Reforming the law on involuntary manslaughter


RESPONSE TO THE PROPOSALS ON CORPORATE KILLING

September 2000

SECTION 1 - ACCOUNTABILITY

1.1 A practical approach
The impetus behind the founding of Public Concern at Work in 1993 and the new approach to whistleblowing was the number of disasters in the late 1980s and early 1990s where subsequent public inquiries found that they might have been prevented. Specifically it was found that employees often knew that something was seriously wrong and for a variety of reasons either did not raise the alarm or more importantly, when they did nothing was done. The inquiry into the Clapham rail crash revealed that a supervisor had noticed loose wiring some weeks earlier but had not told anyone for fear of “rocking the boat”. In the aftermath of the collapse of BCCI a public inquiry found that the “autocratic” environment ensured that employees did not raise their concerns and the frauds continued. The essence of the issue then, and now in our view, is one of accountability - namely that this principle only effectively comes into play when people have actual notice of the risk. It is this knowledge which allows people to focus on the conduct of key individuals and to see where and (possibly why) there has been a breakdown in practice.

In two of the disasters prior to our launch, the companies were charged with corporate manslaughter. In both cases employees had raised their concerns and management failed to act. In his 1996 essay “Business ethics and accountability”, Lord Borrie QC contrasted the Zeebrugge Ferry disaster in which 194 people lost their lives and the Lyme Bay canoeing tragedy in Dorset where four school children drowned.

The potential value of accountability as a means of deterring malpractice is illustrated by two recent tragedies. After the Zeebrugge disaster an attempt was made to prosecute the company for corporate manslaughter. The prosecution case was never put to the jury because there was no real evidence that the Board- in law “the directing mind and will of the company” knew of the danger. As I mentioned earlier on five occasions staff had blown the whistle internally about the boats sailing with their doors open, but these warnings had got lost in middle management. If the Board itself had been warned - as our approach and proposed procedures would entail - it is fair to assume they would have halted the practice and seen that their desire to turn the ferries around without delay had been misunderstood by those putting the policy into practice and taken too far. If, however, one could imagine the Board had not heeded such a warning, they would have had to account for their actions, in court, in the media, to the bereaved, and also to their colleagues, family and friends - and through that process valuable practical lessons might be learned for the future. As it was, their response was no more than “If only we had known…”.

The Dorset canoe tragedy is a pertinent contrast. There, several months before the four children drowned, the managing director received a graphic warning from two instructors that if he did nothing about his safety standards, he would have to explain why someone’s children were not coming home. As we know, he ignored the warning. Because he had actual notice of the danger, he was expected to account for his response and, unable to give any good explanation why he took no action in the face of such a warning, the company was convicted of corporate manslaughter and he was imprisoned for three years.

The fallout of the failure of cases like the Zeebrugge Ferry disaster is that it undermines public confidence in the ability of the law to sanction businesses which take unacceptable risks with the safety of the public or their workforce. Further it gave an impression that it was only in small companies where the management structure is simple, like that in the canoe tragedy at Lyme Bay, that convictions for corporate manslaughter would be possible. Our view was that the critical issue was whether there was sufficient evidence to establish the degree of recklessness or wanton disregard that the law would require in an offence of manslaughter.

To promote accountability in the workplace Public Concern at Work has publicised this issue, offered free advice to people with serious concerns and provided training and consulting services to employers wishing to implement effective whistleblowing policies. An effective whistleblowing policy can channel important information up to senior management, so allowing them to look into and handle problems early and effectively. Such policies are now widely recognised as a crucial risk management tool. The difficulty with corporate manslaughter, in our view, was not that the law itself was deficient but that the courts were unable to identify the information available to senior management and, therefore, what knowledge they had about the risk and, if it was not known, to what extent it was because they had chosen not to know. As such we consider that whistleblowing policies are a relevant and practical consideration when addressing this issue.

1.2 Endorsement for this approach
This approach to accountability and whistleblowing has been endorsed by this and the previous government, by the Committee on Standards in Public Life, and key regulatory authorities. This approach has been given a statutory basis through the Public Interest Disclosure Act 1998 which was unanimously voted through Parliament and supported by the CBI, IoD and TUC. Lord Nolan commended the legislation for “so skilfully achieving the essential but delicate balance between the public interest and the interests of employers”. It is also notable that this legislation is not cited by any business group as placing an undue burden or imposing extra costs on its members.

