Death penalties

So will ministers actually deliver on their 1997 manifesto commitment? The much-stalled draft bill on corporate killing is now due next month. The apparent political paralysis over a new criminal law to hold businesses responsible for fatal accidents provides a backdrop for next year’s trial of Railtrack and Balfour Beatty, which together with six individuals were charged last July with corporate manslaughter for their role in the Hatfield rail disaster.

If the prosecution is successful it will send “shockwaves through the corporate world”, predicts John Pickering, a partner at Irwin Mitchell, who is representing the four families that lost loved ones in the high-speed rail crash. Convictions could lead to “a dramatic realisation that directors can be personally held accountable”, he adds.

“Clearly, there should be corporate accountability for what, after all, is either gross negligence or a dereliction of duty on the part of the company,” Pickering continues. “But then you have to demonstrate how a company commits that breach and how it comes down to the actions of key individuals. It’s hard to divorce the overall corporate activity from those charged with the responsibility of running the organisation.”

And therein lies the problem. The old corporate manslaughter regime has only ever seen two other large corporations prosecuted: P&O European Ferries over the Zeebrugge disaster, which killed 192 people in 1987, and Great Western Trains over the Southall rail disaster, which killed seven people in 1997. Both failed. Only a handful of small companies have been prosecuted successfully for corporate manslaughter, which requires the identification of a ‘controlling mind’ that can first be shown to be guilty of the same crime.

Chronic indecision
Ministers appear to be in the grip of chronic indecision over their shake-up of the law, caught between the logistical problems of narrowing the legal loophole and somehow placating the concerns of UK businesses.

New research published this month, commissioned by Norton Rose, found that two-thirds of respondents regarded any new legislation as “bad for business”. Not an altogether surprising revelation maybe, but it does suggest that as many as one-third of all business leaders are sufficiently broadminded as to be happy at the prospect of legislation that could land them in the dock facing manslaughter charges.

Nevertheless, the overall message from the Norton Rose survey was one of deep suspicion of any new legislation: 60 per cent of companies felt that any law-making in this area amounted to “political manoeuvring” to satisfy public baying for corporate blood.
The research also found that most companies working in hazardous industries (59 per cent) were unconvinced that any new bill would improve safety.

“The legislation needs to focus on corporate responsibility and less so on the side of individual responsibility,” comments Peter Rees, head of Norton Rose’s litigation department and senior partner in the firm’s construction group. “It needs to rely on shareholder pressure and reputational issues to push companies to make them take the right approach.”

Nor is any draft bill likely to go down well with campaigners on behalf of victims of disasters and their families. “We’ll be pleased to see any legislation as we’ve been promised it for so long now and nothing’s yet appeared. At least a draft bill will enable debate,” says Louise Christian, the Christian Fisher solicitor who has represented families in train disasters, including the Southall and Paddington crashes. However, she is “pessimistic” about the prospect of the kind of tough new criminal statute on corporate killing that would satisfy her clients ever seeing the light of day. “If all you’re left with is prosecutions where all you can do is fine, then that simply impacts upon the shareholders and not those people that make the decisions,” she insists.

So what would new and effective corporate killing legislation mean for her clients – other than providing an (understandable) opportunity to pin the blame?

Christian says that it is a critical issue – especially for the Southall families. “They had to wait for two years while the prosecution that failed went through the courts and that was a terrible shock for them. [For them], it’s not about being punitive, but a recognition that it should never have happened and can be stopped from happening in the future,” she says. “A corporate manslaughter prosecution is most likely to deliver that because it sends out a message.”

Split decision
Not surprisingly, the debate over these reforms splits the legal profession into predictable camps – the personal injury lawyers versus the corporate defence lawyers, with the latter opposing any creeping extension of criminal law into the civil arena.

Clive Fletcher-Wood, a partner with Bristol-based Burges Salmon, advised Great Western Trains when the Court of Appeal dismissed corporate manslaughter charges brought after the Southall railway accident in 1997. He is not against new legislation per se, but he does have concerns about the proposals so far canvassed. “I want to be able to give clear advice to my clients on their potential legal liability,” he says. “But with the proposals that I’ve seen so far, I can’t do that. This is because a company’s chances of being prosecuted for the proposed new offence of corporate killing can depend on the random outcome of an accident, not the degree of risk that has been taken.”

Fletcher-Wood cites the example of the Potters Bar rail crash, where the number of fatalities depended on where people sat in the train and on the fact that a lady was walking under the railway bridge at the time. In a derailment later that year, luckily there were no serious injuries, but 10 times as many people could have been killed.
He therefore asks: “Should a company’s liability depend on the random outcome of whether death results or not, or should it follow the risk-based principles set out in the legislation governing health and safety at work?”

He has a further concern on the proposals he has seen so far, that the risk of death need not be foreseeable, or be foreseen, by the defendant. “Is it right for a company to be held criminally liable for a risk that wasn’t even foreseeable?” the solicitor asks.

