EHJ May 2005, pages 8-11

Public concern that current laws relating to corporate manslaughter are failing to provide an effective sanction prompted the government to publish its draft bill in March. But as Nick Warburton reports, will the new offence be an effective deterrent against those that neglect health and safety?

Simon Jones' parents campaigned tirelessly for years to successfully prosecute the company responsible for their son's death. Simon was only 24 years old when he was killed in horrific circumstances on 24 April 1998. Sent to work as a casual worker at Shoreham dock, Simon was unloading cargo inside a ship when he was killed on his first day. Within two hours of arriving on the site, and with no training on one of the most dangerous jobs in the country, Simon's head was crushed by the grab of an excavator, which was being used instead of a safer lifting eye. Personnel Selection, the employment agency through which he got the job, should by law have checked it was safe, but didn't.

The family's heartache didn't end there. Determined to bring manslaughter charges against Euromin, the company Simon was working for, the family was forced to seek a judicial review in September 1999 after the Crown Prosecution Service refused to prosecute the company and its general manager Richard Martell. On 19 December 2000, more than two and a half years after Simon's death, and following strongly worded instructions from two judges to review its decision, the CPS finally relented. When the case was finally heard almost a year later, the jury cleared Mr Martell of manslaughter. The company was found guilty of two crimes relating to health and safety that led directly to Simon's death but was only fined a paltry £50,000.

The Euromin prosecution, and more high profile cases like the Marchioness Thames river disaster and the Southall rail crash, have raised public concerns that the current law is not an effective sanction against companies and organisations that neglect the health and safety of employees and others.

In March, the home secretary, Charles Clarke, vowed to set out tough new laws to build public confidence in the system. In updating existing laws in this area, the bill proposes a new criminal offence of corporate manslaughter for England and Wales, which will apply when someone has been killed as a result of a very serious management failure on the part of an organisation.

Though the proposed offence is unlikely to increase the number of new cases brought by local authorities, Dr Nick Clack, policy officer, health and safety at Lacors, says there will be implications for EHPs in terms of liaison work with the police and gathering evidence for investigations. Currently, a protocol for liaison exists between the CPS, the police and either/or the Health and Safety Executive and local authorities (depending on the enforcement sector) for investigating work-related deaths.

As the new offence is linked to existing health and safety legislation (the Health and Safety at Work Act etc 1974 still applies and can be used in cases where an individual director can be identified easily), the police will need to consult with local authorities where there have been major health and safety failings in the company charged. "Liaison will be crucial," says Dr Clack. "As investigations will need to be fuller than is currently the case, local authorities will need to collect more evidence to support the prosecution."

The proposal breaks new ground because it tackles an underlying flaw in the current law - the need to show that a single individual at the top of a company is personally guilty of manslaughter before the company can be prosecuted.

As the current legal test stands, a company can only be prosecuted if there is sufficient evidence to prosecute an individual director or senior manager (a "controlling mind" of the company) for manslaughter, and this requires evidence of gross negligence. In other words, a company can only be prosecuted if there is sufficient evidence to be able to prosecute that person. If this evidence is lacking, the company will escape prosecution. Assuming a prosecution takes place, a company will only be found guilty of manslaughter if the individual is convicted.

David Bergman, director of the Centre for Corporate Accountability, argues that there is an inherent flaw in this test. He says that because the guilt of a company is entirely dependent upon the guilt of an individual director or senior manager, large companies, which delegate safety decisions to managers low down the hierarchy, can escape prosecution even though there may be serious management failures in the company that caused the fatality. He also argues that the law does not impose a positive duty upon company directors to take action to ensure that their company complies with health and safety law.

Under the proposal, courts will be able to consider a wide range of management conduct. Rather than limiting investigations to questions of individual gross negligence by company bosses, the new offence focuses responsibility on the working practices of the organisation, as set by senior managers. In effect, this means that the criminal liability of individual directors will not be affected. Home secretary, Mr Clarke, has made it clear: "Corporate manslaughter is an offence committed by organisations rather than individuals and will therefore carry a penalty of an unlimited fine rather than a custodial sentence."

Janet Asherson, head of health and safety at the CBI, welcomes the distinction but is wary of any changes in the proposals, which could make company directors liable. "Directors have general responsibilities and duties of care but the CBI is concerned that a charge of corporate manslaughter should reflect just that - the failings of the corporate system and not just an individual. Good health and safety performance requires the involvement of everyone in an organisation."

Campaign groups don't entirely agree with this view. "If it's a director that's made the decision about the way in which health and safety in the company has gone, which has resulted in the way an accident has occurred, then it should be down to the individual," argues Tom Mellish, health and safety policy officer at the Trade Union Congress. "But there may be structural problems within the organisation, where health and safety is not taken as an integral part of the management of the organisation. That is a corporate issue."

Wherever the blame lies, it's clear the law is not consistent in the way it metes out punishments. Julie Barratt, CIEH director for Wales and a trained barrister, agrees with the home secretary's distinction but sees a problem in the way different size companies and organisations could be sentenced. "The fact that someone left a nut and bolt off an oil rig is so far removed from the contemplation of a director having a corporate lunch in London, that to make it his responsibility would be ludicrous and nobody would take these posts if they did," she argues. "That having been said, it still leaves this difficulty that if you are a 'one-man band' you can go to prison but if you are a big corporation, you'll only ever be fined."

