Bad company

by David Leckie, Aisha Anwar

Discussion of whether, following publication of the draft Corporate Manslaughter Bill, legislation on either side of the border will serve any real purpose

The Journal, May 2005, page 18

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Finally, after years of consultation, discussion, pledges and general procrastination, the draft Corporate Manslaughter Bill was published by the Government on 23 March 2005, just in time for the election. The bill, a version of which was first proposed by the Law Commission in 1996, applies only to England and Wales, although the Scottish Executive is considering something similar.

Under the bill, an organisation will be guilty of the new offence of corporate manslaughter if the way in which any of its activities are managed or organised by its senior managers causes a person’s death through a gross breach of a duty of care. The maximum penalty is an unlimited fine. Corporations, as well as most Crown bodies, can be prosecuted under the new law. The bill does not apply to unincorporated bodies. Individuals, including directors, officers or managers, cannot be prosecuted for corporate manslaughter, so there are no sentences of imprisonment – much to the consternation of certain campaigners and unions.

A “senior manager” is defined as someone who plays a significant role either in the making of decisions about how the organisation’s activities are managed or in the actual management of those activities. A breach of a duty of care will be “gross” if the conduct which led to it falls far below what could reasonably be expected of the organisation in the circumstances. This will be a question of fact for the jury to decide. In doing so, the jury must consider whether the organisation failed to comply with any relevant health and safety legislation or guidance. If there was such a failure, then the jury must consider its seriousness and whether the senior managers:

• knew or ought to have known that the organisation was failing to comply with such legislation or guidance;
• were aware or ought to have been aware that this posed a risk of death or serious injury; and
• sought to cause the organisation to profit from that failure.

Directing minds

Just days after the publication of the bill, Cathy Jamieson, the Justice Minister, announced that the promised consultation on introducing a similar offence in Scotland would not take place but that instead an “expert working group” would be set up which would consider the issue and report back to her. The expert group has a tough task ahead, as this is a controversial area of law which is long overdue an overhaul, as we have seen in the case of HMA v Transco and in numerous high profile failed prosecutions in England, most notably the recent collapse of the trial of Barrow Borough Council and one of its managers for seven counts of manslaughter.

The case of HMA v Transco made legal history in 2002 by becoming the first prosecution of a corporation for culpable homicide in Scotland. The case followed the tragic death of a family of four following an explosion in their home. The Crown indicted Transco for culpable homicide and a charge under the Health and Safety at Work Act 1974 (HSWA), and alleged that Transco had shown a complete and utter disregard for the safety of the public through the actions of a number of Transco engineering and other management committees. This was an attempt by the Crown to develop the common law by establishing guilt by a principle of aggregation.

Transco argued that the charge was irrelevant, as it failed to identify the directing mind of Transco. On 3 June 2003, the appeal court ruled in favour of Transco. The court made it clear that that the common law of Scotland and England in this area was no different – to prove the charge the Crown had to name an individual who could be said to be the directing mind of the defendant company. The court went on to make it clear that:

“If, however, Parliament considers that a corporate body, in circumstances such as the present, should be subjected, not only to potentially unlimited financial penalties, but also to the opprobrium attaching to a conviction for culpable homicide, then it must legislate.”

The trial of Transco in respect of the remaining charge under the HSWA is ongoing at present in the High Court in Edinburgh.

Pointing the finger

Indeed, the only cases in which prosecutions for corporate manslaughter have succeeded have been in England in cases involving very small companies where it is possible to identify a directing mind. In November 1994 OLL Ltd became the first company in English legal history to be convicted successfully of manslaughter. Peter Kite also became the first director to be given a custodial sentence (of two years). This case involved the death of four students in a canoeing accident in Lyme Regis. Mr Kite was one of only two directors of the company. He had the primary responsibility for devising, instituting, enforcing and maintaining the safety policy. It was thus far easier to establish that he failed in his responsibility and that his failure was a substantial cause of the deaths.

