55. Memorandum submitted by Shires Safety
Consultants
INTRODUCTION
Corporate crime that results in death is one
of the most sensitive and evocative subjects that has been pre-occupying
the public, media, politicians, police and lawyers for decades.
Like the drunk behind the wheel, companies generally don't intend
to kill people. Yet they do kill people—sometimes by reckless
and negligent acts or omissions. And while almost without exception,
individuals will be prosecuted for involuntary manslaughter in
drink driving deaths cases, in the vast majority of work related
deaths companies are not prosecuted for involuntary manslaughter.
It is now nearly nine years since legislation
was first recommended[74]
and the UK's record of safety at work is making scant progress
towards meeting the government's target for reducing the scale
of work related death. Some 5 years have passed since the present
Government published its first consultation document.[75]
After years of headline making announcements about the fate of
company directors who are connected with fatalities at work the
Deputy Prime Minister John Prescott said:
Health and Safety is a priority for those at
the top of all organisations and they must be prepared to face
the consequences of ignoring the law; in future that could well
mean prison.[76]
Fatal accidents at work during 2003-04 showed
no significant improvement on the previous year's figures and
the trend continues to rise. There were 233 fatal accidents at
work in this period.
In early 2005 the Government announced a new
draft Corporate Manslaughter Bill. Because of the general election
the Bill could not be progressed during the tenure of the Government
and it remains to be seen if the ashes of the proposed legislation
can be re-kindled.
This response addresses what I believe are the
fundamental flaws in the draft Bill.
THE PROPOSED
DRAFT BILL
Clause 1: The Offence
This is misleading. An incorporated company
is a legal person, and can therefore be liable for strict liability
offences defined in such a way that the company satisfies the
definition of the offence.[77]
However the personality of the company is a legal fiction and
a company does not itself have a mind. It has no soul either and
therefore cannot commit manslaughter.
It must be noted that a company can sometimes
be guilty of offences requiring a state of mind under a principle,
which identifies the acts and state of mind of the senior employee
or officer of the company with a company itself[78]
where the agreement and intention of the managing director were
regarded as those of the company. Precisely, which employees or
officers are identified with the company for those purposes is
a matter of some judicial and academic debate.
In Meridian Global Funds Management Asia Ltd.
v. Securities Commission,[79]
the Privy Council took the view, were the offence is a statutory
one that is a question of construction of the particular statutory
provisions. This illustrates that the employee identified with
the company in respect of the commission of the statutory offence
(although still quite senior on the facts), need not to be classified
as the "directing mind and will" as is still required
for the primary rule of attribution, applicable to common law
offences including manslaughter.
To talk of an offence of corporate manslaughter
is in fact, very misleading, because it implies that there is
an offence of manslaughter for a corporation, which is distinct
from the offence of manslaughter for individuals. This is not
so. Only a living person can commit manslaughter.
Clause 1 (4): An organisation that is guilty of
"Corporate Manslaughter is liable on conviction to a fine
A corporation guilty of an offence under this
clause is liable on conviction on indictment to a fine and possibly
a remedial order. The fine has always been a problematic sanction.
Ashworth describes fines as the standard penalty for summary offences.[80]
In his view, they are the "normal response to offences committed
by companies"[81]
since:
The fine is often presented as the ideal penal
measure. It is easily calibrated, so that the courts can reflect
different degrees of gravity and culpability. It is not intrusive
since it does not involve supervision or the loss of one's time.
Brent Fisse has observed that:
"Criminal sanctions have an advantage over
civil penalties in achieving objectives other than deterrence.
The moral, symbolic, retributive, rehabilitative and incapacitated
aspect of criminal sanctions provides a rationale for criminal
sanctions, which civil penalties are unable to match."[82]
Several criticisms of fines can be advanced.