Prosecution cases listed on the CCA's website show that only two large companies have ever been prosecuted for manslaughter - P&O European Ferries for the Herald of Free Enterprise disaster and Great Western Trains for the Southall train crash - but in both instances the cases collapsed. In fact, according to the CCA, there have only been seven successful prosecutions, all of which have been against small companies. Only 11 company directors have been successfully prosecuted and only four business owners (see box).

While Simon Jones' mother, Anne, says the family welcomes the long-awaited draft bill, she admits they have been "pretty disgusted at how much it has been emasculated". She says there a number of areas where she feels there are significant flaws.

One is the bill's definition of when a company or organisation would be guilty of the new offence. She argues that defining it as the way in which senior managers managed or organised the company or organisation's activities, and the fact that this caused a person's death and was a gross breach of duty of care, shows the government recognises it is the board of directors or senior management that is responsible for a company or organisation's behaviour and any acts of negligence. Yet, despite this recognition, it is still only the company or organisation that can be held accountable and not the people for its activities. "This would be like prosecuting a company for fraud but not placing any sanctions on the directors who carried out the fraud," she argues.

Home secretary, Mr Clarke, has made it clear that the proposals aim to strike a balance between a more effective offence and legislation that would unnecessarily impose a burden on business. But Mrs Jones is not convinced. "At no point does he consider how the failure to legislate more effectively imposes an unnecessary burden on their victims, their families and the taxpayer who picks up the tab for the emergency services, any investigation and court case, NHS treatment for the traumatised family and benefits for those so traumatised that they cannot work again."

Another issue of contention is an additional test that has been introduced to establish the extent of negligence. This says that a jury must consider whether or not senior managers "sought to cause the organisation to profit from that failure." Mr Bergman argues that this evidence is extremely difficult to obtain and its absence will be used by organisations to show that their conduct was not grossly negligent. But he also says that the new test should not be a factor that determines whether an organisation has acted for profit or not. "Organisations sometimes simply don't care and have no explicit profit motive," he says.

One of the bill's other proposals is that the courts can order an organisation that has been convicted of corporate manslaughter to take specific steps to remedy the breach of care, which led to the death. Failure to comply with a remedial order will result in an unlimited fine in the Crown court and a maximum of £20,000 in a magistrates'.

While it's as yet unclear how this will tie in with work carried out by local authorities, for instance in issuing improvement notices, Dr Clack says there is a potential for duplication, which will need to be avoided. Liaison with the CPS will be essential, he adds, to avoid unnecessary regulatory burdens being imposed on companies.

But it isn't just corporations and organisations that fall under the radar. Margaret Lockwood Croft, director of the Marchioness Action Group, which represents victims of the Marchioness River disaster, argues the offence should apply to all Crown activities. Under the proposals, some activities will be excluded (see box). "At the end of the day, the Crown is the servant of the public. We do not see that any public servants should be exempt if they could be the perpetrator of the death of someone."

As EHJ goes to press, the looming election has thrown uncertainty on the bill's future. Should Labour win a third term, Mr Bergman says the government will need to decide when to bring it before parliament for debate. If the Tories get in, there's a good chance that the bill will not be debated further.

Consultation continues and interested parties have until 17 June to respond to the bill's proposals. While Mr Bergman says the bill needs a lot of scrutiny and particular meanings need to be "nailed down", there are some glaring issues, which he would like resolved. "We would like to see a removal of the restrictions on when crown bodies could be prosecuted as we are not sure these have been sufficiently justified," he argues.

For the CBI, there needs to clarification on who will be regarded as senior management and held responsible. "The bill does not make it sufficiently clear what level of senior management failure is intended to be targeted and there is a concern that the lack of specificity could mean that this may not be applied consistently in an attempt to get a conviction," argues Ms Asherson.

The question remains, however, whether the bill is workable in its current form. Louise Christian, the lawyer who represented the Jones family, is not convinced. "The restrictions even on the offence to be prosecuted against companies makes it very unlikely that there's going to be more than one prosecution every blue moon," she argues.

For Mrs Jones, the proposed bill also doesn't go far enough. "The problem with this new offence is that it doesn't target senior management. People are still being killed because companies cut corners with health and safety. More burdens need to be placed on management to the point where health and safety systems are so tight that no one takes any chances."

Draft bill: www.homeoffice.gov.uk/docs4/con_corp_mans.html

The CCA and TUC are holding a conference on the draft bill on 13 June:

www.corporateaccountability.org/conference/jun05ldn.htm

As for the remainder of the act, most of it will come into force next April, except for parts of the changes on litter enforcement, flyposting and fly tipping (see above table) which will come into force this June. Guidance is expected imminently where maximum and minimum fixed penalty notices are expected. The LGA has called for fines to be reviewed after a year

The Clean Neighbourhoods and Environment Act is available at

www.legislation.hmso.gov.uk/acts/acts2005/20050016.htm