Involuntary Manslaughter and Corporate Killing
Comments on the Government’s proposals for reforming the law on involuntary manslaughter
Read RoSPA's Comments in full in PDF format 27kb.
General
RoSPA firmly welcomes the announcement made by the Home Secretary on 23rd May that, as part of their proposals to reform the law on involuntary manslaughter, the Government’ intends to introduce a new offence of corporate killing. Whatever uncertainties still surround the detail of the proposals and their eventual implementation, the announcement in itself signals the Government’s intention that the criminal justice system should, in future, bear down harder on those organisations and their directors which pay scant regard to the safety of those they employ or who are affected by their operations.
The wider context
The introduction of the new offence comes after a long series of battles by victims, their families and friends - as well as campaigning organisations - following disasters large and small. Disaster experiences such as Bradford City, King’s Cross, Piper Alpha, Clapham, the Herald of Free Enterprise, the sinking of Marchioness and latterly the Southall and Paddington disasters, have led to a widely voiced demand, with which RoSPA agrees, that: in future, those ultimately responsible for failing to prevent such tragedies should be punished; that better procedures should be put in place to establish the truth about what happens when disasters occur; and that lessons should be learned from disasters so that the same or similarly terrible events should never be allowed to happen again.
In the Society’s view therefore, it is also important to consider the introduction of a new offence of corporate manslaughter in the wider context of the Government’s on-going examination (started by the previous administration) of how to avoid the waste, confusion and lack of direction in processes of enquiry and prosecution following disasters - for example: inspectorate investigations, inquests, public enquiries, private prosecutions, judicial reviews and so on.
A clear example here is the long series of such processes that followed the Marchioness disaster (only latterly revisited in a public enquiry) which demonstrated how legal and political inertia can combine to obscure the truth about serious accidents being made available as soon as possible in order to improve safety.
The case for a new offence
There has been a growing public expectation that, where it can be shown that they have failed to prevent accidents leading to death, both organisations and those in charge of them at a senior level should be punished. Yet the courts have failed persistently to respond effectively to this demand, even in cases where clear findings from investigations and public enquiries have shown that the roots of such tragedies have lain in weak or non-existent safety management. Besides the failure of high profile cases such as that which followed the Herald disaster, there have been many other cases in which it has been impossible at law to prove negligence by companies and their directors, mainly because of the difficulty of demonstrating the link between an immediate cause of accident and its roots in inadequate approaches to safety management.
RoSPA thus strongly agreed with the Law Commission’s view in their 1996 report (no 237) that a new offence of corporate killing should be introduced and that, unlike the offence of manslaughter by an individual, it should not require proof that failings were obvious to the company, merely that death had been caused by a failure in the way in which the corporation’s activities had been managed or organised to ensure the health and safety of persons employed in or affected by them. RoSPA therefore welcomes the fact that the proposals will give effect broadly to the recommendations of the Commission that the law should be changed so that an offence of corporate killing could be held to have been committed in cases where it can be demonstrated that the defendant’s conduct has fallen well below what could reasonably have been expected.
‘Mens rea’
The essential problem in past manslaughter cases, exemplified particularly by the collapse of the prosecution of P&O following the Herald disaster (where both the subsequent inquest and the public enquiry found major evidence of corporate safety failure) has been the difficulty of establishing ‘mens rea’ - that is, whether the offence alleged was due to the acts and/or omissions of a ‘controlling mind’ in the organisation.
Many have taken the view that even gross failures to prevent harms caused by organisations or undertakings are not the same as other crimes since they are rarely attributable to the wilful recklessness of individuals but are generally thought to be the result of the apparently chance concatenations of events for which no single individual can be held solely responsible. On occasions, following disasters those in positions of command have claimed that they could not have been expected to know about the errors of those beneath them and likewise those at the bottom have claimed that they were ‘simply following orders’.
This presents problems in proving negligence by both organisations and the individuals controlling them.
It has always been argued by those opposed to enhanced director liability that it is extremely difficult to show reckless disregard of safety by those in overall charge, particularly of larger organisations. Some have even tried to argue that a failure to prevent an accident at work is unlike other crimes committed by individuals. Few if any directors, it is suggested, set off for work in the morning with the clear intention of allowing people to fall into machines or be poisoned by noxious substances. Such events on the whole are unplanned and tend to happen because of deficiencies in the way delegated management tasks are carried out, if not by the way in which work tasks themselves are executed by individuals.
