Globally, more people are killed each year at work than are killed in wars.
How the law responds is important, and the UK’s new Corporate Manslaughter
and Corporate Homicide Act is a significant improvement on earlier
legislation.
The legislation makes it easier to convict culpable organisations. But the new
law has not lowered the threshold of guilt: it criminalises only an
organisation whose gross negligence has resulted in death. Companies that
have good safety policies have nothing to fear from the new Act, even if
someone dies in an awful accident. It does not penalise any blameless
company - only those that can be shown beyond reasonable doubt to have been
homicidally reckless about risk.
The Act is one of the most significant legislative changes to corporate
responsibilities since the principles of the modern company were
crystallised in a case in 1373. The new law will apply not just to the UK’s
2.3 million companies but to partnerships, other employers like trade
unions, and to some non-commercial organisations. After much debate in
Parliament, the new law will now also be applicable if the death of someone
in custody resulted from gross negligence in the prison service or from
those controlling police cells.
The Act arose from a recognition that the common law principles of
manslaughter (which had been developed to deal with individuals) were
ill-suited to the prosecution of companies, such as train companies or
construction companies, whose recklessness had been implicated in many
deaths. For a conviction, it had to be proved that all the required gross
negligence could be found in at least one senior company officer or
director. So, precisely by having diffused management systems and bad
internal communications, a company was able to escape responsibility for
deaths it had caused. People asked why, if individuals (including all sorts
of people doing lawful things badly like doctors and drivers) are convicted
for reckless killing, companies are not?
In the UK, over 40,000 people have been killed in commercially-related
circumstances between 1966 and 2006 but under the old common law of
manslaughter, only 34 companies were prosecuted for homicide and only seven
resulted in convictions. In the UK about 400 people (employees,
self-employed people, and members of the public) are killed in incidents
through the operation of commerce each year. Long term deaths bring the
figure much higher. These include circumstances where a company has been
responsible for causing the contracting of a condition (such as asbestosis
or mesothelioma) whose development takes many years to cause death. Another
field of substantial commercial carnage is the road network - commercially
caused deaths on the roads are estimated to reach up to 1,000 each year.
Public anxiety at commercial recklessness was heightened by a number of major
cases such as the Southall rail crash. On September 19, 1997, a high-speed
train travelling from Swansea to London was racing at 125mph about 10
minutes from Paddington when it passed a red signal. Soon afterwards it
collided with a freight train. Seven people were killed and 151 inured.
About £10 million worth of damage was caused by the incident. The passenger
train was operated by GWT, a company with an annual turnover of £300 million
at the time. The train was being operated with its automatic warning system
switched off because it did not work, and the automatic train protection
system was also inoperative. There was no second driver in the cab. Those
were not just individual mistakes; they were part of a systemic failure of
safety management. A prosecution of the company for manslaughter (using the
old common law crime of manslaughter) failed, as had one in 1990 against P &
O Ferries (Dover) after the Herald of Free Enterprise capsized, killing 192
people. In both cases there were difficulties in finding one senior person
in the company who knew enough to incriminate him.
Then came the Paddington crash. In 1999, a Thames Trains service went through
a red light at signal shortly after leaving Paddington station. It hit a
First Great Western train at Ladbroke Grove, in west London, killing 31
people. Over 400 people were injured. In March 2007, Network Rail (which
replaced Railtrack in 2002) was fined £4 million for the breaches in health
and safety that led to the disaster. The court heard of a “catalogue of
failures to act" by Railtrack that led to the disaster.
The new legislation creates a dedicated offence to cover companies that kill.
The new offence is called “corporate manslaughter” in England and Wales and
Northern Ireland and “corporate homicide” in Scotland. In essence, the crime
is committed where an organisation owes a duty to take reasonable care for a
person's safety, but the way in which its activities have been managed or
organised amounts to a gross breach of that duty and causes death. To
convict a company, though, the prosecution must prove that the failure came
substantially from “senior management”. Senior managers are defined as
people who play a significant role in the management of the whole or a
substantial part of the organisation's activities.
The management failure must amount to a “gross breach” of the duty of care.
The new law asks whether the conduct falls far below what could reasonably
have been expected of the organisation in the circumstances. There are a
number of factors for the jury to take into account when considering this
issue. In deciding whether there has been a gross breach of duty, the jury
must consider whether the organisation failed to comply with any relevant
health and safety legislation. If it did, the jury must consider how serious
that failure was, and how much of a risk of death it posed. The Act says the
jury may also consider whether the evidence shows that there were
“attitudes, policies, systems or accepted practices within the organisation”
that were likely to have lead to safety failures. So the assessment of a
defendant’s corporate culture can be legally relevant.
One danger is that the new “senior manager” test could encourage companies to
delegate health and safety responsibilities to non-senior managers so as to
protect the company from criminal liability. Such irresponsibility, though,
might in itself amount to gross negligence about safety. The best way for a
company now to act responsibly and legally is for it to appoint someone at
senior level responsible for corporate heath and safety. If they act
reasonably and responsibly then, even if some terrible disaster occurred,
neither they nor their company will be prosecutable for manslaughter. It is
as simple as that. The Act makes it plain that there is no liability where
the management of an activity includes reasonable safeguards and a death
nonetheless occurs.
The sanctions include a fine (with no statutory maximum) and remedial orders.
This will allow the courts to order an organisation convicted of the new
offence to take steps to remedy the management failure leading to death. It
is also possible for the court to impose a “publicity order” requiring the
convicted organisation to publicise the details of its conviction and the
amount of any fine.
It was clearly time for new law. Today, of those deaths and injuries at that
result in prosecutions, most are taken to court only as offences under
health and safety legislation. That means that even though someone has been
killed or maimed by commercial recklessness, the only offence on the public
record is one that does not disclose that part of the story. The record just
says that a company was guilty of failing to provide a safe system of work
(without reference to what might be multiple deaths and injuries).
In its Regulatory Impact Assessment for the legislation, the Government
estimated that the new offence would result in only 10-13 additional
prosecutions for corporate manslaughter each year. There is, though, no good
number of prosecutions for corporate manslaughter. The silent aim of the law
is to stop corporate manslaughter. So the hope should be that the new law
produces no convictions. A good law is one which is so clear, sensible,
publicly supported and conscientiously policed that all potential violators
behave well and avoid its teeth.
Gary Slapper is Professor of Law, and Director of the Centre for Law, at
the Open University