1.3 Corporate killing - principle and practice
From our point of view the purposes of the law in this area should be:

  • to deter organisations from exposing people to unnecessary dangers or from failing to minimise such dangers;
  • to ensure that individuals through an organisation understand that they can expect to account for their conduct, where their actions or omissions result in death;
  • to provide a practicable and just framework where the criminal law can be applied to serious misconduct which causes death; and
  • to regain and maintain public confidence in the law and in the accountability of corporations and other organisations.

In sections 2 and 3, we comment on the application and detail of the draft offences and additional proposals. Before we do, we set out what we consider to be key elements of an offence in this area, if it is to achieve or recognise the above purposes.

Where a death or deaths occur due to a management failure in an organisation, the public will want to know:

a) Did someone know of the risk?
b) Who, if anyone, did they inform of the risk?
c) If senior management was not informed of the risk, was this because it took no reasonable steps to be informed of or open to concerns about such risks?
d) If it was informed, did senior management fail to act reasonably to remove or reduce the risk?

In our view where the answer to the third or fourth questions in a given case is yes, the public would expect the criminal law to be capable of applying to the organisation and those culpable individuals in senior management. Equally it is our view that the business community would view this as realistic, provided that there was a defence that a diligent business and its senior staff could safely rely on. One advantage of such an approach will be that it will reduce the risk that investigation and prosecutions under the new offences are necessarily lengthy and complex, and another is that it will ensure there is a proper degree of certainty about what constitutes or does not constitute criminal conduct.

As we explain in the following section we see sense in the Government having a consistent policy in this area, and therefore co-ordinating this Home Office proposal and the recent initiative of the DETR on Revitalising Health & Safety. We consider that a defence should be available to the offences for an organisation and its individuals officers where they can demonstrate that they exercised reasonable care and due diligence (a) to ensure they were informed about any serious risk to health and safety within their organisation and (b) if so informed about a risk that led to death, to have acted reasonably in response to that information to minimise the risk.

SECTION 2

GENERAL COMMENTS ON THE PROPOSALS ON CORPORATE KILLING

2.1 The approach of the new offence
There appear to be two key differences between the proposed offence of corporate killing and that of killing by gross carelessness(1). These are that the corporate killing offence does not require that
a) the risk be obvious; or
b) the risk be capable of appreciation.

In these respects corporate killing is a new and distinct offence, which differs from the Law Commission’s original proposals(2) and the underlying principle to its recent report on when in principle the criminal law should apply in cases of involuntary killing(3) . The effect of these distinctions in our view is that the new offence of corporate killing will have more in common with strict liability offences than with the other offences of involuntary manslaughter in that mens rea is not a central element of the offence.

2.2 Identity
The new offence does not address the issue of ‘identity’ which was widely seen as the problem in applying criminal law to corporations. Rather it side-steps the issue, by removing “the legal requirement under the present law to identify individuals within the company whose conduct is to be attributed to the company itself” (para 8.4, Law Commission).

In making identity irrelevant, it shifts the focus away from the human beings who run corporations and who make the key decisions and judgements calls on their behalf. Under the new offence the key issue will cease to be “You were in charge and you knew and you did nothing” (Lyme Bay conviction) or “You were in charge and though you did not know, you could have known and you should have known” (Herald of Free Enterprise prosecution collapses(4) ) but will be “You were in charge when there was a serious systems / management failure”.

We view the new offence as a welcome addition which can deal with circumstances where - due to the issue of identification or difficulties with the duty of care - the offences of killing by recklessness or by gross negligence or unlawful killing are not viable against a corporation. We welcome the view of the Home Office and the Law Commission (see clause 4(5) of the draft Bill) that corporations may still be prosecuted for the offences of reckless killing and killing by gross carelessness. (While the Home Office paper is not explicit, logic suggests that their additional proposed offence of unlawful killing will also lie against organisations). This is of critical importance as it recognises that in cases where serious risks were known but ignored by directors (such as at Lyme Bay) convictions for the more serious offences may be secured. Indeed if there is any risk(5) that under the proposed new legal framework, the managing director in the Lyme Bay case would not be convicted and liable to imprisonment (a sentence confirmed as justified by the Court of Appeal) then this needs to be recitified or Parliament and the public need to be fully aware of the effect of these changes.

We do, however, consider that the Government should co-ordinate its position on the issue of identification as the DETR has recently proposed (Revitalising Health & Safety, June 1990 - action point 11(6) ) that a director in each company will be appointed as responsible for health and safety. We recommend that that person’s responsibility should be to ensure that the Board is informed not less than twice a year of safety issues. This should include briefing the Board on accidents, near misses, safety concerns raised through a whistleblowing policy, enforcement notices, convictions, civil claims, consultant’s reports and links with safety authorities. The advantage of this approach (rather than one which turns the designated director into a fall guy) is that it will have a deterrent effect and ensure that the Board pays due attention to safety issues.

