Disaster area

first_imgRelated posts:No related photos. Disaster areaOn 16 May 2000 in Personnel Today Despite horrific disasters such as Paddington, Southall, Piper Alpha and theHerald of Free Enterprise, there have only ever been three convictions forcorporate manslaughter in this country. Francis Kean examines the reasonsbehind this and anticipates proposals for new legislation and theirimplications for employersThe board of directors did not appreciate their responsibility for the safemanagement of the ships. They did not apply their minds to the question, ‘Whatorders should be given for the safety of our ships?’ The directors did not haveany proper comprehension of what their duties were.”From top to bottom the body corporate was infected with the disease ofsloppiness.”This is an extract from the conclusion of Mr Justice Sheen’s inquiry intothe sinking of the Herald of Free Enterprise in March 1987 which led, despitethese criticisms, to an unsuccessful attempt to secure convictions formanslaughter against P&O Ferries and seven of its officers and employees.There have only been six prosecutions for corporate manslaughter in thiscountry. Three have culminated in convictions.The most recent, earlier this year, resulted in two haulage companydirectors receiving suspended sentences after they were found guilty ofignoring the excessive working hours of their driver. He fell asleep at thewheel and killed two motorists in a seven-vehicle pile-up on the M25.So why are there so few successful prosecutions? The problem is thatmanslaughter belongs to that group of crimes where, in order to secure aconviction, the prosecution must prove a mental element. In other words, it isnecessary to show that the defendant in question knew or was grossly negligentas to the consequences of his, her or its action.Where the defendant is a company, the requisite knowledge or grossnegligence must be imputed to the company by an individual who is proved topossess it.This requirement always seems to focus the attention of the prosecuting authoritiessquarely on the directors and other senior officers of a company. This isbecause the courts have refused to impute knowledge possessed by the morejunior employees of a company. Lord Denning said, “A company may in many ways be likened to a humanbody. It has a brain and a nerve centre which controls what it does. It alsohas hands which hold the tools and act in accordance with directions from thecentre.”It is only knowledge at the “brain and nerve centre” which issufficient to bring a successful prosecution against a company for those crimesincluding manslaughter which require proof of a mental element.It is important to recognise that, as the law stands, the requisiteknowledge is not just knowledge or deemed knowledge of failures in internalprocedures, including those relating to safety, but knowledge as to thepotential consequences of those failures. The prosecution must show thatsomeone within the company was indifferent to an obvious risk of death orinjury to health or actually foresaw the risk but nevertheless was determinedto run it. It is no coincidence the successful prosecution for corporate manslaughterfollowing the death of four teenagers taking part in a canoe expedition in LymeBay involved a small company with short lines of responsibility.In that case, the managing director was shown to have the requisiteknowledge because he received a letter of resignation before the tragedy fromtwo former instructors at the centre. The letter said, “Having seen your 1993 brochure and plannedexpansions, we think you should have a very careful look at standards ofsafety. Otherwise you might find yourselves trying to explain why someone’s sonor daughter will not be coming home.”By contrast, the recent attempt to convict Great Western Trains and at leastone of its senior officers of manslaughter following the Southall rail disasterended in failure. This was despite the judge in that case concluding,”Those who travel on high-speed trains are entitled to expect a higher standardof care from those who run them. GWT failed to meet that standard and in myjudgment they failed to meet it by a greater extent than they have beenprepared to admit. Their failure was a significant cause of a disaster.”A significant reason for the collapse of the GWT corporate manslaughter casewas although the prosecution was able to identify Richard George, the chiefexecutive of GWT, as ultimately responsible for safety, they were not able toshow he possessed the relevant knowledge for the purposes of a manslaughtercharge. No such charge was brought against him personally.The prosecution’s argument that it was possible to aggregate the knowledgeof more than the person in a corporation for the purposes of a manslaughtercharge also failed. The judge in the GWT case concluded this aspect of the caseby saying, “There are many who say that the present state of the law isunsatisfactory and that the present obstacle to prosecuting large corporationsfor manslaughter should be removed.”However, if the law is to be changed it is up to Parliament to do so.The Law Commission recommended legislation over three years ago but nothing hasbeen forthcoming. There is little purpose in the Law Commission makingrecommendations if they are allowed to lie for years on a shelf gatheringdust.”More cases to comeBefore seeking to anticipate the proposals for new legislation that are tobe contained in a promised new consultation paper, it is worth recording thateven before the furore following the Paddington rail disaster, Railtrack wasfacing a prosecution for corporate manslaughter in relation to a separateincident.The charges were dropped after the collapse of the GWT case. In that case, a train driver had been killed while using a telephone at thetrackside. He had been ringing to report a difficulty with the line, asinstructed under health & safety regulations. Railtrack had allegedly beentold some 19 months earlier that the telephone was too near the track. This case ultimately turns on the question of precisely what was knownconcerning this specific risk by those within Railtrack who were legallyresponsible for its acts or omissions at the time. The company was fined a record £150,000 last month. The judge accuseddirectors of “corporate inertia” over safety.A further judicial pronouncement on the law as it currently stands is to beexpected in another case following permission by the High Court granted to theJones family to seek judicial review of a refusal