Corporate Manslaughter and Corporate Homicide Act 2007 - Essay Example

New Legislation Gives More Teeth To Corporate Manslaughter Law in UK Introduction According to International Labor Organization (ILO) estimates, 2 million people worldwide die at work each year as a result of the failure of company managers to secure the workplace against hazardous and unsafe conditions. In industrial relations, this has come to be known as “corporate manslaughter,” which occurs when a workingman’s death is caused by gross negligence or failure of management to introduce and maintain basic safety standards. Although it has been duly criminalized in many countries, the law used to prosecute the offense is often loaded in management’s favor, especially in industries considered vital to the national economy. Thus, existing laws against corporate manslaughter are generally compared to a paper tiger. This used to be the case in UK where organized labor and other concerned sectors had for many years railed against the growing number of deaths at work in which nobody gets the blame and receives the appropriate penalty. In 2003, the country’s Trade Union Congress (TUC) noted that 10,000 Britons die at work each year, or one for every single hour. The report said in 2002 alone, 249 workers and 384 innocent bystanders were killed in workplace incidents, with 4,000 more dying from asbestos-related diseases and 6,000 from other occupational illnesses9. Media likewise estimated that over 40,000 people in UK had been killed in commercially related circumstances between 1966 and 200610, but under the old common law of manslaughter, only 34 companies were prosecuted for homicide and only seven resulted in convictions. Previous Laws The old laws such as the law of gross negligence treated work-related deaths like common crimes, which seldom gave justice to the victims because of the inherent difficulty of pinpointing blame in a corporate setting. Under this common-law crime of manslaughter, government solicitors prosecuted erring firms in many celebrated cases but failed. Among these cases were the 1990 capsizing of the Herald of Free Enterprise ferry boat owned and operated by P & O Ferries (Dover), which killed 192 people, and the Southall rail crash in 1997, which caused seven deaths and injuries to 151 others. In both cases there were difficulties in finding one senior person in the company who knew enough to incriminate him6. What was found galling in these disasters was that they were not caused by mere individual mistakes but were part of a systemic failure of safety management10, which cries for the prosecution of an entire organization. There was one case in which government successfully prosecuted a company for such failure in safety management, but the penalty was limited to a £4 million fine. In 1999, a Thames Trains service went through a red light at signal shortly after leaving Paddington station and collided with a First Great Western train at Ladbroke Grove in west London, killing 31 and bringing injuries to over 400 people. To demonstrate the difficulty of prosecuting anyone under the old common law, it took all of eight years before the case was resolved. In March 2007, the train operator Railtrack, which had been renamed Network Rail, was eventually fined £4 million for the breaches in health and safety that led to the disaster. This aftrer the court heard a “catalogue of failures to act" by Railtrack that led to the disaster. The old laws somehow provide that companies may be prosecuted for a workplace death but the liability is heaped upon the individual responsible for it. The law at least seeks to identify the so-called “controlling mind” to be blamed for the accident but it should be proven beyond a shadow of doubt that this entity is guilty of gross negligence, which has proven to be a difficult task. What happens in most cases is that those who get singled out for the offense are often the front-line managers, not top management. Government solicitors themselves had admitted that “corporations are notoriously difficult to prosecute under the current provisions (of the law)6.” On the Herald of Free Enterprise case, the Solicitors noted the court’s failure to identify the controlling mind although it was found that the said company was “infected from top to bottom with the disease of sloppiness” and “staggering complacency.” Because of the difficulty of identifying a senior manager as the controlling mind, the European Foundation noted that it is “virtually impossible to successfully prosecute large companies.” As a result, the UK courts have so far secured only a total of eight convictions for corporate killing, and all the cases involved directors of small companies at that. The reason is that in small companies the bosses are few which make it relatively easy to pinpoint the controlling mind. In bigger companies, the lines of responsibility and management layers are complex, such that decisions related to workplace safety are made by lower-level executives who can easily evade responsibility when accidents happen. Under the old laws, a corporation could only be convicted of manslaughter if a single employee of the company committed all the elements of the offense and was of sufficient seniority to be seen as embodying the "mind" of the corporation. The practical consequence of this was that such convictions were rare and there was public discontent where it was perceived that culpable corporations had