Disaster area

Despite horrific disasters such as Paddington, Southall, Piper Alpha and the
Herald of Free Enterprise, there have only ever been three convictions for
corporate manslaughter in this country. Francis Kean examines the reasons
behind this and anticipates proposals for new legislation and their
implications for employers

The board of directors did not appreciate their responsibility for the safe
management of the ships. They did not apply their minds to the question, ‘What
orders should be given for the safety of our ships?’ The directors did not have
any proper comprehension of what their duties were.

"From top to bottom the body corporate was infected with the disease of
sloppiness."

This is an extract from the conclusion of Mr Justice Sheen’s inquiry into
the sinking of the Herald of Free Enterprise in March 1987 which led, despite
these criticisms, to an unsuccessful attempt to secure convictions for
manslaughter against P&O Ferries and seven of its officers and employees.

There have only been six prosecutions for corporate manslaughter in this
country. Three have culminated in convictions.

The most recent, earlier this year, resulted in two haulage company
directors receiving suspended sentences after they were found guilty of
ignoring the excessive working hours of their driver. He fell asleep at the
wheel and killed two motorists in a seven-vehicle pile-up on the M25.

So why are there so few successful prosecutions? The problem is that
manslaughter belongs to that group of crimes where, in order to secure a
conviction, the prosecution must prove a mental element. In other words, it is
necessary to show that the defendant in question knew or was grossly negligent
as to the consequences of his, her or its action.

Where the defendant is a company, the requisite knowledge or gross
negligence must be imputed to the company by an individual who is proved to
possess it.

This requirement always seems to focus the attention of the prosecuting authorities
squarely on the directors and other senior officers of a company. This is
because the courts have refused to impute knowledge possessed by the more
junior employees of a company.

Lord Denning said, "A company may in many ways be likened to a human
body. It has a brain and a nerve centre which controls what it does. It also
has hands which hold the tools and act in accordance with directions from the
centre."

It is only knowledge at the "brain and nerve centre" which is
sufficient to bring a successful prosecution against a company for those crimes
including manslaughter which require proof of a mental element.

It is important to recognise that, as the law stands, the requisite
knowledge is not just knowledge or deemed knowledge of failures in internal
procedures, including those relating to safety, but knowledge as to the
potential consequences of those failures. The prosecution must show that
someone within the company was indifferent to an obvious risk of death or
injury to health or actually foresaw the risk but nevertheless was determined
to run it.

It is no coincidence the successful prosecution for corporate manslaughter
following the death of four teenagers taking part in a canoe expedition in Lyme
Bay involved a small company with short lines of responsibility.

In that case, the managing director was shown to have the requisite
knowledge because he received a letter of resignation before the tragedy from
two former instructors at the centre.

The letter said, "Having seen your 1993 brochure and planned
expansions, we think you should have a very careful look at standards of
safety. Otherwise you might find yourselves trying to explain why someone’s son
or daughter will not be coming home."

By contrast, the recent attempt to convict Great Western Trains and at least
one of its senior officers of manslaughter following the Southall rail disaster
ended in failure. This was despite the judge in that case concluding,
"Those who travel on high-speed trains are entitled to expect a higher standard
of care from those who run them. GWT failed to meet that standard and in my
judgment they failed to meet it by a greater extent than they have been
prepared to admit. Their failure was a significant cause of a disaster."

A significant reason for the collapse of the GWT corporate manslaughter case
was although the prosecution was able to identify Richard George, the chief
executive of GWT, as ultimately responsible for safety, they were not able to
show he possessed the relevant knowledge for the purposes of a manslaughter
charge. No such charge was brought against him personally.

The prosecution’s argument that it was possible to aggregate the knowledge
of more than the person in a corporation for the purposes of a manslaughter
charge also failed. The judge in the GWT case concluded this aspect of the case
by saying, "There are many who say that the present state of the law is
unsatisfactory and that the present obstacle to prosecuting large corporations
for manslaughter should be removed.

"However, if the law is to be changed it is up to Parliament to do so.
The Law Commission recommended legislation over three years ago but nothing has
been forthcoming. There is little purpose in the Law Commission making
recommendations if they are allowed to lie for years on a shelf gathering
dust."

More cases to come

Before seeking to anticipate the proposals for new legislation that are to
be contained in a promised new consultation paper, it is worth recording that
even before the furore following the Paddington rail disaster, Railtrack was
facing a prosecution for corporate manslaughter in relation to a separate
incident.

The charges were dropped after the collapse of the GWT case.

In that case, a train driver had been killed while using a telephone at the
trackside. He had been ringing to report a difficulty with the line, as
instructed under health & safety regulations. Railtrack had allegedly been
told some 19 months earlier that the telephone was too near the track.

This case ultimately turns on the question of precisely what was known
concerning this specific risk by those within Railtrack who were legally
responsible for its acts or omissions at the time.

The company was fined a record £150,000 last month. The judge accused
directors of "corporate inertia" over safety.

A further judicial pronouncement on the law as it currently stands is to be
expected in another case following permission by the High Court granted to the
Jones family to seek judicial review of a refusal of the Director of Public
Prosecutions to bring manslaughter charges against Euromin de Hoop. This
company employed Simon Jones, a 24-year-old student, who was killed when a
crane’s grab bucket suddenly closed decapitating him as he was unloading
cobbles from a Polish ship.