By contrast, DLA partner Kevin McLoughlin describes himself as “completely hostile” to any new corporate killing legislation. It has become a given that in any debate in the press on the subject, the existing legislation is described as inadequate. McLoughlin disagrees. “I’m not sure it’s failed,” he says. “The court has the power to dish out unlimited fines. And so what else can you do to a company than take its money and terminate its existence – and you can achieve both of those results.”

The row has to be reduced to “a basic philosophical debate”, McLoughlin reasons. “My starting point is that accidents are a fact of life,” he says. “The political fashion of the moment is to work on the implicit assumption that there’s an uncaring management intent only on making profits. That demoniacal identikit doesn’t fit the companies I represent.”

A long history
In May 2000, following the collapse of the prosecutions arising from the Paddington train crash, in which 31 people died, the Government unveiled what were then already long-overdue proposals for a new offence of corporate killing. The law on corporate manslaughter was “undeniably ineffective”, argued Jack Straw, the then Home Secretary. “Anyone with a management responsibility for safety will bear the risk of personal criminal liability in a way they don’t at the moment,” he said.

It was then assumed that the Government was taking its cue from the Law Commission’s 1996 proposal of an offence of “corporate killing” based upon “management failure” of an organisation where the failure meant standards fell far below what could reasonably have been expected. This would replace the law of “corporate manslaughter”, which required the conviction for involuntary manslaughter of a senior individual representing the company.
Ministers were also calling for the introduction of other offences aimed at individual officers that could lead to individuals being disqualified from acting, or even imprisoned, where the organisation was guilty of corporate killing, even though no offence of manslaughter could be proven. The proposals also recommended new offences of “reckless killing” and “killing by gross carelessness” to replace individual involuntary manslaughter.

Despite the present Home Secretary David Blunkett’s professed conversion to the cause, last May he revealed a change of heart that would allow directors and managers of companies that cause fatal accidents to escape the threat of jail. Instead, the new proposals would be targeted at companies themselves.

“We think that targeting individual directors or managers would just create scapegoats, and that wouldn’t be in the interests of justice,” a Home Office source told the press at the time. Campaigners, such as lobbying group the Centre for Corporate Accountability, pointed out that ministers had also gone silent on a number of other crucial issues – such as whether any law would apply to all employing organisations, or just private companies; whether Crown bodies would be excluded; and whether the police or the Health and Safety Executive should take a lead role in investigations. Since then ministers have gone silent and the bill was conspicuous by its absence from last year’s Queen’s Speech. It remains to be seen what, if anything, appears over the next few weeks.

Pickering at Irwin Mitchell acknowledges that one reason why the Hatfield prosecution is taking so long to come to trial is because of the complexity of the existing legislation. But he argues that the scale of the tragedy makes the case for an effective law. “Maybe the Government’s support for legislation is ‘political manoeuvring’,” he says. “But when you see some cases and the very gross level of negligence and dereliction of duty, you have to say, ‘Why on earth shouldn’t there be a criminal prosecution?’ There’s a legitimate argument for this area of law to be looked at.”

Nor is the apparently ineffective legislation stopping the Crown Prosecution Service from bringing charges against Barrow Borough Council in Cumbria for the manslaughter of seven people who died from legionnaire’s disease, as announced last month. It is the first time that a council has been prosecuted, and one of its employees, Gillian Beckingham, is being individually charged with breaching health and safety regulations. Seven people died following an outbreak of legionnaire’s disease in 2002, and a further 140 people were infected as a result of an air-conditioning unit at a council-run arts centre. It was later discovered that a maintenance contract had been axed by the council.

For McLoughlin at DLA, the case illustrates the potential unfairness of a new corporate killing law. If the trial ends on a conviction and a fine, he argues, what has been achieved other “than another 10 pence on the rates”. “No one goes further into questioning the resources that she had, whether she had pressure to save money or how glaringly obvious that mistake was,” he argues. “All you do is transmit an anxiety through management. If you send the woman to prison, do you make the world any safer?”

Corporate killing – the Norton Rose survey
‘Political manoeuvre’:
60 per cent of companies thought that the Government’s proposals were primarily a political manoeuvre to satisfy voters.

‘Corporate reputation’:
59 per cent of companies said their greatest professional fear about a work-related death – outside the fundamental consideration of personal conscience – will be the impact on corporate reputation.

‘Responsibility or culpability?’:
Surprisingly, the majority of companies (79 per cent) thought that one individual member of the company board should have overall responsibility for safety issues. Just over half the companies surveyed (55 per cent) thought that individual senior company directors should be held personally and criminally liable for failings within their organisations.

‘Health and Safety Executive’:
68 per cent did not have confidence in the Health and Safety Executive’s ability to carry out fair and effective investigations into corporate killing incidents.

‘Improving safety’:
Most companies thought that the only way to effect meaningful change would be to change cultural attitudes from top to bottom. Legislation was seen as ineffective because of inadequate enforcement, and almost half of the companies surveyed thought that new legislation was not actually needed.