The difficulties encountered by prosecutors as a result of the identification doctrine have recently been highlighted in the manslaughter prosecutions following the Hatfield rail crash and the legionnaire’s outbreak in Barrow. The Hatfield trial is ongoing at present at the Old Bailey. Manslaughter and health and safety prosecutions were brought against Railtrack, Balfour Beatty and 12 of their directors, former directors, managers and others. The manslaughter charges against Railtrack have already failed and it is widely predicted that the manslaughter charges for the remaining defendants will also fail. In the trial of Barrow Borough Council and one of its design services managers at Preston Crown Court, following the deaths of seven members of the public from legionnaire’s disease, the manslaughter charges against the council were thrown out following a no case to answer submission and the jury failed to reach a verdict on seven counts of manslaughter against the individual manager, although the Crown has sought a retrial.

Penalties in place

So, what is the point of the Corporate Manslaughter Bill and should the expert working group conclude that the law of Scotland should be changed to follow the English model? Whilst cases such as Transco, Hatfield and Barrow have made it clear that the existing common law of corporate culpable homicide (and manslaughter in England) is wholly inadequate, it is wrong to suggest that the same applies to the provisions of the HSWA. Indeed, many argue that the existing provisions of the HSWA are sufficient, if properly enforced. The provisions of the HSWA are versatile and have withstood the test of time. Furthermore, the maximum sentencing powers, namely an unlimited fine, are exactly the same as those proposed under the bill. The fine of £900,000 imposed on Shell at Stonehaven Sheriff Court on 27 April 2005, following a double fatality on the Brent Bravo platform on 11 September 2003, provides the clearest evidence that the courts in Scotland are prepared to fine heavily where appropriate. Another example is the total fine of £1 million imposed on BP at Falkirk Sheriff Court on 18 January 2002, for breaches of the HSWA, following two incidents at BP’s Grangemouth refinery in June 2000. According to Health and Safety Executive statistics, fines last year increased by 58% and a new record fine of £2 million, with costs of £75,000, was imposed on Thames Trains at the Old Bailey last year, following the Ladbroke Grove rail crash which killed 31 people and injured over 400.

In addition, section 37 of HSWA enables the Crown to take action against individual directors, managers and officers where a failure can be attributed to their neglect, consent or connivance. Employees can be prosecuted under section 7 of the HSWA if they have not taken reasonable care for the health and safety of themselves or other persons affected by their acts or omissions or where they have not co-operated with their employers in health and safety matters.

The range of individuals and organisations who have been prosecuted under the provisions of HSWA includes architects, safety consultants, teachers, local authorities, companies of all sizes and even the Environment Agency and two former Metropolitan Police Commissioners.

Losing face, saving face

This leaves only the question of stigma. There is no doubt that a conviction for some form of statutory homicide will be a PR disaster for any company convicted of such an offence and it will attract a stigma which far outweighs a similar conviction under the HSWA. However, whether the prospect of such stigma will act as any form of deterrent or make the workplace a safer place is highly questionable.

As the expert working group in Scotland considers this complex area of law, only two things are certain. First, the existing common law of corporate culpable homicide/manslaughter in health and safety cases is wholly inadequate and should not be used by prosecutors. The unedifying spectacle of a litany of embarrassing high profile failed prosecutions, including the Herald of Free Enterprise, Great Western Trains, Transco and Barrow, not to mention the waste of public funds, must stop. Either the common law should be replaced with a statutory regime which is clear and enforceable or prosecutors and judges should make do with the existing provisions of the HSWA and ensure that these provisions are properly enforced in a consistent manner. Secondly, it is vital, as a matter of public policy, in this important area involving fatalities, that the laws of Scotland and England are identical, particularly given the fact that the HSWA is identical across the UK and was reserved to Westminster under the Scotland Act. It would clearly be absurd if those responsible for a train crash which occurred in Scotland were prosecuted differently to those responsible had the crash occurred south of the border.

David Leckie and Aisha Anwar, Maclay Murray and Spens

e: David.leckie@mms.co.uk; Aisha.anwar@mms.co.uk

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