it is also a way of providing some justice to the victim's family
who are all too often forgotten.
CONCLUSIONS
The main objective of any legislation such as
the corporate manslaughter bill must be to achieve some degree
of change in behaviour which will result in a reduction in the
number of deaths and serious injuries at work.
It can seek to achieve this by making companies
and their directors accountable for their actions. Encouragement
and self regulation have had some effect in the past but on their
own are clearly inadequate. Many companies do take their safety
obligations seriously and continually work with trades unions
to improve safety. This legislation is primarily aimed at those
who do not.
Consequently the bill has to have regard to
all the different aspects of a company's activities that it is
seeking to effect in order to achieve those objectives. That must
include the role of the directors of companies, accountability
for breaches of safety at every level, not just senior managers,
and a proper range of penalties which will have proper impact
on the company and if necessary provide a significant deterrent.
The bill as it stands is unimpressive. It is
unlikely to have any significant impact on health and safety compliance
or on the number of accidents and deaths at work.
However, with significant amendment it has the
capacity to be an important and effective piece of legislation.
17 June 2005
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