WHEN manslaughter charges against former Railtrack bosses over the Hatfield rail crash were dropped last week on the ground of a lack of evidence, the complex issue of corporate killing was instantly re-ignited.

Like so many corporate manslaughter cases before it, efforts to prosecute individual board members using the existing health and safety legislation came to nothing for the families of the four people killed at Hatfield in October 2000. Trade unions responded to the news by calling for the law to be changed to make it easier to prosecute company bosses.

Because of the inadequacies of the legislation there have been just three successful prosecutions to date for corporate manslaughter from countless cases brought to court.

The concept of making company directors personally responsible for deaths due to management failings has been at the forefront of legal debate since the Zeebrugge and Hillsborough tragedies in the 1980s. The Government pledged in its 1997 election manifesto that it would legislate to introduce corporate manslaughter laws, but the legal profession, along with company directors and the families of the Hatfield victims, are still awaiting the draft Bill. The signs are that they will not have to wait much longer.

Most recently, Frank Doran, Labour MP for Aberdeen Central, brought a Private Member’s Bill to create an offence of corporate killing. Following this, the Government has given assurances that it will present its draft Bill within this session. There are even suggestions that this will happen before the Labour Party conference.

Although the imminent presentation of a draft Bill is likely to be welcomed by trade unionists and lawyers for the Hatfield families, the content of the Bill is likely to create more debate. One big stumbling block delaying a corporate manslaughter Bill is Crown immunity to the proposed legislation. Despite a more general trend to remove Crown immunity, the latest indications from the Government and from the Department for Work and Pensions Select Committee are that the Crown will retain its immunity and will not be open to prosecution, so although private companies will be liable for prosecution government bodies will be exempt.

The other issue holding up the publication of a draft Bill is the sheer complexity of the subject. Although there is a common acceptance that companies should be held responsible for deaths caused by corporate failings and that the present laws do not provide for this, the issue of how to prosecute and who should be held responsible is highly contentious. The central issue is whether you can prosecute individuals at a company and, if so, how to decide who is personally responsible. Who, as in the case of the Hatfield rail crash, is ultimately responsible?

The idea was mooted of creating a nominated individual at the company who would be named as having ultimate responsibility and who could be prosecuted and ultimately jailed if found guilty. Though lawyers who work for the families of corporate killing victims supported this as a clear means of making health and safety a priority for companies, the latest indications are that the draft Bill will not engender personal liability of directors. Opponents of personal liability argued that it would not be feasible in practice to choose between one director and another to accept responsibility, and would prompt a rush in the boardroom to find a scapegoat, leading directors to seek to protect themselves rather than strive to improve health and safety.

The alternative, and increasingly likely scenario, is for companies rather than individual board directors to be held responsible, and, as you cannot put a company in jail, imposing heavy fines is likely to be the punishment meted out. The problem with this is clearly that fines are much less persuasive as a means of pushing companies to improve health and safety than the prospect of personal prosecution.

The Department for Work and Pensions Select Committee has recently advised that higher fines and imaginative penalties would be appropriate, though whether the Government will accept an element of personal liability that stops short of jail but perhaps involves community service for board members of companies found guilty of corporate manslaughter remains to be seen.

If, as expected, the draft Bill fails to engender personal liability for company directors, I do not believe that this will lead to health and safety moving up the corporate agenda, nor do I believe that this will be a legal tool that will prevent tragedies such as the Hatfield rail crash.

The author is a partner at the national trade union law firm Morrish & Co

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