Mark Tyler believes that the new corporate killing offence has little to do with health and safety.
The government has finally revealed its proposals for overhauling the intricate law of manslaughter. The result is a sub-division of different offences of killing involuntarily, with a special formulation for “corporate killing”. The proposal is based substantially on the Law Commission’s earlier recommendations for this offence.
This is encouraging news for baffled law students, busy practitioners, and judges faced with a difficult summing up. But as we know, what is good for lawyers is not always for the greater good.
The intention is that all “undertakings” – not just corporations but charities, hospital trusts, small businesses, partnerships and local authorities – could be convicted more easily, with a reduced evidential burden on the prosecution.
The offence is committed where a management failure is the cause, or one of the causes, of a person’s death, and that failure constitutes conduct that falls far below what can reasonably be expected. A failure would be treated as causal for these purposes even though the immediate cause of death was the act or omission of an individual.
It is easy to see why the Trades Union Congress and victims’ action groups have lobbied for this approach. It sidesteps the need to show negligence to a recognisable criminal standard by any natural person really responsible. It will not be necessary to show that the risk was obvious, or that the defendant was capable of appreciating the risk at the time.
Companies and other organisations – unlike individuals – will not be tried by a jury of their peers and could be convicted purely on the basis of hindsight. Since any management should aim to avoid killing its staff or customers, juries will not need much persuading that an accident, especially one with multiple fatalities, could have been avoided.
The Law Commission cited deterrence as a key reason for its recommendation of the offence. One campaigner has asserted that corporate criminals are uniquely deterrable because they calculate risks rationally and stand to lose valued possessions and status.
How deterrence works at the level of inadvertence and unconscious risk-taking is not explained, either for individuals or hierarchies of individuals with collective respon- sibilities. Supporters have provided no evidence on the deterrent effect of the new offence over and above that for the existing threat of manslaughter or other prosecution.
It is claimed that the new law will restore public confidence that companies will be held properly accountable. The Home Secretary said: “All too often organisations have been able to escape liability for errors where, if an individual had been responsible, they would have been convicted.” In fact, we already have tough offences for undertakings that fail to ensure the safety of their staff or public, where the onus is on the defendant to prove it took all reasonably practicable precautions. We already have offences of failing adequately to assess any risks, not implementing appropriate precautions and failing to monitor and review their effectiveness.
These offences are set out in the Health and Safety at Work Act 1974. If companies are really escaping liability some serious questions need to be asked about the value of the Government’s Health and Safety Executive, charged with enforcing these laws, and how it uses its £180m annual budget.
The danger is that in effectively relegating the mainstream enforcement of health and safety laws to an inferior status, the Government is reinforcing the myth that statutory offences are not criminal. Over 30 years ago, Lord Reid in Sweet v Parsley famously drew a sharp distinction between “truly criminal acts” and acts not in the public interest which are prohibited under a penalty. As Professor Sir John Smith observed, this is a fallacy and a conviction for a statutory offence can hardly be equated with a fine for failure to return a library book.
Only recently has the Court of Appeal led the way in disposing this conventional wisdom by issuing guidelines for meaningfully high levels of penalties for corporate offenders. Six-figure fines are becoming regular events in prosecutions of large organisations – the imposition of a £1.5m fine to a major train operator at the Old Bailey cannot be characterised as lack of accountability.
The Government is dabbling in this area of law without a coherent policy and its plans have more to do with politics than serious law reform or health and safety promotion.
Mark Tyler is a partner at CMS Cameron McKenna.