Fines can be regarded as merely business losses or purchasable
commodities for bailing a company out of trouble. They may get
swallowed up in the year end accounts and be written off as simply
a cost of doing business. Fines only have an impact on the finances
of the company rather than on managerial motivation and other
non-financial concerns of the company which might shape the activities,
policies on procedures for the safety at work. The fine may also
punish innocent parties such as employees and shareholders or
result in increased prices for consumers. Fines do not ensure
that corporate offenders will instigate an internal inquiry, and
will take disciplinary action against those responsible for the
act or omissions, which led to the offence. This is particularly
so in cases where any disciplinary action may encourage whistle-blowing
within a company. It may also be the case that the fines will
usurp any monies set its side or allocated to reform and improve
safety within the company.
Fines do not compensate the victims or their
families (although they will add to the consolidated fund—a
nice little earner for the Government).
Companies may dissolve themselves, or simply
not pay the fines levied on them as there is no mechanism to recover
fines from entities other than those from which the fine is levied.
The ineffectiveness of fines is in the large
part due to the fact that the amount of any fine must be sufficient
to influence future decisions made by a company yet cannot be
so large as to do real damage to that company. This uneasy balance
has been described by Fisse as the "deterrence trap".[83]
Even high fines can sometimes appear paltry
when measured in context. Consider the fine of £750,000 imposed
on British Petroleum (BP) in 1988, following an incident involving
three fatalities at its Grangemouth oil refinery. In the same
year, BP's profits amounted to £1.391 billion. The fine therefore
equated to only 0.05% of their annual profits.
Following the Southall crash in 1999 Great Western
Trains was fined £1.5 million. It represented the largest
ever fine for breaches of the Health and Safety at Work etc Act
1974. Scott Baker LJ explained:
"The fine is not intended to reflect the
value of the lives lost or the injury sustained, but it is intended
to reflect public concern at the offence committed. Although it
has not been suggested that the accident was a result of a deliberate
risk taking in pursuit of profit, the accident was the result
of senior management failure. The fine reflects the fact that
the defendant is a large and profitable enterprise: the number
of deaths and injuries and the need to alert those running substantial
transport undertakings of the need for eternal vigilance."[84]
This seemingly high sum amounted to only eight
days profit of the company.
Curiously the government proposals contain no
indication of the appropriate level of fine for the offence of
corporate killing.
David Bergman advances a cogent case for an
improved system of fining companies. He notes:
"that when sentencing convicted companies
the courts do not have sufficient detail information of the
offending company as they do for individuals awaiting sentence;
in the case of the latter—educational details, income, expenditure,
and antecedents are known and often social inquiry reports will
be furnished with an assessment of the offenders' likely response
to probation".
Whereas:
"no such care is taken in relation to corporate
offenders. No police officer or similar person gives evidence
and there is no document available to the court similar to
the social inquiry report. The court remains unaware of the most
basic information on the company-its turnover, annual profits,
history of relationship with the regulatory agency or its
general health and safety record."[85]
Clause 6: Remedial Orders
One way the courts can achieve the dual objectives
of punishing management and ensuring corrective action is taken
is by way of the remedial orders proposed in the draft Bill. This
enables the court to require a corporation to remedy a failure
within a specified time, upon an application by the prosecution.
This device is potentially the most constructive addition to the
sentencing armoury of the courts. On a pragmatic basis it is important
that the HSE control the terms of such an order to ensure its
specification is precise and its implementation can be monitored.
However, on close analysis this proposal provides its own weaknesses.
Unlike similar orders that can be made under the Health and Safety
at Work etc Act 1974 there is no right of appeal.
Remedial orders are reactive in nature—they
do not operate before the event. A case of bolting the door after
the horse has galloped. If the prosecution authority is the CPS
it is unlikely that they will have the technical knowledge or
expertise to draft the terms of any remedial order. Remedial orders
will therefore be narrow and constrictive, will not address the
management systems, nor could they order a safety audit or a change
in the safety culture that may have contributed to the death.
