Death tolls

After the recent CPS decision not to prosecute over the Paddington rail crash, Jon Robins asks: will a new corporate killing law quench the public's thirst for justice? Or would it be impossible to hold an individual person accountable?

Christian is leading the legal action on behalf of the families of the 31 passengers who died and the hundreds who were injured in the tragedy at Paddington. She believes that the real threat of prison might have been just the “wake-up call” that the rail chiefs needed.
The solicitor pins much of the blame for the collapse of the prosecution at the door of the CPS. In turn, she points to “an overarching problem in the law” as the reason for not bringing charges relating to the training of the driver.
“We cannot identify any individual person as being responsible for driver training, and therefore for its deficiencies at Thames Trains,” said a CPS spokesman. “There is no one person that we could properly prosecute.”
In other words, it is the same old story that has bedevilled and, ultimately, frustrated every major prosecution of a company in a decade of disasters, beginning with the sinking of the Zeebrugge ferry in 1987, which claimed the lives of 187 people, through to Southall and now Paddington. In the latter cases, charges were dropped because no individual 'controlling mind' within the company could be found to be guilty of manslaughter.
Christian believes that the Director of Public Prosecutions David Calvert-Smith QC is misreading the existing law. She cites a ruling in the High Court last year where an individual lost their life in an accident at work. Again, the CPS had ditched the prosecution because, it argued, there was no case against the manager who was identified as being responsible for the safety system which led to the person's death. However, the court was to reject this line of argument and ruled that it was only necessary to show that such a person was in charge of an unsafe system and it was not obliged to consider his state of mind.
Whatever the whys and wherefores, personal injury (PI) lawyers feel that a new law must be introduced – and quickly. In response to the crash at Ladbroke Grove, the Government published a consultation paper last May proposing a new offence of corporate killing to make companies more accountable in criminal law. Offending businesses would face unlimited fines and remedial orders, and individual directors could be disqualified.
Critics remain unpersuaded by the ministers' plans. “Unless the chairman or chief executive of a company faces potential criminal procedures themselves, anything that we do is not going to achieve the objective,” argues Andrew Dismore, Labour MP for Hendon and member of the Association of Personal Injury Lawyers (Apil). “It's only if the people at the top are the ones who are going to face the music that they're really going to take it seriously.”
Dismore introduced a 10-minute bill on 'corporate homicide' in the House of Commons last year. His view is that the point of any new law would not necessarily be to drag directors into the dock, but to prevent other such tragedies. Apil also takes the view that a new law needs to be put on the statute books. “It's quite clear that the CPS is just fighting shy of ever prosecuting in these sorts of cases,” says Apil spokesman Mark Harvey, who also represents families of the Paddington crash.
He continues: “I got the impression very early on that, regardless of our best efforts to try and persuade them, there wasn't any intention [to proceed].”
In fact, the call for new law in this area goes back to a 1996 Law Commission report which proposed to scrap the requirement to identify a guilty controlling mind in a company. Only three companies, all small operations, have been found guilty of manslaughter, despite such high-profile tragedies as the fire at King's Cross Underground, which led to the deaths of 31 people in 1987, and the Piper Alpha oil platform disaster the following year, in which 167 people died.
Dismore believes that the existing law is “biased” in favour of the big companies. In the first successful prosecution, Peter Kite, the managing director of the OLL activity centre, was jailed for three years for his role in the deaths of four children in a canoeing accident. OLL was a small company, and consequently it was not hard to prove that Kite was its 'controlling mind'.
As Dismore explains: “The fact is that a smaller, one-man-band company can be prosecuted because you can see who is responsible, whereas big companies can hide behind the chain of command.” According to the CPS, prosecuting over Ladbroke Grove was made more problematic because all the safety issues on signalling were dealt with as 'committee matters', making it impossible to find an individual who could be deemed responsible.
It is not surprising that industry and representative groups, such as the Confederation of British Industry (CBI), have been less enthusiastic about new corporate killing laws. Andrew Edgar, a Clifford Chance partner who specialises in product liability, also has reservations, despite his belief that it is “abundantly clear” that the law needs to be reformed. He argues that present proposals, with their strong emphasis on fines, represent a “philosophical conundrum” for the policymakers. “If you fine a company, who are you really fining? Are you punishing those responsible for the company or the shareholders?” he asks. “If it's the shareholders, then it's also the consumers who are going to have to pay more for their goods.”
Earlier in the year, the Health and Safety Commission recommended that one director should be appointed with responsibility for safety matters. According to Edgar: “There was an uproar in industry because they felt – quite rightly – that no one in their right mind would want to be director of health and safety when he might be held personally liable.”
The recommendation was originally drafted to be included in a code of conduct, but it was later downgraded to a guidance note recommending good practice.
As Edgar explains, such a proposal sits uncomfortably with the provision of Section 10 of the Companies Act, which stipulates that, should directors be unsuccessful in defending a criminal or civil charge, they cannot recover costs from the company. The lawyer wants to know if they are going to amend this section. “Because if they aren't, the company director is at a severe disadvantage compared with [for example] a partner at a firm of accountants who can always turn to his other partners,” he observes.
Another concern about new legislation is the possibility of private prosecutions should a main action fail. Rod Freeman, a product liability lawyer at Lovells, reckons that if, for example, the Health and Safety Executive does not have the evidence it needs to prosecute, there will be nothing to stop consumer groups or aggrieved members of the public having a go. “And in the meantime, there'll be the bad publicity and the obvious damage to the company,” he says.
A more fundamental issue that concerns Freeman is that a tougher legal framework could promote a “scapegoat mentality” in the collective mind of the public. “There could be the perception that every time there's an accidental death that someone needs to be convicted for murder or manslaughter,” he argues. “It's absolutely vital that criminal law should be operated even-handedly, fairly and after a proper investigation.”
Christian is currently preparing a judicial review of the failed legal action. Understandably, her clients are deeply angry and disappointed by this month's news. “It's not about retribution for them,” insists Christian. “It's about securing accountability and stopping it from happening again.”