58. Memorandum submitted by Greenwoods
Solicitors
I am head of Greenwoods health and safety department
and lead one of the teams dealing with the defence of the Hatfield
rail crash prosecution. I therefore have a detailed knowledge
of the present law and the difficulties that face prosecutors
seeking evidence of individuals who represent the controlling
mind of a company who have allegedly acted with gross disregard
for the safety of others.
That difficulty is often mistakenly understood
to be failure to identify a person who exists but escapes prosecution
through lack of evidence, when in reality I believe that in the
vast majority of cases there is no such person.
The proposed new crime seeks to overcome that
difficulty but contains one glaring error. It requires a prosecution
to prove that the organisation has committed the offence as a
result of the management failure of its senior manager or managers.
It follows that in the indictment and in the prosecution evidence,
the senior managers will have to be identified. It is quite possible
that the Defendant organisation, having regard to the totality
of the evidence, may decide to plead guilty, or at the end of
a trial may be found guilty. Either way the press will be free
to report the details of the case, including the roles played
by the individual managers.
What is objectionable is that the individual
managers will not themselves be Defendants. They will have no
say in the way that the Defence is conducted, or in the wording
of any basis of plea. They will have no locus standi in
the proceedings and will therefore be unable to clear their names
in Court. They will not be entitled to criminal Legal Aid or to
cover for legal costs under any employer's policy of insurance.
They will effectively be tried in their absence at a trial which
could render them unemployable and severely damage their reputation
with family, friends and former colleagues.
Once upon a time when disaster struck it was
blamed on the anger of the gods or a witch was burned at the stake.
Now it seems we must find sacrificial "senior managers".
They are usually able to demonstrate, inconveniently, at trial
that they are no more than individuals doing their best in a high
risk industry. It seems that the proposed solution is to deny
them a place at trial.
In my view the new law is entirely unacceptable
and will be open to challenge under the provisions of the Human
Rights Act.
After seven years of trying the Government ought
to have come up with something better than this.
31 March 2005
| 