escaped censure and publishment. Controlling Mind The old laws on corporate manslaughter, which link an organization’s guilt to the gross negligence of an individual who is said to be the embodiment of the organization, have indeed made it difficult to prosecute large organizations. Thus, of 34 cases for corporate manslaughter filed against as many companies since 1992, conviction was won in only 6 cases3. Moreover, these convictions only involved fines. The fines imposed on organizations are not seen to be an appropriate punishment for a fatality, where the individual is seen as an innocent party. This view has been heightened by media after cases like Zeebrugge, Piper Alpha, the Kings Cross fire and the Southall rail crash, where attempts to prosecute under the law of gross negligence manslaughter met serious difficulty and ultimately failed1. The difficulty was before a company can be found guilty, an individual who is the “controlling mind” of the organization must first be found personally guilty of the offense10. It is this “identification principle” that has led to serious difficulties in prosecuting medium to large organizations with diffused management and corporate structures, and where health and safety has traditionally been delegated to a lower tier of health and safety professionals rather than the controlling or directing mind6. Under existing laws, it is not possible to add up the negligence of several individuals to show the company as being grossly negligent. In reality it is always likely to be the combined acts or omissions of individuals and/or processes, none of which can individually be qualified as manslaughter, which lead to a fatality. The trend towards a sterner attitude against work-related killings showed in recent court decisions awarding heavier fines for breaches of health and safety legislation3. It may well be that these fines have been in response to the difficulties of bringing corporate manslaughter charges under the current legal framework, that is, a perceived need to over-compensate to satisfy public demand. Corporate Manslaughter & Homicide Act 2007 The CMCHA 2007 was enacted precisely to respond to the unrest that have been caused by the “disease of sloppiness” and negligence that occur at every level of the company’s hierarchy in UK. The Act creates a new statutory offense in England, Wales and Northern Ireland of “Corporate Manslaughter”, and “Corporate Homicide” in Scotland2 . Corporate manslaughter is a term used in English Law to reflect an act of homicide committed by a company as opposed to an individual. In a case following the Zeebrugge ferry disaster, the court of appeals confirmed in principle that a company can commit manslaughter, albeit all the individual defendants in that case were acquitted. An organization will be guilty of the offense of corporate manslaughter if the acts or omissions of senior management cause a person’s death. The failure could be either a single or series of errors, which directly lead to a gross breach of the duty of care owed by the employer to the deceased4. The key elements of the old legal framework for corporate manslaughter are retained with the new Act, notably the provisions that the organization must have owed a duty of care to the deceased, that there must have been a breach of that duty, and that this breach must be “gross”. In cases where an employer is charged with the death of an employee, the existence of a relevant duty of care will nearly always be straightforward1. However, some scenarios could potentially involve a number of organizations with overlapping duties, such as construction projects. This could lead to cases with multiple defendants. It is also possible that safety consultants and related experts could be included among defendants if their advice or services are deemed deficient. Breach of a duty of care is to be regarded as “gross” if the organization’s conduct falls “far below what can reasonably be expected of the organisation in the circumstances12”. Given the potential for wide interpretation of this standard, the Act provides further guidance in applying the “gravity threshold.” Factors that a jury will be required to consider include: 1) whether the organization failed to comply with any relevant health and safety legislation, 2) If it did, how serious was the failure and how much of a risk of death did it pose? 3) the extent of the organization’s compliance with relevant health and safety guidance, and 4) whether the evidence shows that there were “attitudes, policies, systems or accepted practices within the organization that were likely to encourage any such failure or to have produced tolerance of it1.” Duty of Care Under the new law, a duty of care exists in relation to the systems of work and equipment used by employees, the condition of worksites and other premises occupied by an organization and in relation to products or services supplied to customers. The intention behind the legislation is to set out more clearly the extent of the duty of care owed by companies and other organizations and to overcome some of the legal technicalities, which in the past made it difficult to secure successful convictions of corporate defendants2. The following duties fall within the ambit of the Act: a duty owed to employees or others working for the organization, a duty owed as an occupier of premises, a duty arising from the supply of goods or services (which includes healthcare services), a