Government to close loophole over ‘controlling mind’

The Government has announced its intention to close the legal loophole that
allows large employers to escape conviction for killing workers.

The law on involuntary or ‘gross negligence’ manslaughter has been made by
judges in such a way that convictions can only be secured where the prosecution
can identify an individual "controlling mind" responsible for
organisational failings that led to the death.

This has proved so difficult, given the complex network of responsibilities
in large organisations, that only three companies – all of them small – have
ever been found guilty.

The Government intends to legislate so it is enough to show deaths were the
result of a "management failure" which constituted conduct falling
"far below" what could reasonably be expected of an undertaking in
the circumstances.

Home secretary David Blunkett said a timetable for the legislation and
results of a regulatory impact assessment would be available by autumn.

Employers’ bodies welcomed the Government’s decision to tone down its original
proposals – particularly those which would have allowed individual directors or
managers to be held personally liable for deaths.

But other commentators have expressed concern about aspects of the
legislation.

David Bergman, director of the Centre for Corporate Accountability,
criticised the Government’s intention to judge the severity of manage-ment
failures by reference to standards in that particular industry – whether or not
those standards were acceptable.

Corporate killing – the proposed law

– Prosecutions could be brought where a management failure had
resulted in one or more deaths and that failure constituted conduct falling far
below what could reasonably be expected of an organisation in those
circumstances

– A management failure means the way in which activities are
managed or organised fails to ensure the health and safety of those employed
in, or affected by, those activities

– Such a failure would be regarded as the underlying cause,
even if the immediate cause (such as missing a red train signal) was down to an
individual

– It would not cover very minor acts or omissions but
"substantial and operating" causes including widespread negligence of
health and safety requirements

– It would not be necessary to show risk of death was obvious

– It should apply to all organisations, not just corporate
bodies

– Action could be taken against parent or other group companies
if it could be shown their management failures were cause of death

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