Penalising corporate killers
Howard Fidderman looks at the likely implications for employers of the Government's proposals to reform the law of involuntary manslaughter.
The Government has ended four years of prevarication and delay by announcing on 23 May that companies will face a new offence of "corporate killing". The proposal is part of a government consultation document1 on reforming the law of involuntary manslaughter - essentially, where an individual kills as a result of a blameworthy act but does not intend to cause death or serious injury.
The current common law of involuntary manslaughter has long been criticised: it covers too wide a range of criminal activity and is ineffective in relation to all but the smallest companies. The law has also been unclear about the degree of fault that has to be proved: "gross negligence" has emerged as the appropriate test, but even this can give rise to difficulties. As Home Secretary Jack Straw admitted when launching the proposals: "All too often in the past, organisations have been able to escape liability for errors where if an individual had been responsible they would have been convicted."
The Home Office's initiative is long overdue. The Law Commission consulted on reforms in 1994 and gave its recommendations to the Government in 1996.2 Nothing happened until the Labour Government set up an interdepartmental working group to look at the Law Commission's report; the group supported most of the Commission's recommendations, and the Government's resulting proposals are largely the same as those recommendations, ie the offence of involuntary manslaughter will be replaced by three (and possibly a fourth) new offences:
The proposals leave untouched existing laws on fatal driving offences, although the Government does not rule out changes if a major ongoing review establishes that the criminal justice system, and in particular the Road Traffic Act 1991, has not achieved Parliament's aims of improving road safety.
The reforms would apply to England and Wales only; the Government will consider extending the proposals to Northern Ireland after the consultation process has ended; but any reforms in Scotland are a matter for the devolved government.
The offences of "reckless killing" and "killing by gross carelessness" apply to individuals and, potentially, have a workplace relevance. But the major reform that will affect companies is the new offence of corporate killing.
CORPORATE KILLING
The basic principle in English law governing the criminal liability of companies is that those who control or manage a company's affairs are regarded as "embodying" the company. For a company to be convicted of manslaughter, an individual identified as its embodiment must first be convicted of manslaughter. This is known as the doctrine of "identification". There are usually great problems in identifying an individual who is both the embodiment of a company and who is culpable, particularly in larger companies where management structures are more diffuse and where no one individual may have clear overall responsibility for safety. In such organisations, it is almost impossible to identify individuals who represent the directing mind of the company and who also possess the mental state (mens rea) to be guilty of manslaughter; such a failure means that criminal liability cannot attach to the company. The problem will be compounded by the fact that work-related injuries are usually attributable to a failure of risk-management systems, exacerbated by individual carelessness, rather than the fault of a single person.
The "identification" problem has accounted for failures both to prosecute for, and convict of, manslaughter those companies that have caused many of the country's major work- and transport-related disasters - most recently Great Western Trains for the manslaughter of seven people in the Southall rail crash (Court of Appeal upholds manslaughter restrictions). In fact, there have been only two successful prosecutions of a corporation for manslaughter: OLL Ltd and Jackson Transport (Ossett) Ltd. Both were small or medium-sized companies with an individual who was their clear directing mind and embodiment. (The Home Office consultative document claims a third conviction - Roy Bowles Transport Ltd. In fact, it was the company's two directors, not the company, who were charged and convicted of manslaughter).
The new offence
To address this problem, the Government's consultative document endorses a new offence of corporate killing recommended by the Law Commission. Corporate killing is similar to the proposed individual offence of killing by gross carelessness and would arise where:
Furthermore:
Government widens scope
The Government seems minded to go well beyond the Law Commission's recommendation that the offence of corporate killing be limited to all incorporated bodies (except for a "corporation sole" - corporations constituted in a single person in right of an office or function which grants the person a right to act in a specific way, eg many government ministers and vicars). The effect of the Law Commission's recommendation would have been that the offence would have applied to all companies formed for the purpose of securing a profit for their members, as well as local authorities, incorporated charities, educational institutes and incorporated clubs. This would have excluded large numbers of employers: unincorporated bodies include hospitals and other types of trusts, partnerships, schools, registered trade unions and friendly societies, and one- or two-person businesses such as gas fitters (ironically, the one group of workers who have been successfully prosecuted for manslaughter).