It is also absurd to think that waiting for a prosecution to take
place (sometimes many years after a workplace death) the company
can operate within impunity the system that gave rise to the fatality
in the first place. Paradoxically a company may be under sanction
for the same period and be found not guilty of any wrongdoing.
It is difficult to draw a distinction between
the proposed remedial orders, and the sanctions already at the
disposal of the Health and Safety Executive in the form of improvement
notices and prohibition notices. According to the HSE some 11,000
such enforcement notices are issued each year. Local authorities
also issue improvement notices and prohibition notices. The new
orders will be meaningless if served by a HSE Inspector wearing
a policeman's hat.
This clause doesn't introduce any greater penalties
than could already be imposed under the Health and Safety at Work
etc Act 1974 for lesser offences.
Under the Health and Safety at Work etc Act
1974 companies committed to the Crown Court for health and safety
offences are already subject to unlimited fines.
The proposed Bill does not seek to impose any
specific health and safety obligations or duties on the company
directors. Companies found guilty of corporate killing will be
fined, but there is to be no criminal liability of company directors.
If custodial sentences can be given for cruelty to animals, or
the killing of bluebells or killing someone outside work, there
is no reason why the same penalty should not apply to a death
at work.
CONCLUSIONS
The draft Bill is unimaginative, unimpressive
(except for corporations) and woefully inadequate. It is just
a political reaction to appease public outcry and can have no
benefit to the families of the victims of death at work- or indeed
to society at large. If the link and evidence are strong enough
to show a director knew what was going on, he can be prosecuted
now under section 37 of the Health and Safety at Work etc Act
1974. If there is not enough evidence, and the company is prosecuted
and a director suffers, there is a question of human rights. The
proposed new process weakens the burden of proof of finding directors
guilty, which cannot be right.
The proposed new offence may correct many of
the problems that are presently thwarting the conviction of errant
directors. Clearly, if the proposed forms are intended to assuage
public opinion, then new legislation is needed. However, to punish
individuals and organisations appropriately, the existing law
together with proper enforcement of an amended Health and Safety
at Work etc Act 1974 to permit more jail sentences would seem
to be wholly sufficient.
It is my belief that "corporate manslaughter"
is a dubious proposal, which can be avoided by adopting and enforcing
the existing criminal sanctions under the Health and Safety at
Work etc Act 1974. The Bill as currently drafted is hopelessly
flawed and cannot be commended.
74 Legislating the Criminal Code: Involuntary Manslaughter
L.C. 237 HMSO London. Back
75
Reforming the Law on Involuntary Manslaughter: The Government's
Proposals. Home Office. Back
76
John Prescott BBC News 7th June 2000. Back
77
See for example Alphacell Ltd v Woodward [1972] AC 824: [1972]
2 All ER 475: [1972] 2 WLR 1320. Back
78
ICR Haulage Ltd (1944) KB 551, [1944] 1 ALL ER 691. Back
79
[1995] 2 AC 500, (1995) 3 ALL ER 918. Back
80
Ashworth, A (2000) "Sentencing and Criminal Justice"
P.271. Back
81
They are also the most common sentencing options for corporate
or offenders in the USA and in Australia. See Australian Law reform
Commission, Issue Paper 20 (2001) "Sentencing Corporate Officials". Back
82
see Gunningham, N. Johnston, R. Regulating Workplace Safety,
Systems and Sanctions-Ch. 6 Oxford University Press 1999. Also
Fisse, B. Restructuring Corporate Criminal Law: Deterrence, Retribution,
Fault and Sanctions (1983) Southern California Law Review 1141
at 1147 -54 cited by Gunningham and Johnstone. Back
83
Sentencing Options against Corporations, Criminal Law Forum Vol.
No.2 1990 P. 216-218. Back
84
R. v Great Western Trains Limited- The Times 27th July 1999. Back
85
Bergman, D. Corporate Sanctions and Corporate Probation. 1992
NLJ Vol. 1444 P.1312/ Back
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