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Comments from ACCA
June 2005

ACCA is pleased to comment on the Home Office’s draft Bill on the above. Our interest in this matter is related primarily to the financial implications of the proposals for individual businesses.

The draft Bill seeks to improve the current law by making provision for a company to be prosecuted where the management or organisation of its activities causes a person’s death in circumstances where there has been a gross breach of a duty of care to the deceased.

Our main reaction to the proposals is to query whether they would achieve the stated aim of establishing an offence which is different and more effective than those which already exist. The draft Bill provides for unlimited fines to be imposed on entities which commit the new offence. It does not provide for sanctions to be imposed on individual officers or officials of a corporation who may have had a direct involvement and responsibility for causing a death.

The Health and Safety Executive currently has powers under the Health and Safety at Work Act 1974 (HSAW) to enforce the provisions of that Act. Under HSAW, employers have duties to safeguard the health and safety of both workers and members of the public who may be affected by work activities. The courts may impose unlimited fines on entities, but may also impose prison sentences on employers who are judged to be seriously at fault.

The draft Bill does not go further than HSAW in that it makes provision for the attribution of liability only to the offending company, and does not seek to prosecute the individual officers or officials who may have been directly responsible for the breaches which led to a death.

It appears that both regulatory authorities and the courts are taking a more aggressive position regarding the imposition of penalties under HSAW. The recent Hampton review of regulatory enforcement proposed that fines for regulatory breaches should take full account of the economic benefits of long-term illegal activity. In 2004, in fining Thames Trains £2 million for its failings in respect of the Ladbroke Grove disaster, the judge declared that the court’s purpose in setting the amount of the fine was to ensure that it was substantial enough to have an economic impact on the company and to be a reminder to it and others of the need to pay prompt attention to identifiable risk.

Thus, if the apparent trend towards increasing the severity of financial sanctions under the current law is continued and even enhanced, it would appear that the ultimate objective of the new draft Bill, viz to penalise companies financially for causing death by negligence, can already be attained without the need for further legislation. In one specific way, the existing law is wider in scope than the draft Bill in that it applies to all employers, whereas the new Bill would not extend to unincorporated bodies such as partnerships, many of which are, of course, very large.

We fully support the aim of requiring companies to prioritise their health and safety and risk management procedures. But the consultation document does not explain how the same legal objective could be achieved under the proposed new offence when it could not be achieved under the current law. We certainly do not consider that any practical purpose would be served solely by enabling a court to find a company guilty of the emotive charge of ‘corporate manslaughter’.

We suggest that it would help to strengthen the rationale of the draft Bill if it were to acquire a greater sense of independent purpose, separate from health and safety legislation. The draft Bill does not help to establish a clear independent justification for corporate manslaughter in that it contains numerous cross-references to health and safety legislation and codes of practice etc.

With regard to the wording of the proposed offence, we do not see any practical problem with the use of the terms ‘gross breach’ and ‘relevant duty of care’. But the term ‘senior manager’ will give rise to uncertainty as to its application because of some of the criteria which serve to define that term, viz a person who plays a ‘significant’ role in the making of decisions relating to ‘the whole or substantially the whole’ of the organisation’s activities.

Also, the draft definition of senior manager would extend much further than a company’s directors – a person would be caught by the definition not only if he or she were part of a company’s board of directors or equivalent decision-making body but also if he or she were actively involved in the operational management of the organisation. Thus a wide range of individuals could conceivably be capable of causing their company to commit the new offence. We query whether it is reasonable for the law not to distinguish, in the course of determining liability for corporate manslaughter, between a death caused by the personal mistakes of an operational manager and a death caused by the systemic failure of the whole organisation. While a company will always have vicarious liability for the acts of its employees, we consider that, in the particular context of corporate manslaughter, the essence of the concept of the ‘controlling mind’ of an organisation should be adopted in any new legislation. We would thus favour restricting the scope of the term ‘senior manager’ to those persons who have overall decision-making authority and responsibility within the organisation.

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