duty arising from the carrying out of construction or maintenance, and a duty arising from the use or keeping of any plant or vehicle8. Harsher Penalties The Act provides that an organization guilty of corporate manslaughter or homicide will be liable to an unlimited fine, with the courts imposing a publicity order related to the conviction and fine. The courts may also issue a remedial order, which requires the organization involved to take steps to address the perceived failures behind the death. On conviction a corporation may be ordered to remedy any breach, or to publicize its failures, or be given an unlimited fine. A company may also be found guilty of breaching the main provisions of the Health and Safety at Work Act 1974 if it has failed to take all reasonably practicable steps to ensure the health and safety of its employees and those affected by its business. This duty of care obviously extends to fatalities and can also lead to unlimited fines. The HSWA contains provisions to find directors, officers and managers personally liable and potentially subject to imprisonment, where a health and safety offence has been committed by the company with their consent or connivance, or is attributable to their neglect2 In a regulatory impact assessment, the Home Office estimated that the new Act will result in the number of prosecutions for the offense of corporate manslaughter rising from the current one or two to around 10-13 additional prosecutions a year. This would represent prosecutions for 3-4 percent of work-related deaths. Perhaps of greater concern is the stigma likely to be attached to an organization found guilty of the new offence, and the potential consequences for its reputation and brand image. A key threat arising from a prosecution will be the harm that it might have on the company’s brand, particularly in today’s climate where supplier chain integrity is of paramount importance. Indeed, one can hypothesize that marketing departments may, for the first time, take an interest in their organizations’ approach to health and safety management1. CORPORATE MANSLAUGHTER & Conclusion Perhaps of greater concern is the stigma likely to be attached to an organization found guilty of the new offence, and the potential consequences for its reputation and brand image. A key threat arising from a prosecution will be the harm that it might have on the company’s brand, particularly in today’s climate where supplier chain integrity is of paramount importance. Indeed, one can hypothesize that marketing departments may, for the first time, take an interest in their organizations’ approach to health and safety management5. The new legislation serves to highlight and re-enforce the importance of addressing health and safety issues at a high level. Directors and other “senior management” should take the opportunity to review the management of, and responsibilities for, health and safety in their own organizations and ensure they have appropriate and effective health and safety processes. The good news is that the explanatory notes to the Bill state: “There is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs”. With the provisions of the Act not due to come into force until April of next year, there is time yet for organizations to address any shortcomings in their governance structure, policies and systems. It must be recognized, however, that company-wide attitudes and accepted practices may take more time to change2. Organizations that fail to recognize this Act as a significant and subtle piece of legislation will do so at their peril. It removes many of the barriers to a successful prosecution under the existing legal framework and without question, stigma and reputation /brand damage will be the Act’s biggest weapon. Demonstration of effective management systems and a risk aware safety culture are likely to be key battlegrounds at trial. The acts and omissions of senior individuals will be under the microscope as never before7. Bibliography 1. Black, M. & Coatman, J., 2007, The ‘Don’t Kill’ Bill, QBE Plantation Place, London. 2. Clarkson, C.M.V., 1998, Corporate Culpability, Journal of Current Legal Issues 2. 3. European Foundation, Government to Introduce Corporate Killing Law, available (online) at: http://www.eurofound.eu.int/2003/060feature/uk0306f.html 4. Gobert, J., 2002, Corporate Killings at Home and Abroad – Reflections on the Government’s Proposals, Law Quarterly Review 118 (72). 5. Herring, J., 2004, Criminal Law: Text, Cases and Materials, Chapter 13, Oxford University Press. 6. IBB Solicitors, Corporations, Directors and Corporate Killing, IBB Solicitors Articles and Guides, available at: http://www.ibblaw.co.uk/articles/index.cfm?id=890&fid=609 7. Ministry of Justice, 2007, Guidance on the Act, UK. 8. Office of Public Sector Information, 2007, Understanding the Corporate Manslaughter and Corporate Homicide Act 2007, available (online) at: http://www.opsi.gov.uk/acts/acts2007/20070019.htm 9. Palmer, H., 2003, Corporate Accountability and Real Corporate Responsibility, TUC briefing at Workers’ Memorial Day, 28 April 2003, available at: Http://www.tuc.org.uk/h_and_s/tuc-6546-f0.cfm 10. Slapper, G., 2007, Corporate Manslaughter Law is a Vast Improvement, Times, 18 July 2007. 11. Sullivan, G.R., 2001, Corporate Killing – Some Government Proposals, Criminal Law Review 31. 12. Trewin, J., Dowen, D. & Di Giacomo, E., 2007, The New Rules on Corporate Manslaughter, Hill Dickinson, UK. Read More