In the meantime, we await a decision from the DPP as to whether any criminal
charges are to be brought following the Paddington rail disaster.

But whether any of the cases currently in the pipeline will clarify and
improve the law in this area must be open to doubt.

The future

In the aftermath of the Paddington rail disaster, Deputy Prime Minister John
Prescott promised to speed up the review of the Law Commission’s recommendation
in its 1996 report that there be a new Involuntary Homicide Act to deal with
the problems in this area of the criminal law.

Clause 4 of the draft Bill annexed to the Law Commission’s report, if
enacted, would provide a new offence of corporate killing where:

(a) a management failure by the corporation is the cause of or one of the
causes of a person’s death; and

(b) that failure constitutes conduct falling below what can reasonably be
expected of the corporation in the circumstances.

A new offence along these lines would undoubtedly make it easier to secure
convictions against companies on the basis that it would not be necessary to
establish the personal fault of one or more senior officers within the company.

Far-reaching

The new legislation may be even more far-reaching. It is understood one
option under review could result in company directors being made personally
responsible for safety and therefore potentially liable in cases of avoidable
accidents. This is the option favoured by the Centre for Corporate
Accountability which has been lobbying the Government to impose specific safety
duties upon directors.

As and when the law in this area changes, there is little doubt that the
incidence of prosecutions for corporate manslaughter is set to increase.

Since 1965, 25,000 people have been killed at work or in major commercial
disasters. (These figures do not include the death-at-work road traffic cases.)
Health & Safety Executive reports suggest that 70 per cent of these
resulted from management failure of one kind or another.

There is increasing pressure on the HSE to improve its general record of
prosecutions against individual directors and managers. Despite expressing a
determination to prosecute individuals, less than 1 per cent of the
prosecutions brought against a total of 7,916 employers between 1992 and 1998
were against directors or managers.

The HSE has recently come in for criticism by a House of Commons select
committee which complained that its investigations "have been unduly
dictated by availability of resources".

A new Involuntary Homicide Act, particularly one which increased the
potential criminal liability of individual directors, would undoubtedly act as
a spur to the prosecuting authorities who have struggled within the confines of
the existing law to satisfy public sentiment in achieving a conviction rate.

• Francis Kean is a partner in directors’ and officers’ liability at
Barlow Lyde &Gilbert

This is an edited extract from an article which first appeared in the April-May
issue of Employers’ Law. A one-year UK subscription is £65, contact 01444
445566

www.blg.co.uk

Will reform go far enough?

The Centre for Corporate Accountability was set up six months ago with
charitable funding to bring together parties with an interest in addressing “the
failure of the criminal justice system to properly prosecute companies that have
caused death, injury and disease”.

The centre aims to collaborate with health and safety, environmental,
consumer and human rights groups to lobby for proper mechanisms to establish
accountability for corporate conduct.

CCA director David Bergman welcomes the Government’s decision to legislate,
but believes there are serious limitations in the Law Commission proposals for
reform.

"Everyone in the debate acknowledges that the current law is inadequate
because it requires the identification of a controlling mind. Corporate guilt
is thus linked to individual guilt.

"But there are two problems with the Law Commission proposals. First,
they only deal with manslaughter, not with the problem of other serious crimes
such as those under the Offences Against the Person Act 1861 – grievous bodily
harm, administering toxic substances, and so on. These crimes would therefore
have to be prosecuted under the old principles.

"Second, the proposals might allow more companies to be prosecuted but
they do not deal with the problem of director liability. This may mean the
police and the Crown Prosecution Service will go for the easy option of
prosecuting the company.

"Any new legislation ought not to mean that the individual culpability
of directors should not be conceded.

"We have been lobbying for legal changes to impose safety duties on
directors rather than companies so that it would be less difficult to prove a
director has a legal duty in relation to safety."

www.corporateaccountability.org

An identified individual

Following the collapse of the Great Western Trains prosecution in the wake
of the Southall disaster, the Attorney General referred the case to the Court
of Appeal for review.

The court was asked to consider the following two questions:

(i) Can a defendant be properly convicted of manslaughter by gross
negligence in the absence of evidence as to that defendant’s state of mind?

(ii) Can a non-human defendant be convicted of the crime of manslaughter by
gross negligence in the absence of evidence establishing the guilt of an
identified human individual for the same crime?

In a landmark ruling handed down in February, the Court of Appeal answered
the first question in the affirmative and acknowledged that the particular
state of mind of a defendant was not a prerequisite for a manslaughter
conviction.

The Court of Appeal’s answer to the second question, however, was no.

The result is that it is only in those cases where the prosecution is able
to identify an individual who commits an act fulfilling the requirements of the
crime of manslaughter committed in his or her capacity as the controlling mind
of a company that such company is properly indictable for the crime of
manslaughter.

In reaching this conclusion, the Court of Appeal endorsed the Law
Commission’s analysis of the law and firmly expressed the view that matters of
disputed social policy such as this were best left to Parliament for fresh
legislation.

Comments are closed.