Litigator's view

Gareth Watkins on the proposed corporate killing laws. Gareth Watkins is head of the health and safety department at Nabarro Nathanson.

A new law on corporate killing proposed by Jack Straw at the Labour Party conference should enable successful prosecutions to be brought against larger companies. But it is still directors of smaller and owner-managed businesses who are more likely to end up behind bars.

This is an ironic situation. Attempts to bring convictions for corporate manslaughter have always hinged on the ability of the prosecution to identify that a senior officer of a company its so-called "directing mind" had acted with gross negligence.

With the necessity of establishing individual liability now removed, and the likelihood of successful convictions against big businesses increased, companies may now face the stigma of being branded corporate killers if acts of negligence for which they are held collectively responsible lead to the deaths of employees, customers, contractors, or members of the public.

However, while they will suffer from the imposition of heavy fines and damage to reputation through bad publicity, you cannot put a company in jail which in turn leads to an imbalance in the application of the law.

It will remain easier to secure individual convictions against directors of small businesses with a simple management structure, where the "di recting mind" can be more readily identified.

An inspector with the Health and Safety Executive once told me that, in terms of publicity and effectiveness, one conviction of a director is worth 10 convictions of a company. It is my belief that even under the new law we could end up with a situation in which directors of smaller companies will face graver personal punishment than the bosses of big business.

Ultimately, it is the responsibility of all those involved in the management of companies, irrespective of the size of the business, to ensure that they adhere to proper health and safety procedures, and that they have a chain of responsibility which stretches from the boardroom to the factory floor.