Within this view, unplanned events leading to harm, even when they are foreseeable and preventable, tend not to be seen as culpable failure by any individual (or group of individuals) in charge of the organisation involved but simply as failure by an impersonal collectivity or corporation which, ‘having no body to be punished and no soul to be damned’ is effectively beyond the scope of prosecution for manslaughter.
Thus, from this standpoint, directors, who by definition as individuals can never be omnipresent, omniscient nor omnipotent, cannot be held directly accountable for everything which goes wrong.
Needless to say it was this view which has been constantly challenged in the aftermath of disasters, particularly the long trail of high profile disasters that have occurred over the last two decades - and, in the end, the Law Commission, in its report no 237, agreed that it was a wrong view and that the law should be changed.
Health and safety management
Besides greater public concern and higher safety expectations, the single most important factor which has shifted opinion in favour of the case for greater director culpability has been a growing appreciation of the power of safety management systems to address hazards and control risks. Thus, however physically remote directors may have been from the events leading up to disasters, it has become increasingly clear that the levers to ensure effective management of prevention (policies, people, procedures) should at all times have been very directly in their hands.
There has been a gradual rejection of the idea of man-made disasters as simply the product of chance operating within inanimate organisations - mainly as a result of a better understanding of the organisational root causes of prevention failure as demonstrated in successive public enquiries. Organisations without effective health and safety management systems are increasingly seen as ‘accidents waiting to happen’, since the natural tendency to error and dysfunction which exists within all organisations will sooner or later mean that protective barriers will fail and exposure to hazard will inevitably convert to harm - and sometimes on a disastrous scale.
Thus, morally if not legally, the responsibility of individuals for safety is being seen increasingly as directly proportional to their power to control events - moderated possibly by their knowledge of risk - although rarely in law is ignorance a valid defence. Directors of organisations (whether executive or non executive) thus bear a special responsibility for ensuring that the essential elements of effective health and safety management system are in place (policy, organisation, planning and implementation, monitoring - active and reactive, and review and periodic audit).
RoSPA has strongly supported the recommendation in the Government’s plans for ‘revitalising’ health and safety at work, that the Health and Safety Commission should develop a code of practice on directors’ responsibilities, which, inter alia, should stipulate that organisations should appoint an individual director as having special responsibility for reporting on if not co-ordinating effort in this area. RoSPA has so supported the suggestion in revitalising’ that all large organisations should report on their health and safety management to a common standard in their annual reports. The Society is currently conducting a consultation exercise on approaches to measuring and reporting on corporate health and safety performance with a view to producing authoritative guidance. This will, inter alia, draw attention to the need for adequate board level review procedures to be put in place to enable organisations to assess their management of health and safety risks as part of the annual review of internal control in managing key risks required by the Combined Code on Corporate Governance (Turnbull Report).
Culpability of directors
RoSPA therefore firmly supports the case for individual directors as well as bodies corporate to be held liable following fatal accidents due to gross health and safety management failure. On the other hand, one of the problems in establishing the culpability of individual directors following disasters has been that their responsibilities, particularly in large organisations, have tended to be mediated via several subsidiary levels of management control and accountability - meaning that evidence of only a thin veneer of safety leadership is likely to be sufficient to enable their lawyers to mount a successful ‘due diligence’ defence on their behalf.
One of the consequences of this has been that existing powers to prosecute directors under the Health and Safety at Work Act, which were designed to tackle major dereliction of safety duties by directors in large organisations, have generally only been used successfully in cases where those accused have had a ‘hands-on’ involvement in decisions that led up to the accident - for example, in the prosecution of OLL Ltd following the Lyme Bay disaster. Indeed, the only cases in which directors have been prosecuted successfully under the Act have tended to be those where the companies and operations involved were small and the director(s), as the ‘controlling mind’ of the company, was obviously so because he or she was actually directing the work at first hand, if not actually doing it!
Prosecution policy
If the creation of the new offence is to engender public confidence that corporate neglect of safety will no longer be tolerated, it is of fundamental importance that it is capable of addressing the behaviour of both bodies corporate and their directors. It is also important that , following its introduction, a significant number of cases should be taken, that few if any should fail and that penalties imposed should be seen to be appropriate and address the gravity of the offence in each case.
These points will be crucial in determining whether the new offence will have the desired effect in enhancing board room perceptions and behaviour in relation to corporate risk management and stimulating the achievement of higher levels of corporate safety performance. The fundamental purpose behind the creation of the offence should not just be to exact retribution - although clearly needs for ‘justice’ will have to be served. Rather the way in which cases are taken must be such that it gives a very clear to signal to both organisations and directors not only about what henceforth will be regarded as unacceptable but about what they need to do to be able to demonstrate competent board level leadership of health and safety management in their organisations.
