Leo Martin, director and founder of the GoodCorporation looks at whether proposed Corporate Manslaughter legislation will effectively hold companies to account for the safety of workers and members of the public.
Trade unions and campaigners have tirelessly lobbied the government to introduce Corporate Manslaughter legislation ever since the Labour party promised to crack down on ‘corporate killing’ in its 1997 manifesto.
In March the draft bill was published and is currently out for consultation until 12 June.
While the proposed legislation is unlikely to bring a string of new convictions it will go some way towards eliminating problems that surrounded previous efforts to prosecute grossly negligent companies for completely avoidable accidents.
In 2003/2004 there were 235 workplace fatalities. Approximately half of these were in construction, agriculture, forestry and fisheries.
Most were preventable. None of them, however, were on the scale of the 1987 Herald of Free Enterprise disaster in which a cross-channel ferry capsized causing the deaths of almost 200 people.
As a result, P&O became the first company to be charged with corporate manslaughter but the prosecution failed because it was unable to identify an individual who acted as the ‘controlling mind’ of the company.
Since this landmark case, no large organisation has successfully been prosecuted and there have only been a handful of small companies that have been convicted of involuntary manslaughter by gross negligence.
Recent cases have been subject to the current law on involuntary manslaughter, requiring the prosecution to identify a particular individual as a 'controlling mind' of the organisation in question.
Something that has proved to be incredibly difficult to determine. The law is far too wide reaching and for judges, has resulted in sentencing problems. The law also causes problems when trying to prosecute in cases where the action or lack of it of companies has led to the death of an individual.
Under the draft legislation, an organisation will be guilty of the new offence of corporate manslaughter if the way it operates and is managed by senior managers causes a person's death by a gross breach of duty of care. Most public sector organisations will no longer have Crown Immunity. The maximum penalty if found guilty will be an unlimited fine, but not imprisonment.
The proposed legislation is subject to several limitations: it only applies in England and Wales; it will have to be proven that an organisation’s failure resulting in a death was due to profit seeking, which would be difficult, if not impossible to demonstrate.
Another key flaw is that unincorporated organisations and partnerships will be exempt from prosecution, as would the prison service and the armed forces. Last year there were over 100 non-self inflicted deaths in prison.
There appear to be no valid reasons why any organisation that employs people should be exempt from prosecution.
While the penalties under the new Bill for corporate manslaughter are no harsher than those under the current law, the proposed new law should make it easier to bring successful prosecutions, especially against large organisations.
This is because the prosecution will no longer have to identify the controlling mind of the organisation’s operations and will instead concentrate on both the individual and the collective behaviour of senior management.
However, this could lead to responsibility being passed down the management chain to more junior managers in an attempt to avoid prosecution and could also lead to a culture of blame and shame.
David Bergman, director of the Centre for Corporate Accountability (CCA) said, “There is a lot of detail that does need to be given careful consideration.”
The CCA together with the TUC are holding a major conference on the draft Bill in London on 13 May 2005 at Congress House. Anyone interested in attending should call the CCA on T: 020 7490 4494.
Leo Martin is director and founder of GoodCorporation, the corporate responsibility standard and is the principal character in the BBC’s series, Good Company, Bad Company.