14 January 2008

When the Herald of Free Enterprise capsized in 1987, the coroner's verdict was unlawful killing. But despite evidence that the ferry crew had warned the management about the dangers of leaving port with the bow doors open, no one was prosecuted. For video summaries of the incident, click here.

Many other disasters followed: the King's Cross fire (1987); Piper Alpha (1988); the sinking of the Marchioness (1989); the rail crashes at Clapham (1988); Southall (1997); Paddington (1999); Ladbroke Grove (1999); Hatfield (2000); and Potters Bar (2002).

After each of these major incidents there were demands that "someone should pay". But existing legislation meant prosecutors would have had to find an organisation's "controlling mind" guilty of gross negligence, which is notoriously difficult to do in all but the smallest firms.

The Corporate Manslaughter and Corporate Homicide Act (2007, c. 19) will take effect on 6 April, allowing the possibility that organisations might be prosecuted for similar disasters in the future. Corporate homicide refers to the offence as it will be known in Scotland; manslaughter will be used in the remainder of the UK. For ease of reading I'll refer only to corporate manslaughter (with apologies to those north of the border).

All change

A summary of relevant accidents and the legal considerations at the time can be found in a PowerPoint presentation on the website of the South West branch of IOSH. Start at www.ioshsouthwest.co.uk/documents and scroll down to select "legalupdate.ppt".

The Crown Prosecution Service gives advice on who can be prosecuted under the existing legislation; at the time of writing this had not been updated with advice on the impending legislation. From www.cps.gov.uk, choose "professionals", "legal guidance", "offences against the person" then "corporate manslaughter".

The full text of the new Act is available by clicking here - you'll also find all Acts published in 2007 in alphabetical order. Much of the first few pages outlines who is and isn't liable for a "duty of care". Section 8, "factors for jury", explains that the jury is charged to consider "attitudes, policies, systems or accepted practices within the organisation" and also health and safety guidance. This makes it clear that it is not just about following the letter of the law, but going beyond this to look at the safety culture in an organisation.

The Royal Society for the Prevention of Accidents (RoSPA) website provides a good summary of why the new corporate manslaughter law is needed. From www.rospa.com select "occupational" from "safety areas" and find "involuntary manslaughter" in the "occupational safety" topics list on the left.

The first link summarises the importance and likely impact of the new law. In particular, it explains the difficulty there has been in convicting larger firms under the existing legislation, where it is harder to show an individual controlling mind. Dated 2001, the pdf Corporate Killing: Where Are We Now? provides examples of successful and unsuccessful prosecutions of individual directors under the existing law.

Information on the passage of the legislation can be found on the Home Office website. Use the "advanced search" function with "corporate manslaughter" as the keywords, and limit the search to the Home Office website. The first link (dated 20 July 2006) will take you to a page covering the Corporate Manslaughter and Corporate Homicide Bill. The regulatory impact assessment of the Corporate Manslaughter Act makes interesting reading, including a cost-benefit assessment which makes it clear that any organisation meeting the requirements of current health and safety legislation should not incur significant extra costs to avoid prosecution under the new law.

The HSE has added a new "health and safety topic" called "corporate manslaughter" to its website. As well as answering some frequently asked where, when, how and who questions about the Act, the topic provides links to the legislation and to HSE guidance on investigating work-related deaths.
If you have an opinion on what sort of fines and sanctions should be imposed on organisations convicted of corporate manslaughter, see the consultation paper on sentencing - responses have to be in by 7 February.

In the prints

The online law magazine Consilio provides a useful (if hard on the eyes) summary of the new law, including a discussion of which activities are included, and importantly those activities that are not covered, raising concerns that organisations might still use lack of resources or skills as a defence. An article by Professor Patricia Leighton concludes with a summary of the potential consequences for companies and individuals in companies where there has been a work-related death.

The Times newspaper's site has a detailed article by a Professor of Law from the Open University. One interesting response to this article from a reader is a proposal to make the top 10 earners in a business directly responsible for injuries or deaths resulting from gross negligence.

The Guardian picks up on the delay to the deaths-in-custody part of the Act with an example of the death of a young offender at the hands of another inmate. As the provisions in this area are not expected to come into force for another three years, it will be some time before we see if they have any effect. Click here for the article.

There seems to be a gap in the BBC news log, with the failure of the Bill on 17 July being followed by references to it in articles on the Stockline factory explosion case (click here for HSP article) and, more recently, the firefighter deaths in Warwickshire. But it seems to be missing any comment on the passing of the Bill itself. To browse the BBC's selections, click here. The BBC news site is useful if you want to check details of any of the events that contributed to this legislation; for example, search for "Potters Bar".

Industry specific

Advice on the application of the corporate manslaughter law to fleet drivers is easy to find. For example, www.billplant.co.uk/corporate_manslaughter provides a useful summary, with recommendations for risk assessments and training.