The argument most often advanced for a new offence to allow for the prosecution of individuals in charge of organisations is that it would stiffen the resolve of those directors who presently either ‘don’t know and don’t care abut OS&H’ or worse still, ‘do know but still don’t care’. Here however the question to be addressed is the extent to which simply enhancing levels of anxiety about the possibility of fines, imprisonment or possible disqualification as a director, will actually help and whether personnel at any level in an organisation can be motivated successfully to participate in safety simply via threats and coercion. The offence in this sense is only one weapon in a wider policy armoury composed mainly of positive measures designed to motivate directors, including measures designed to enhance the business case for health and safety
Whether it is delegated to the Crown Prosecution Service or to HSE (or to both jointly), the responsibility for bringing prosecutions will need to be exercised carefully to ensure that cases are only taken (at first anyway) where there is clear evidence of negligence (and clearly at director level) and where it will be hard, if not impossible, for defendants to mount a successful ‘due diligence’ defence. Indeed, there is a fear expressed by some, that where directors as opposed to companies might be charged with the new offence, they might still be able to elude conviction by arguing that they had signed off the company’s health and safety policy, employed a health and safety consultant or adviser and so on - delegating responsibility to others lower down the chain who were obviously more expert than themselves in addressing specific features of risk management.
Evidential challenges
This suggests that, in order to establish a level of conduct in addressing health and safety responsibilities below which an organisation or its directors will need to have fallen to be guilty of the offence of manslaughter, courts will need to develop a much stronger understanding of reasonable conduct in this area and the kinds of evidence which attest to it. In the case of directors, courts will need to develop a much clearer understanding than hitherto of typically what it is that such people need to ‘understand, know and do’ to lead the whole process of risk management. And they will need to understand in practice, rather than just in principle, how failure by boards to put appropriate policies, people and procedures for safety in place is likely to have the effect of exposing workers and others to unacceptable risk. They will need to be able to appreciate, for example, that directors are required not only to take a ‘helicopter view’ of risks and their management but that they must be able to show that they are setting policy, determining priorities and monitoring and reviewing what is going on. On occasions, rather than simply receiving reports from below, this may mean ‘going down into the depths’ of their organisations personally to test the gap between ‘safety theory espoused’ and ‘safety theory practised’. Directors need to be able to set meaningful corporate standards and targets for improvement in terms of both the risk management process as well as outcomes.
Some signposts to good director practice on these lines already exist, for example, in HSE’s best selling guidance, ‘Successful Health and Safety Management’ (HSG65) - but at the same time, much more work still needs to be done to establish the evidence base for good practice and to further clarify the legal responsibilities of directors.
These are among some of the issues being addressed by RoSPA’s Director Action on Safety and Health (DASH) project which is seeking to bring together a number of stakeholders in OS&H who, in various ways, are working to strengthen board level H&S input. The Government and the HSC too, in following up the ‘Revitalising Health and Safety’ agenda, are now clearly committed to focusing more effort in this area - for example, as mentioned, by developing a code in consultation with health and safety system stakeholders which would make it clear that there should be a clear reporting line from and to the board on OS&H matters. RoSPA accepts however that it will be important to ensure that named OS&H directors are not used as scapegoats when evidence shows that corporate failure to address risk has been due to a failure by the board as a whole or its senior members. Gradually however it is being understood that in companies where OS&H performance is never addressed at board level as a key business objective, people will sooner or later be harmed as a consequence. Yet, even with the introduction of the new offence of corporate killing, proving that in particular cases will remain a difficult challenge for some time yet.
Sentencing policy
Arguably the question to be addressed is not simply whether - or how and when - corporate and/or senior safety management failure to manage risk is a crime but also how the courts should seek to deal with offenders. The loss of reputation which guilt itself involves in these cases can be immense as can the pressure which results from media coverage. While exemplary sentences should be imposed on organisations/and/or individuals who remain obdurate and defiant in the face of the law (or indeed to satisfy a social need for retribution), there is probably a stronger case for compulsory re-education of offenders (backed perhaps with suspended sentences and with follow-up monitoring of their performance). RoSPA has welcomed the Government’s commitment in ‘revitalising’ to address the feasibility of introducing novel penalties and this should include innovative penalties which will support the Government’s objectives in introducing the new offence.
Roger Bibbings
Occupational Safety Adviser
31st August 2000
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