Wheels of injustice

There has been much lobbying for tough laws on corporate killing, but the Government has reneged on its promises to make them. By Joanne Harris

Both in-house and private practice lawyers were calling last week for new laws on corporate manslaughter following Mr Justice Mackay’s pre-trial ruling in the Hatfield rail crash case on 1 September.

In-house lawyers in industries that would be affected by corporate killing laws agree that there should be new legislation. Martin Lenihan, general counsel for construction firm Skanska, says that for responsible companies and the largest contractors it would be an incentive to maintain standards.

“I think it’s right that there should be corporate manslaughter legislation,” Lenihan says. “The existing health and safety legislation needs to be beefed up.”

The dismissal by Judge Mackay of health and safety and manslaughter charges against three former executives of Railtrack – which means the company cannot now stand trial for corporate killing – is the latest in a string of failed attempts to secure a conviction under existing legislation.

The history of corporate manslaughter dates back to the Zeebrugge ferry disaster in 1987. Although the case brought by the Crown against P&O Ferries collapsed, corporate killing became an admissible crime in English courts for the first time.

Since then only a handful of convictions, mostly against very small businesses, have been secured.

Existing law dictates that companies can only be brought to trial if there is an individual within the organisation who can be identified as the “controlling mind”.

The controlling mind is most commonly a senior director with authority over the area in which an incident occurred. This individual has to be proven to be negligent in order for the company to be convicted of corporate manslaughter.

Identifying the controlling mind and proving that person’s negligence has been the major stumbling block in past cases.

Following the Southall train crash in July 1999, manslaughter charges against Great Western Trains had to be dropped because no such person could be found. Charges against the train’s driver were also dropped, and the company was instead convicted of health and safety offences and fined £1.5m.

The Law Commission published a report in 1996 focusing on corporate manslaughter and the failure, up until then, of the current law to provide justice for victims of disasters such as Zeebrugge.

The Government then said that bringing in legislation for corporate killing would be a priority. However, seven years have passed with only the first reading of a private members’ bill introduced by Frank Doran, MP for Aberdeen, in March this year.

Doran’s bill would apply not only to corporate organisations, but also to Crown bodies. A second reading of the bill has already been postponed three times.

In light of Judge Mackay’s ruling a fortnight ago, the Government has again affirmed its intention to bring in legislation, promising a draft bill before the end of this session of Parliament.

John Hendy QC, head of Old Square Chambers and counsel for the victims on the Ladbroke and Southall rail crash inquiries, thinks nothing short of “a lack of political will” is to blame for the Government’s inactivity.

Hendy says that a new law would need to find a way around the current difficulty of finding a controlling mind, but adds that this difficulty is not insurmountable.

This would place more of a burden on the directors and managers of a company to ensure that workplaces are safe places both for employees and consumers.

Others say that the legislation is needed to give victims the knowledge that someone is accountable for accidents such as Hatfield. John Pickering, the Irwin Mitchell partner advising Hatfield survivors and victims’ families on the civil case running alongside the criminal prosecution, says this is what his clients want.

“There are some of my clients who do feel that there should be accountability,” Pickering says, pointing to disasters such as Zeebrugge as cases where justice was not achieved.

Hendy agrees, saying some sort of prosecution may have helped in the disasters on which he acted. “It would have gone a long way to assuage the feelings of injustice that the victims and the bereaved do have,” he adds.

With organisations such as the Centre for Corporate Accountability also campaigning for legislation, the Government is under intense pressure to introduce the long-promised bill as soon as possible.

Until then, all eyes will be on the Hatfield case, which goes to court in January, as Balfour Beatty Rail Infrastructures and a number of former executives stand trial on manslaughter charges. The decision of Judge Mackay and the jury could prove pivotal.

Mr Justice Colin Mackay
Mr Justice Mackay has a distinguished pedigree in handling negligence cases, and his appointment to preside over the Hatfield trial has been widely praised. Born in 1943 and educated at Radley and Corpus Christi College, Oxford, Judge Mackay was called to the bar in 1967 and became a silk in 1989. He specialised in personal injury.

Since his appointment to the bench in February 2001, Judge Mackay has forged a reputation as a capable and honest judge. He has been praised for his handling of the Selby train crash prosecution. The case, which focused on the driver of a four-wheel-drive vehicle which plunged onto a train track in February 2001 and was then hit by a train, killing 10, was the centre of intense media attention.

Richard Lissack QC
Outer Temple Chambers’ Richard Lissack QC, lead counsel for the prosecution, has immense experience in both corporate manslaughter cases and train crashes. Called to the bar in 1978, he was appointed silk in 1994.

Lissack was instructed by the Crown on the Southall, Potters Bar and Ladbroke Grove criminal trials and inquiries, and has acted for both the prosecution and defence on a series of cases involving manslaughter by gross negligence against companies and individuals.

Gordon Bebb QC
Working with Lissack for the prosecution, Outer Temple’s Gordon Bebb QC has been with his current chambers for just over a year. He was one of the last batch of barristers to be appointed silk in 2002.

Bebb moved from 2 King’s Bench Walk in July 2003 and has worked on two major cases since then: Hatfield and Kidd v Portsmouth City Council, successfully defending the council in the Court of Appeal against a negligence action.

Hollis Whiteman Chambers
Hollis Whiteman Chambers is widely regarded as one of the top criminal sets in the country, and with no fewer than six barristers acting on Hatfield it is certainly making its mark.

The chambers is headed jointly by Vivian Robinson QC and Peter Whiteman QC, and Robinson is one of the set’s three silks defending individuals in Hatfield. He is acting for Kenneth Hedley, a former track engineer for Balfour Beatty, for example, who is charged with health and safety offences. Robinson specialises in a variety of commercial crime cases, several of which involve high-level fraud. He is supported in Hatfield by Hollis Whiteman junior Sean Larkin.

Fellow silk Anthony Glass is also acting for an individual, the former Balfour Beatty director Anthony Walker, who is charged with manslaughter. Glass, a silk since 1986, is also a fraud specialist, but has wide experience across the criminal spectrum.

Completing the trio of Hollis Whiteman silks in Hatfield is Tim Langdale QC, defending Sean Fugill, formerly Railtrack’s Hatfield area asset manager, against manslaughter charges. Langdale has experience in a number of high-profile criminal cases, acting in the Birmingham Six case and defending Roy Whiting in the Sarah Payne murder trial. His junior for Hatfield is Adrian Darbishire, also of Hollis Whiteman.

The sixth member of chambers to be involved in Hatfield is junior Selma Ramasamy, supporting 39 Essex Street’s Christian Du Cann for ex-Balfour Beatty maintenance engineer Vernon Bullen, who is charged with health and safety offences.