In the Media

The bitterest bill

PUBLISHED July 11, 2007

The Corporate Homicide Bill has promised to bring about change in relation to managers' and directors' accountability for health and safety issues

In March this year a ?4m fine was handed to Network Rail following the 1999 Ladbroke Grove train disaster in which 31 people died and more than 400 were injured. This fine was for breach of the Health & Safety at Work Act 1974. Despite pressure from some lobby groups, no individuals or companies were ever charged with manslaughter following this tragic accident.

Under the existing law it is only possible to prosecute a company for manslaughter in the context of involuntary manslaughter, by means of gross negligence. Before a company can be convicted of manslaughter, however, the prosecution must show that there was a causal link between a grossly negligent act, or an omission, by a person who was the 'controlling mind' of the company and the immediate cause of death. In short, unless the person who is the controlling mind is convicted of manslaughter, then the company cannot be convicted.

The controlling mind is usually a director or a senior officer, and one of the main problems facing the prosecutor is establishing that it was their gross negligence that caused the death. This is particularly the case with bigger companies, where it becomes more difficult to prove that it is the controlling mind that has been grossly negligent, as opposed to some other person or persons within the company. It is not possible to aggregate the negligence of individuals to arrive at gross negligence, even if each is a controlling mind.

Identifying the controlling mindIt is not surprising that, of seven corporate manslaughter convictions to date, all have been against small companies where there has been little difficulty in proving the link between the director's or manager's act or omission and the resulting fatality.

It is intended that the long-awaited Corporate Manslaughter and Corporate Homicide Bill will remove this inherent problem. It will no longer be necessary to identify a single controlling mind. Instead the offence is committed if a person's death is caused by the way in which the company's activities are managed or organised by senior management and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. Senior management is defined as those people who either organise or manage the business, or who play a significant role in making decisions on these issues.

This still leaves the prosecution with the hurdle of proving the conduct of senior management was an essential causal factor of any incident, and in the case of larger companies it may still be difficult to trace that conduct back to a sufficiently senior level.

The sentenceThe bill will not replace the law of manslaughter as it applies to individuals, nor will it introduce an offence for an individual of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter.

More importantly is what the bill means when it comes to sentencing the guilty company. It will not mean that directors or senior officers of a company convicted of corporate manslaughter will face jail, but that the company will have the stigma of a corporate manslaughter conviction, which will undoubtedly affect its public image and value. The sanction against it remains an unlimited fine - the same sentence available to the courts today under the Health & Safety at Work Act - although it remains to be seen whether the levels of fine that are handed down will increase.

In the case of Ladbroke Grove, one suspects that this will surprise and possibly anger the public, as one of the major concerns was the lack of accountability that companies appeared to have. It is not possible to jail a company, but many hoped that the bill would enable those running the company to receive punishment. Those directors and managers could still justifiably be prosecuted in their own right for common law manslaughter if their deeds warranted it, but they will not be held accountable simply because the company they help to run is found guilty.

Additional powerOne additional power that the court will have is to order the company to take steps to remedy its breach, although in practice it would be surprising if a company had not addressed those issues well before the case ever came to court.

The bill has had its third reading in the House of Lords and is currently ping-ponging its way between the two houses on the key issue of whether, and if so when, the bill will apply to those held in custody. The Government is reluctant to allow this and wishes to maintain the right to decide when the bill should come into force for those in custody. This has proved to be a major sticking point and it is difficult to predict when this issue will finally be resolved; however, if Parliament does not move quickly, there is a real risk that the bill may fail due to lack of time.

The passage of the bill must be completed within 12 months of it being represented to Parliament on 16 November 2006. As the bill has already been carried over from the previous session of Parliament, it will be necessary to start the process from scratch, which would lead to significant further delays, especially if a 2008 election is on the cards.

What cannot be doubted is the interest this bill has generated at board level in companies where health and safety issues previously rarely filtered upwards beyond the level of the health and safety manager.

While corporate manslaughter may grab the headlines, the bill will only apply to a relatively small number of serious cases. However, if it causes health and safety to find its way onto the agenda at board meetings it will have achieved part of its purpose, as this topic can too often be seen by employers and employees as a burden rather than a benefit.