of the Director of PublicProsecutions to bring manslaughter charges against Euromin de Hoop. Thiscompany employed Simon Jones, a 24-year-old student, who was killed when acrane’s grab bucket suddenly closed decapitating him as he was unloadingcobbles from a Polish ship. In the meantime, we await a decision from the DPP as to whether any criminalcharges are to be brought following the Paddington rail disaster.But whether any of the cases currently in the pipeline will clarify andimprove the law in this area must be open to doubt.The futureIn the aftermath of the Paddington rail disaster, Deputy Prime Minister JohnPrescott promised to speed up the review of the Law Commission’s recommendationin its 1996 report that there be a new Involuntary Homicide Act to deal withthe problems in this area of the criminal law. Clause 4 of the draft Bill annexed to the Law Commission’s report, ifenacted, would provide a new offence of corporate killing where:(a) a management failure by the corporation is the cause of or one of thecauses of a person’s death; and(b) that failure constitutes conduct falling below what can reasonably beexpected of the corporation in the circumstances.A new offence along these lines would undoubtedly make it easier to secureconvictions against companies on the basis that it would not be necessary toestablish the personal fault of one or more senior officers within the company.Far-reachingThe new legislation may be even more far-reaching. It is understood oneoption under review could result in company directors being made personallyresponsible for safety and therefore potentially liable in cases of avoidableaccidents. This is the option favoured by the Centre for CorporateAccountability which has been lobbying the Government to impose specific safetyduties upon directors. As and when the law in this area changes, there is little doubt that theincidence of prosecutions for corporate manslaughter is set to increase. Since 1965, 25,000 people have been killed at work or in major commercialdisasters. (These figures do not include the death-at-work road traffic cases.)Health & Safety Executive reports suggest that 70 per cent of theseresulted from management failure of one kind or another.There is increasing pressure on the HSE to improve its general record ofprosecutions against individual directors and managers. Despite expressing adetermination to prosecute individuals, less than 1 per cent of theprosecutions brought against a total of 7,916 employers between 1992 and 1998were against directors or managers. The HSE has recently come in for criticism by a House of Commons selectcommittee which complained that its investigations “have been undulydictated by availability of resources”.A new Involuntary Homicide Act, particularly one which increased thepotential criminal liability of individual directors, would undoubtedly act asa spur to the prosecuting authorities who have struggled within the confines ofthe existing law to satisfy public sentiment in achieving a conviction rate.• Francis Kean is a partner in directors’ and officers’ liability atBarlow Lyde &GilbertThis is an edited extract from an article which first appeared in the April-Mayissue of Employers’ Law. A one-year UK subscription is £65, contact 01444445566www.blg.co.ukWill reform go far enough?The Centre for Corporate Accountability was set up six months ago withcharitable funding to bring together parties with an interest in addressing “thefailure of the criminal justice system to properly prosecute companies that havecaused death, injury and disease”.The centre aims to collaborate with health and safety, environmental,consumer and human rights groups to lobby for proper mechanisms to establishaccountability for corporate conduct.CCA director David Bergman welcomes the Government’s decision to legislate,but believes there are serious limitations in the Law Commission proposals forreform.”Everyone in the debate acknowledges that the current law is inadequatebecause it requires the identification of a controlling mind. Corporate guiltis thus linked to individual guilt. “But there are two problems with the Law Commission proposals. First,they only deal with manslaughter, not with the problem of other serious crimessuch as those under the Offences Against the Person Act 1861 – grievous bodilyharm, administering toxic substances, and so on. These crimes would thereforehave to be prosecuted under the old principles.”Second, the proposals might allow more companies to be prosecuted butthey do not deal with the problem of director liability. This may mean thepolice and the Crown Prosecution Service will go for the easy option ofprosecuting the company. “Any new legislation ought not to mean that the individual culpabilityof directors should not be conceded. “We have been lobbying for legal changes to impose safety duties ondirectors rather than companies so that it would be less difficult to prove adirector has a legal duty in relation to safety.”www.corporateaccountability.orgAn identified individualFollowing the collapse of the Great Western Trains prosecution in the wakeof the Southall disaster, the Attorney General referred the case to the Courtof Appeal for review.The court was asked to consider the following two questions: (i) Can a defendant be properly convicted of manslaughter by grossnegligence in the absence of evidence as to that defendant’s state of mind?(ii) Can a non-human defendant be convicted of the crime of manslaughter bygross negligence in the absence of evidence establishing the guilt of anidentified human individual for the same crime?In a landmark ruling handed down in February, the Court of Appeal answeredthe first question in the affirmative and acknowledged that the particularstate of mind of a defendant was not a prerequisite for a manslaughterconviction.The Court of Appeal’s answer to the second question, however, was no.The result is that it is only in those cases where the prosecution is ableto identify an individual who commits an act fulfilling the requirements of thecrime of manslaughter committed in his or her capacity as the controlling mindof a company that such company is properly indictable for the crime ofmanslaughter. In reaching this conclusion, the Court of Appeal endorsed the LawCommission’s analysis of the law and firmly expressed the view that matters ofdisputed social policy such as this were best left to Parliament for freshlegislation. Comments are closed. Previous Article Next Articlelast_img read more