Even so, the Law Commission rejected application of the new law to unincorporated bodies, at least until the Government had some experience of applying it to corporations. Although the Law Commission acknowledged that many of these bodies are, in practice, indistinguishable from corporations, it believed existing law meant that individuals who comprise an unincorporated body may be criminally liable for manslaughter, and so the question of attributing their conduct to the organisation did not arise.
But the Government fears that restricting the new offence to corporations would be based on an arbitrary distinction and result in an inconsistent approach. It is instead minded to apply the offence of corporate killing to all "undertakings" - the same term that is used in the HSW Act. Although the 1974 Act does not define an "undertaking", the HSE uses the definition of the Local Employment Act 1960: "Any trade or business or other activity providing employment". Use of this definition would greatly widen the scope of the corporate killing offence to all employing organisations - around 3.5 million enterprises.
The Government will exempt Crown bodies from prosecution for the offence, although it says it believes that government and quasi-government bodies should be held accountable for deaths caused by management failure. It therefore proposes an approach similar to that of the Food Safety Act 1990, in which Crown bodies would have to meet standards similar to those required of other undertakings and would allow enforcement agencies access to their premises. But instead of Crown bodies facing a charge of corporate killing, courts would make a declaration of non-compliance with statutory requirements that need immediate remedial action. (The Government is looking at a similar approach to Crown offences under the HSW Act).
HSE will share enforcement duties
The Government proposes that the police will continue to have a responsibility to investigate and charge alleged perpetrators with an offence of corporate killing, and the Crown Prosecution Service will continue to decide whether or not to proceed with the prosecution. But the Government believes also that "there are strong practical reasons for considering whether it should be open to health and safety enforcing authorities to investigate and prosecute the new offences". The tests - whether or not management failure is both the cause of death and fell below what could reasonably be expected - correspond to the tests that HSE inspectors and local authority (LA) environmental health officers apply to HSW Act-related offences. The requirements of HSE and LA investigations "mean that they will discover in the course of their investigation whether there is sufficient evidence to warrant a charge of corporate killing. To require the police to conduct what would in effect be a parallel investigation would lead to duplication of effort."
Prosecution by the HSE and LAs - as well as the Civil Aviation Authority and the Maritime and Coastguard Agency - "would avoid the complexity of current arrangements for liaison with the police and referral to the CPS and would facilitate consideration of corporate killing together with any other offences which might also be appropriate". Later in the consultative document - and slightly confusingly - the Government suggests that: "Who should actually investigate/prosecute in any particular case should be based on suitable working agreements to be developed between the police, CPS and relevant authorities in each area." As they have already developed similar agreements, the Government does not envisage difficulties reaching new agreements.
The Government believes that where responsibility for a death at work lies squarely with an individual, the enforcing authorities should continue to refer the matter to the police or CPS for one of the two individual offences (see box above), but: "Where a major and essential element of the circumstances giving rise to an individual offence of manslaughter arises from the context of the work being done, the Government considers there is a case for investigation and prosecution of individuals by the health and safety authorities."
The Government points out that its ongoing transport safety review is looking at the "balance" between investigation and prosecution responsibilities in that sector: currently the HSE's Railways Inspectorate does both under the HSW Act (British Transport Police investigate possible manslaughter crimes), but air and marine accidents are investigated and prosecuted by separate bodies.
IN SEARCH OF A "REAL DETERRENT"
The Government supports the Law Commission's recommended sanctions - fines and remedial orders - for organisations convicted of corporate killing. But it is concerned to ensure that the sanctions constitute a "real deterrent" and that there is no "scope for avoidance measures by unscrupulous companies or directors".
Punishing directors
The Government questions the Law Commission's belief that punitive sanctions on company officers in respect of the corporate killing offence (as distinct from the two new individual offences) would be inappropriate because the offence stresses the liability of the institution, rather than an individual. The Government believes this could mean the deterrent would not be sufficient, particularly in the case of large or wealthy companies; and that it would not prevent culpable individuals from setting up new businesses or managing other companies, leaving people subject to risks from their new ventures.
The Government therefore proposes that: "Any individual who could be shown to have had some influence on, or responsibility for, the circumstances in which a management failure, falling far below what could be reasonably expected, was a cause of a person's death, should be disqualified from acting in a management role in any undertaking carrying on a business or activity in Great Britain." Importantly, the grounds for disqualification would not be that of causing the death, but of contributing to the management failure resulting in death. The Government envisages that officers would face separate proceedings for this charge, following the conviction of a company, although in cases such as insolvency, it might move straight to a disqualification proceeding.