2.3 Practicalities
The first limb of the offence of corporate killing is made out where a management failure (which seems to mean negligence(7) ) is a cause of death, even where the jury thought the causal link was relatively minor. This is a low threshold, which may raise expectations that prosecutions for the new offence will routinely be brought where a death is caused by negligence. If so, many of those investigations and prosecutions may involve trawling through the conduct and management systems of the company. If so, we would have thought there is a risk that the resulting prosecutions may be as complex and lengthy as those in fraud trials.

To illustrate this risk, we refer to the Law Commission example of the offence of killing by gross carelessness (in para 5.36):

“D, a climbing instructor, took a group of inexperienced climbers out with inadequate equipment in very bad weather. They got trapped and one of them died. In order to convict D, the jury would have to answer “yes” to all the following questions: (1) Would it have been obvious to a reasonable climbing instructor in D’s place that taking a group of inexperienced climbers out in the prevailing conditions would create a risk of causing death or serious injury to one of them? (2) Was D capable of appreciating this risk? and (3) Did his conduct fall far below what could reasonably be expected of him in all the circumstances?”

If the climbing instructor was employed by a company, the questions the jury must answer in a case of corporate killing are many more than three. Preliminary points would include why inadequate equipment was taken, who knew the climbers were inexperienced, why the trip was made in very bad weather, whether the safety and other procedures were followed, whether the instructor could normally be trusted, what active supervision there was, and what emergency safeguards there were. When each of these trails had been explored, consideration would then be given to what industry practice was, whether the company fell below it, and whether its conduct was far below what one could reasonably expect.

To reduce the risk of a long and protracted trial, we consider that a defence should be available to the offences for an organisation and its senior officers where they can demonstrate that they exercised reasonable care and due diligence (a) to ensure they were informed about any serious risk to health and safety within their organisation and (b) if so informed about a risk that led to death, to have acted reasonably in response to that information to minimise the risk.

SECTION 3

COMMENTS ON SPECIFIC ISSUES

Our comments on the specific questions posed in the Paper are:
1. The Government would welcome comments on whether the application of the offence to “undertakings” is preferable to applying it solely to corporations.

While the origin of this debate was the difficulty of convicting companies for manslaughter offences, we do not object to the principle of extending this specific offence more widely. However, we consider there will be practical difficulties as to penalties where a public body such as an NHS Trust is convicted. We doubt that the court or public will see cause to levy a large financial penalty if the effect is simply to take money away from patient care. If that is so, then one can expect a corporation to say it is wrong for the court to give it a hefty fine for a similar offence. If this happens and fines are the only penalty then there is a risk that the new law will not maintain public confidence

2. The Government would welcome any comments on the application of Crown immunity to the offence of corporate killing.

If the offence is to be extended to other undertakings, there is no valid reason we can see why it should not also cover government and quasi-government bodies. We are unable to reconcile this proposal with the DETR statement in Revitalising Health and Safety that the Government is resolved to removing crown immunity in the health and safety field.

3. The Government therefore considers that there is a good case in England and Wales for the health and safety enforcing authorities and possibly other enforcement agencies, as appropriate, to investigate and prosecute the new offences, in addition to the police and CPS. We would welcome any comments on this.

We are aware that there is concern about the record of the health and safety authorities in this specific area. We accept the Home Office’s point that unnecessary duplication of investigations should be avoided in the context of the offence of corporate killing. At the least we recommend that the CPS, ACPO and the HSC should agree and publish guidelines on how they will co-operate in dealing with this offence. As to the offences of killing by gross negligence and reckless killing, we recommend that the police and the CPS should take the lead in all such cases, whether the investigation is into an individual, a company or an undertaking.

4. The Government therefore proposes that the prosecuting authority should also be able to take action against parent or other group companies if it can be shown that their own management failures were a cause of the death concerned.

If the offence is committed by the parent or associated companies then we see no reason why they should not be prosecuted.

5. The Government would welcome comments on (a) whether it might be appropriate for action to be taken against individual officers in relation to the offence of corporate killing; (b) its proposal that culpable officers should be disqualified from acting in a management role in any undertaking.

On balance we consider there are reasons why the new offence of corporate killing should also apply to individual officers who are culpable for the management failure falling far below what could reasonably be expected. We do not favour the proposal of disqualification as this proposal does not lend itself readily to officers in undertakings other than companies.

