In late March the Home Office published its long-awaited reform proposals for corporate manslaughter and invited responses by June. The tone is measured and in marked contrast to some of the excoriating language within previous consultations. Clearly, much thought has now gone into the delicate balance involved between competing public interests.
This is all to be welcomed as, ironically, all sides had become increasingly unhappy. The Government felt the need to do something, but was concerned by risk aversion. The penny had also dropped that an offence based upon collective management failures potentially opened up a Pandora’s Box in the public sector.
Victim groups, trade unions and corporate accountability lobbies feel that large companies are never sufficiently punished, investigations take too long and culpable individuals are not held to account. Industry believes good practice is often not recognised and that there is an absence of consistency. Executives in high-risk industries fear being pilloried for making a value judgement.
Nor was this an academic debate. Fear of individual prosecution (however occasional statistically) fuels risk aversion.
A recent Select Committee report reflected that “many… organisations and individuals… cited the fear of accidents and the possibility of litigation as one of the main reasons for the decline in school trips. It is the view of this Committee that this fear is entirely out of proportion to the real risks.” This recurs across many areas of public policy and industry. The perception of personal legal exposure (criminal and civil) affects how our society functions.
Equally, nobody wants their family exposed to the safety failings of others. How then can the law provide appropriate protection and punish unsafe behaviour, while at the same time avoiding stamping out innovation and good judgement calls?
There are two main limbs to the problem:
l. Corporate manslaughter is about holding organisations liable where there is a collective failure. But the debate, particularly as to whether the new offence should extend to directors, had unhelpfully confused the accountability of individuals and organisations.
2. There has also been a lack of analysis about which failings should be punished: should the law catch a single ‘innocent’ mistake or should it be reserved for something much more serious?
The Home Office should be praised for disentangling the first issue. Its proposals are now clear – the new offence is directed at organisations alone. It also tackles the issue of public policy decisions. The line is drawn between public sector operations subject to the new offence and national government decisions, which are not. Causing MRSA deaths by a lack of cleanliness renders an NHS trust liable to prosecution, but not investing in a new form of body armour will not expose the Ministry of Defence. There will doubtless be debate around this, but it looks like a pragmatic solution.
However, precisely because the proposals (rightly) focus on organisations, they do not look at the second issue.
Currently, negligent individuals can be prosecuted. Those who are grossly negligent in fatality cases face manslaughter charges. But these are very different standards. These technical but vital distinctions are not understood by individuals. The overlap between the offences causes unfairness when they are prosecuted together.
There may therefore be an argument for a single new standard of ‘culpable fault’ to catch individuals who have been genuinely careless of the safety of others without discouraging initiative.
The Home Office proposals give an opportunity to unlock the corporate liability issue. It would be good to see, in parallel, a mature debate develop about the behaviour for which individuals should be punished (and, just as important, not punished). If that could be done calmly and without resort to cliché, then the potential would exist to resolve a long-running and emotive debate.