The disqualification would normally be for a limited time, but it could be unlimited in the most serious cases. Contravention of a disqualification order would be liable to imprisonment or an unlimited fine. The Government believes this will constitute a meaningful deterrent for directors as their personal income could be severely affected by such an order. It also envisages the prosecution of officers of a parent company who had exercised control or influence over the management of the company that caused the death. The Government stresses that an individual officer could face either of the two new individual offences, even if the company did not face a charge of corporate killing.
But it also seeks views on the possibility of imprisonment for directors where:
The Government says it has no firm view on this, but points out that some people argue that the public interest in encouraging officers to take health and safety seriously is sufficiently strong to merit such a sanction.
The Government stresses also that liability for corporate killing should not be determined by the type of undertaking: any individual who had had influence on, or responsibility for, circumstances in which management failure far below what could reasonably be expected was a cause of a person's death should be subject to disqualification from acting in a management role in any undertaking, including a manager of a partnership, or a school governor. Furthermore the ability to freeze assets would apply to any undertaking.
Remedial orders
The Government accepts the Law Commission's recommendation that courts should have the power to make remedial orders. It recognises that enforcing authorities will often have issued enforcement notices, but believes it would be useful if courts could order action either where the HSE had not issued a notice or where a company had not complied with it. Responsibility for drawing up the order should rest with the prosecuting agency, which would have to consult with the enforcing body (not particularly complicated if the HSE or LA is both enforcer and prosecutor); both prosecution and defence would have an opportunity to make representations or call evidence; and the enforcing authority would be tasked with checking compliance and referring the matter back to the court. No new enforcement powers would be necessary.
THE CHANCES OF SUCCESS
The principle behind the proposals - that organisations should be properly accountable where their gross carelessness results in death - has been generally welcomed by campaigners, employers' organisations and trade unions. Some, however, are opposed to particular elements of the package. The Institute of Directors, while accepting the need for a new crime of corporate killing, is opposed to any moves against individual directors. The essence of the crime, it argues, is that the offence is the result of the organisation and its management, and not any single individual. It is not, however, opposed to the prosecution of a director under the reckless or gross carelessness individual offences.
The Centre for Corporate Accountability opposes the idea that a prosecuting role be given to the HSE. David Bergman, the centre's director, argues that the HSE's record on investigating and prosecuting under the HSW Act is poor enough, without it being entrusted with a more serious offence. To give the HSE enforcement responsibility, he argues, would mean that the offence would be symbolically downgraded from being a serious "crime of violence" to a "regulatory" offence. He is also concerned that the HSE's real attitude towards the guilt of directors is shown by the fact that there were only 115 convictions of directors under s.37 of the HSW Act in the 13 years between 1986/87 and 1998/99. Additionally, he points out the problems inherent in a situation whereby the same death could involve the police investigating and prosecuting a director for either the reckless or gross carelessness offence, and the HSE investigating and prosecuting the company for corporate killing.
There is truth in the Centre's claims that the presence of the police at a workplace death will add gravity and frighten employers far more than that of an HSE inspector or environmental health officer. But the reality is that a successful charge of corporate killing will depend on a detailed analysis of the organisation's management of safety, and that the HSE is best placed to and will, in any case, do this. Nor have the police in practice given any indication that they treat workplace deaths with the seriousness they deserve.
The Centre accepts that the HSE must be involved in the investigation - particularly in the management aspects - but stresses that the overall responsibility must lay with the police. The existing HSE-CPS-police protocol for investigating workplace deaths may need "tweaking", says Bergman, but it provides a sound basis. He also argues that the sole responsibility for prosecution must remain with the Crown Prosecution Service (CPS): the criteria used by the CPS to decide whether or not it will prosecute are more clear cut and objective than those used by the HSE and, critically, are not dependent on resource issues. Although he has in the past been one of the most foremost critics of the CPS's failure to bring workplace manslaughter prosecutions, he believes that the gravity of the new offence means that the CPS is the only legitimate prosecutor, and that the CPS's culture and record can be turned around. He fears that the Government's proposals would, in practice, mean that the HSE would take the investigation and prosecution leads for corporate killing at work, with the police and CPS handling transport and other such disasters.