6. The Government would welcome comments on whether, in addition to the proposals made elsewhere, it is right in principle that officers of undertakings, if they contribute to the management failure resulting in death, should be liable to a penalty of imprisonment in separate criminal proceedings.

Where an individual officer is convicted because he was culpable for the management failure falling far below what could reasonably be expected, then in our view the court should be able to impose a prison sentence in cases it considers appropriate. Not only will this have a deterrent effect, but we consider it will reduce the need for the new law to specifically cater for the circumstances posed in the following sections.

7. The Government would welcome views on whether criminal proceedings should be allowed to continue after the formal insolvency of a company. We would also welcome views on whether it would ever be appropriate to permit the prosecuting authority to institute proceedings to freeze company assets pending the institution of criminal proceedings on a charge of corporate killing.

If an officer who has contributed to the management failure falling far below what could reasonably be expected can be convicted and fined or imprisoned then we are not convinced it will be necessary for the new offence to specifically address the circumstances where the company is put into insolvency.

8. The Government would welcome views on the personal liability of those in undertakings other than a company and the freezing of assets of an undertaking.

Were the Home Office proposal in the previous section to be adopted we would expect that provision would also be made where undertakings which are not incorporated are wound up.

5th September 2000

References

(1) These are reproduced in Annex A

(2) Originally, in its Consultation Paper, the Law Commission had felt that there was no justification for applying to corporations a different law of manslaughter from that which would apply to natural persons and had proposed that corporate liability for manslaughter should arise where (1) the accused ought reasonably to have been aware of a significant risk that his conduct could result in death or serious injury; and (2) his conduct fell seriously and significantly below that which could reasonably have been demanded of him in preventing that risk from occurring or in preventing the risk, once in being, from resulting in the prohibited harm (para 1.20)

(3) The Law Commission reports that (para 4.43) “as a matter of principle, the criminal law ought to hold a person responsible for unintentionally causing death only in the following circumstances: (1) when she unreasonably and advertently takes a risk of causing death or serious injury; or (2) when she unreasonably and inadvertently takes a risk of causing death or serious injury, where her failure to advert to the risk is culpable because (a) the risk is obviously foreseeable, and (b) she has the capacity to advert to the risk.”

(4) The Law Commission record (para 7.10) that the Herald Families thought that the identification principle enabled the board of directors to “construct an impenetrable defence by neglecting to make any of its members responsible for safety and therefore being able to claim that no ‘controlling mind’ had failed to perform that duty.”

(5) Clause 3 of the Bill may require particular consideration in this regard.

(6) (11a) The Health and Safety Commission will develop a code of practice on Directors’ responsibilities for health and safety, in conjunction with stakeholders. It is intended that the code of practice will, in particular, stipulate that organisations should appoint an individual Director for health and safety, or responsible person of similar status (for example in organisations where there is no board of Directors). (11b) The Health and Safety Commission will also advise Ministers on how the law would need to be changed to make these responsibilities statutory so that Directors and responsible persons of similar status are clear about what is expected of them in their management of health and safety. It is the intention of Ministers, when Parliamentary time allows, to introduce legislation on these responsibilities.

(7) A management failure is, according to the Home Office, where “activities are managed or organised in a way which fails to ensure the health and safety of persons employed in or affected by its activities”.

ANNEX

The four proposed offences

1 Reckless killing
A person commits reckless killing if:

  • his or her conduct causes the death of another;
  • he or she is aware of a risk that his or her conduct will cause death or serious injury; and
  • it is unreasonable for him or her to take that risk having regard to the circumstances as he or she knows or believes them to be.

2 Killing by gross carelessness
A person commits killing by gross carelessness if:

  • his or her conduct causes the death of another;
  • a risk that his or her conduct will cause death or serious injury would be obvious to a reasonable person in his or her position;
  • he or she is capable of appreciating that risk at this material time (but did not in fact do so), and either
  • his or her conduct falls far below what can reasonably be expected in the circumstances; or
  • he or she intends by his or her conduct to cause some 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.

3 Corporate killing
An undertaking commits corporate killing if:

  • a management failure by the undertaking is the cause or one of the causes of a person’s death; and
  • that failure constitutes conduct falling far below what can be reasonably expected of the undertaking in the circumstances.

4 Unlawful killing
The Home Office (HO) - but not the Law Commission - proposes an additional offence where:

  • a person by his or her conduct causes the death of another;
  • he or she intended to or was reckless as to whether some injury was caused; and
  • the conduct causing, or intended to cause, the injury constitutes an offence.