Current health and safety legislation is inadequate when defining corporate manslaughter. However, this looks set to change. Daniel McShea reports
Last month the Association of Local Risk Managers (Alarm) warned public sector risk managers to brace themselves for the possible introduction of corporate killing legislation. Pressure from a number of action groups on government has finally resulted in the introduction of this long-awaited legislation.
But where do insurers stand in terms of liability in the future? In a recent case heard at Stoke-on-Trent Crown Court, Brian Dean, the proprietor of Brian Dean Demolition and Civil Engineers, was convicted of the manslaughter of a father and son who died when a brick tunnel kiln collapsed on them.
Dean was sentenced on 24 May to 18 months' imprisonment. While not directly relevant to considerations of corporate manslaughter/killing, the case is interesting in that there were failings other than Dean's that may have led to the collapse. This was reflected in the fact that the owners of the kiln were themselves convicted of health and safety offences. However, one can envisage circumstances where one jury might reach a different decision of criminality from another.
There is, perhaps more importantly, a perception that criminal law does not deal effectively with companies whose actions or inactions have caused disasters. This is demonstrated by the fact that there have been only four successful prosecutions for corporate manslaughter, each of small companies where the directors were heavily involved in the decision-making leading to the fatality.
With large companies it is generally harder to connect the wrongful act causing the death with someone representing the directing mind. In general, people at a lower level naturally undertake the acts that have the potential to cause death so that causation will only rarely be established against those representing the directing mind. This can result in small companies being convicted for offences of manslaughter involving similar conduct to large companies that escape liability.
The current situation
A company can only be convicted of corporate manslaughter when an individual representing the directing mind is himself liable for involuntary manslaughter (the identification principle). This has been criticised, as those representing the directing mind are unlikely to be sufficiently involved with the day-to-day activities that have potential to cause death.
In an attempt to overcome this, the government published proposals in May 2000 to introduce, among others, a statutory offence of corporate killing.
The proposals, if implemented, could have a significant impact, as any conviction for corporate killing is bound to have a major effect on an organisation's reputation, goodwill and, in public companies, its share price.
However, it is not only employing organisations that need to be aware of these proposals, since, if implemented, they will probably lead to more intensive investigations than for breaches of health and safety legislation and more prosecutions than for the current common law offence of manslaughter.
Furthermore, with so much at stake for organisations that will wish to avoid being labelled a corporate killer, actions will tend to be more vociferously contested than normal health and safety prosecutions.
An undertaking - which would include any employing organisation - will be guilty of corporate killing if:
What constitutes a management failure is when a company's activities fail to ensure the health and safety of persons employed in or affected by those activities.
However, despite promises to bring forward legislation, no steps have been taken to bring a bill before parliament. The consultation for the government's proposals ended in September 2000. The Queen's speech in June 2001 set out the government's programme for the session up to October 2002, but made no mention of legislation to reform the law of corporate manslaughter, although later statements released by the Home Office have continued to state the government's commitment to the proposed changes.
At a recent British Safety Council conference on corporate killing, Valerie Keating, the Home Office's head of criminal policy, was reported as saying that the government had not decided whether to consider the proposed offence in the next parliamentary session.
She said that the government's consultation paper on reform merely posed questions rather than setting out definitive statements of government policy. She said the document was not a statement of intent and the document was not final.
Conflicting accounts
However, her comments do not sit entirely well with statements made by Dr Alan Whitehead, parliamentary under-secretary of state for Transport, Local Government and the Regions. During two recent parliamentary debates on health and safety at work and workplace fatalities, he described the proposed offence of corporate killing as: "Providing a clearer avenue for securing successful prosecutions against undertakings whose standards have fallen far below what could reasonably be expected."
During the debate on health and safety at work, Andrew Dismore, Labour MP for Hendon, revealed that in response to questions he had tabled in June and November 2001, he had been told that the legislation would be introduced as soon as possible.
The question therefore arises as to why the proposals have not been taken forward, despite the proposals receiving widespread support - only one of the bodies consulted was against - and the government having made a manifesto commitment to introduce the new legislation.
The current situation has been widely criticised. Following the collapse of the corporate manslaughter case against Great Western Trains resulting from the Southall train crash, leading counsel for the prosecution suggested that the criminal law was "guilty of failing to keep pace with the changing face of corporate life in the last part of the 20th century".
Indeed, there is a general perception that where a company has caused a death, it and its directors should be punished. By way of example, the relatives of four men killed when carrying out repairs to the Avonmouth Bridge commented on Health and Safety at Work Act (HSWA) [1974] fines of £500,000 on each of the companies involved,
"Considering the gross and appalling failures of the companies and the assets of the companies, we do not feel this fine will have the deterrent effect necessary to force companies to ensure that safety is paramount... and that such an accident could not happen again.
"We have suffered terribly as a result of their failings and we will continue to do so for the rest of our lives. Company directors should be held responsible for workers' deaths in such circumstances."
Many similar comments have been made following other accidents.
Institutional support for change
The public perception seems to be shared by the Director of Public Prosecutions, the H&SE and the TUC, which all commented on the inadequacy of the law following the failure of a manslaughter prosecution against Euromin. The case was brought against Euromin and its managing director following the death of Simon Jones. It was this case that prompted the parliamentary debate on workplace fatalities.
Despite the `not guilty' verdict, the indirect effect of this case is likely to be significant. Such were the feelings generated that, in addition to prompting parliamentary debates, a dedicated Simon Jones pressure group was formed. The TUC recently announced that it would work with the group and the Centre of Corporate Accountability to actively lobby ministers to introduce corporate killing.
In addition, in legal terms, the case was important as it illustrated that the identification principle is still valid. To convict a company of manslaughter, it is necessary to convict an individual directing mind. It also reinforced the view that juries remain cautious of finding one or two individuals guilty when, in reality, most major fatal incidents are multi-causal.
Danial McShea is a partner at Kennedys Solicitors