Overcoming the hurdles
In the end, the question is whether or not the new offence will "work"? First, the Government has to find parliamentary time for a Bill: given the speculation that a General Election may be called for spring 2001, this leaves little opportunity. Assuming a gap is found, there are three issues that will determine whether or not the legislation works: the nature of the offence; the sanctions; and the attitude of the enforcing authorities.
The Government accepts that there may be difficulties in proving a management failure, but that there is a need to restore public confidence that transgressing companies will be held properly accountable. It believes that the new offence "would give useful emphasis to the seriousness of health and safety offences and would give force to the need to consider health and safety as a management issue". The Government adds that the offence would prove beneficial for both companies and enforcement authorities because it would make companies take health and safety issues more seriously. This in turn will enhance the competitiveness of the many companies that do not cut corners with health and safety.
CORPORATE KILLING: MAIN IMPLICATIONS FOR EMPLOYERS
TWO OR THREE NEW INDIVIDUAL OFFENCES?
The Government is proposing to replace the existing offence of involuntary manslaughter by an individual with two new offences - "Reckless killing" and "Killing by gross carelessness" - and, possibly, with a third offence to cover deaths resulting from intentional or reckless causing of minor injury. These offences are additional to that of corporate killing.
Reckless killing
A person would be guilty of "reckless killing", for which the maximum sentence would be life imprisonment, if:
Killing by gross carelessness
A person would be guilty of "killing by gross carelessness" if:
-the conduct falls below what can reasonably be expected in the circumstances; or
-the person intends by that conduct to cause injury, or is aware of, and unreasonably takes, the risk that it may do so, and the conduct causing (or intended to cause) the injury constitutes an offence.
The Government sees killing by gross carelessness as a less serious offence than reckless killing because an offender would not have appreciated there was a risk of death or serious injury. It proposes a maximum sentence of 10 years' imprisonment, in line with that for causing death by dangerous driving.
A third offence?
The Government questions the Law Commission's view that it is wrong in principle that a person should be convicted for causing death if he or she was aware only of a risk of some injury, ie the resulting death was unforeseeable. (Currently, a person so convicted could in theory face life imprisonment.) The Government suggests it may be that anyone who uses illegal violence has to accept the consequences of that action, however unforeseeable they may be. It therefore seeks views on a third offence of "individual involuntary homicide" to cover death resulting from intentional or reckless causing of minor injury, where:
The maximum penalty would be between five and 10 years, although the Government envisages some scenarios where the offence would be greater than killing by gross carelessness because it involves an intentional act.
TRANSMISSION OF DISEASES
The Government sees no reason why the transmission of disease by a company should not be incorporated into the new offence of corporate killing, although it accepts that the number of cases would probably be low. It thus proposes that liability would arise where a management failure led to the transmission of a disease that was one of the causes of a person's death; and that failure constitutes conduct falling far below what can be expected of the corporation in the circumstances.
The Government intends drafting the new Bill so that individuals who recklessly or through gross carelessness transmit a disease that results in death should be covered by the criminal law, except where the transmission is between two people (eg sexually transmitted diseases).
It intends making one exception - that preserves the current legal position - where the person who transmits the disease owes a professional duty of care to the other, for example if a health worker with an infectious disease is so reckless that he or she accidentally transmits the disease to a patient.
TYING UP THE LOOSE ENDS
The Government accepts the Law Commission's recommendations that:
-have jurisdiction over subjects who commit abroad reckless killing or killing by gross negligence and the possible third individual offence; but
-not have jurisdiction over undertakings which may have committed corporate killing abroad.
The Government accepts that its proposal on jurisdiction presents an anomaly, but believes the prosecution of companies for offences committed abroad would present considerable difficulties and would be unenforceable. It will also ensure that the Law Commission's draft Bill is amended to ensure that it covers injuries caused offshore but within the jurisdiction of English and Welsh courts, as well as injuries on oil platforms.
1"Reforming the law on involuntary manslaughter: the Government's proposals", 23 May 2000, Home Office, available from Gerry Ranson, tel: 020 7273 2291, www.homeoffice.gov.uk/index.htm . Comments on the proposals should reach Edward Pegg by 1 September at Room 316, Sentencing and Offences Unit, Home Office, 50 Queen Anne's Gate, London SW1H 9AT, tel: 020 7273 3123.
2"Legislating the criminal code: involuntary manslaughter", 1996, Law Commission Report no.237. This was preceded by "Criminal law: involuntary manslaughter", 1994, consultation paper no.135.