Alternatively, try Chiltern Driver Training or less specifically The Driving Lesson Academy

Law firm Eversheds provides specific advice on what the Act may mean for local authorities. From  select "your sector" then "local government" and search through the full list of "latest articles" to find Briefing Note 50/2007.

The Engineering Employers' Federation (EEF) has issued new guidance on the legislation but you will need to register to access it.

The Federation of Small Businesses mentions the passing of the Act in its September 2007 newsletter, but appears to offer no more advice.

The Confederation of British Industry (CBI) does better, although the information is not that easy to find by browsing. Go straight to www.cbi.org.uk/cmcdocs to find details of its corporate manslaughter conference, held in October 2007, including Ministry of Justice information on the Act as well as notes and slides from speakers at the conference. The health and safety "policy mini-site" has a corporate manslaughter link (in the right-hand menu) that takes you to an undated (out-of-date) progress report on the legislation, which concludes that the Bill must receive Royal Assent "before 19 July 2007". There are also links to the CBI's responses to the Bill dating from 2000 and 2005.

Interested parties

Search for "corporate manslaughter" on the TUC website at www.tuc.org.uk and you will find little of use. Search instead for "corporate kill*" (to cover "killing" and "killers") and your search will be more productive. The articles all fall within the health and safety section; I was disappointed that the "law at work" section makes no mention of the Act.

Little recent analysis is to be found on other key union sites. Only on the website of the construction union UCATT could I find any recent comment: the union expresses some disappointment that negligent directors may still escape individual prosecution. Select "UCATT news and press releases" from www.ucatt.info and then choose the news archive for July 2007.

Human rights group Liberty was particularly concerned about the death-in-custody provisions of the Bill. Its responses at each stage of the legislative process are available at www.liberty-human-rights.org.uk under "publications" then "policy papers" and "current Bills".

The Centre for Corporate Accountability provides details of work-related manslaughter cases brought under existing legislation. From www.corporateaccountability.org select "deaths, inquests & prosecutions" and then "manslaughter convictions, acquittals and ongoing prosecutions".

The charity INQUEST provides free advice to the bereaved on the inquest system, and takes a particular interest in contentious inquests. From the homepage at http://inquest.gn.apc.org select "policy" to find details of the organisation's views on corporate manslaughter.

While the media often concentrates on the high-profile multi-death accidents, individuals die at work with little press attention. The charity FACK - Families Against Corporate Killing - represents the views of families who have lost people through work-related accidents. FACK has a section of the Hazards Campaign website at www.hazardscampaign.org.uk/fack This provides links to other interested charities, including the Simon Jones Memorial Campaign at www.simonjones.org.uk, and the American charity United Support & Memorial For Workplace Fatalities at www.usmwf.org

On course

For those who prefer getting information face-to-face there are plenty of legal, training and safety organisations offering briefings on the new legislation. None of these come with any recommendation attached, but the following might provide a useful starting point.

• For an all-day seminar, go to Hawksmere's site at www.hawksmere.co.uk, select "health & safety" and find the "corporate manslaughter" link.
• Eversheds includes corporate manslaughter within its health and safety courses for senior managers. For more details, see the downloadable training brochure at www.eversheds.com/documents/Training_brochure_2007.pdf

If you haven't the time to travel for a briefing and would rather listen to advice than read it then try a podcast (which you can listen to either directly on your PC or by downloading it to your MP3 player). Go to the website of legal firm Maclay Murray & Spens at www.mms.co.uk and choose "MMS Podcasts" from the "knowledge" pull-down menu. The corporate manslaughter podcast is under "commercial litigation and advocacy".

This is worth a listen, as it gives the argument for why the legislation didn't go as far as the unions wanted in making individual directors responsible through negligence.

End of the line

Manslaughter prosecution is the end of the line - something most organisations will never have to deal with. But all organisations have corporate health and safety duties. At www.hse.gov.uk the "health & safety topic" on "corporate responsibility" puts corporate manslaughter into perspective. It outlines some of the key corporate health and safety responsibility issues, and includes some excellent case studies showing the wider business benefits to be gained by tackling health and safety issues in a proactive way. There is also guidance on what health and safety information organisations should provide in their annual reports. From the corporate responsibility area, select "live issues" then "public reporting of health and safety performance" and under the "guidance" heading you will find the link "health and safety in annual reports 2001".

The Corporate Manslaughter Act has been such a long time in the planning, some organisations may not believe it's actually happening. There is a clear need for advice on how employers should conform, and industry representatives and safety organisations should work hard in the next few months to supply this. There is plenty of information on why the previous legislation didn't work, but less on what should happen now.

One of the difficulties in providing advice is that unlike, for example, the Noise Regulations which changed acceptable noise levels at work, or the Asbestos Regulations which require additional inspections, the Corporate Manslaughter and Corporate Homicide Act does not actually change what companies should be doing. It just adds to the possible penalties if they don't do what they should be doing already - and, hopefully speaking, acts as a deterrent to poor safety standards and an incentive for good ones.

Categories:
Safety, Article, Corporate manslaughter