Corporate killing

A speech given by Anne Jones to a Hazards conference in September 2003

When this government was elected Tony Blair promised that he was going to be “tough on crime and tough on the causes of crime”. In February 1999 my son Tim, angered over the death at work of his brother Simon, wrote to Mr Blair wanting to know why no one was getting tough on the criminals who run companies and kill their employees.

On average there are over 400 work related deaths a year in this country but convictions for corporate manslaughter are rare. Why is it so difficult to bring companies and/or their senior officers to justice?

The biggest problem is the refusal of the government or the judiciary to regard a businessman in a suit as a criminal unless he has been caught fiddling the books or with his hands in the till. Killing workers just doesn’t count as a crime.

Under present law the crime of manslaughter can be committed by both an individual and a company. An individual is convicted of manslaughter when it can be proved beyond reasonable doubt that they caused a death through gross negligence. But there is no separate test to assess whether or not a company has acted with gross negligence.

There may be a multitude of failings on the part of the company, any one of which alone may not cause death but taken in combination are lethal. Yet it is not possible under present law for a court to consider whether or not these failings, in combination, constitute gross negligence.

Instead it is necessary to identify an individual of sufficient seniority to be regarded as a controlling mind or will of the company and who can also be shown to have been responsible for the system that led to a death.

This person must be tried for manslaughter and only if this individual case succeeds can the case against the company be proven. If the case against the individual fails, the case against the company fails.

The result of this is that most companies, especially very large companies, escape justice because it is so difficult to identify a controlling mind. This was the case folowing disasters such as Kings Cross and Southall.

As there is no requirement in law for any director to inform himself of the safety status of employees it becomes impossible to secure a conviction against a director or senior manager no matter how negligent or reckless their behaviour has been.

They can simply say they didn’t know what was going on. This excuse is not acceptable for fraud or embezzlement because in these cases the law requires directors to keep themselves informed.

A new offence

In 1997 Jack Straw announced that to overcome the problem the government would enact a law of corporate killing. A company would be guilty of this offence if it could be shown that serious mismanagement led to death. There would be no need to identify a controlling mind.

The Law Commission produced a draft bill which was put to put out for comment along with the consultation document on the reform of the law of manslaughter three years ago.

It was also proposed that individuals within a company should still be liable for the offences of reckless killing and killing by gross negligence in addition to the company being liable for the offence of corporate killing.

The government proposed this new offence should apply to “undertakings”, i.e. any trade or business or other activity providing employment so making unincorporated bodies liable. Crown bodies however were to remain exempt from prosecution of the new offence.

Since Jack Straw’s pledge to introduce the new law there have been more than 1,800 officially recorded work related deaths. For six years we have had delaying tactics and excuses like “we can’t rush this, we must make sure we get it right’ and “when Parliamentary time provides”.

The deaths of a hundred British people in the September 11th atrocity were used to justify extra police powers and fewer human rights for everyone else. Since that date there have been about eight hundred deaths in work related incidents and no government action.

A law on corporate killing was a Labour manifesto pledge at the last election. It was conspicuous by its absence from the last Queen’s speech.

David Blunkett promised to put victims at the heart of the criminal justice bill – except that is for victims of health and safety crime. Discrimination against victims of corporate crime indicate the government’s determination to ensure that even the most basic human right, the right to life, is to be denied to British workers in the interests if being business friendly.

Andrew Dismore MP tabled an amendment to the Criminal Justice Bill. This would have enacted the Law Commission’s proposed offence of corporate killing. Instead of accepting the amendment David Blunkett announced that the government intended to enact a law of corporate killing and that he had asked for a draft bill to be drawn up to be put out for consultation.

Do you begin to get a feeling of deja vu? If his new draft bill is produced before the end of this year we will have progressed in three years to where we were back in September 2000.

The proposed new offence of corporate killing has serious limitations. It would only target a company and not the company’s decision makers. There would be no one in the dock.

Should a big enough fine be imposed to act as a deterrent those adversely affected would be the shareholders, the employees (because of redundancies) and the customers of the company facing increased costs. Those least affected would be the decision makers responsible for the system which caused the death.

Directors must be held to account, not just companies.

In June 2000 the government published Revitalising Health and Safety. Action point 11 of this stated

“The Health and Safety Commission will develop a code of practice of director’s responsibilities for health and safety… The HSC will advise ministers on how the law would need to be changed for make these responsibilities statutory… It is the intention of ministers when Parliamentary time allows to introduce legislation on these responsibilities.”

That sounds pretty good! But what we got was voluntary guidance published in July 2001.

Then nothing until April this year when Nick Brown stated that

“the HSC expects to send ministers its advice later this year. It will set out the effectiveness of its recent initiatives on directors’ responsibilities and the case for and against further legisaltion in this area. I can assure you that the government will, as part of its consideration, evaluate the need for legislation to strengthen board accountability for health and safety”.

This is politician speak for “let’s see how much we can water it down and if possible we’ll avoid doing anything”.

I checked the Department for Work and Pensions website earlier this week to see if the new Minister for Health and Safety had anything to add. To my surprise the DWP website had no information whatsoever on health and safety or proposed reforms in legislation.

If corporate killing become law the punishment for being convicted would be a fine. Fines and other penalties should be proportional to the damage done. If a company director commits fraud the penalties are huge yet the only damage done is to the company’s finances.

With a death at work the relatives and friends suffer both emotionally and financially. Often the trauma and psychological damage is so great that some people may never work again. In addition to life long loss of earnings there is the cost to the Benefits Agency and the NHS, often for years.

It is the taxpayer and the family who pick up the bill, not the company. A death at work – unlike fraud – harms the entire country. Fines meted out to companies should reflect this damage.

A poll conducted by the British Safety Council in 2002 of the executives of some of the top FTSE 500 companies revealed that many company bosses believe profits are more important than the safety of their workers despite the prospect of strengthened legislation and unlimited fines for corporate killing.

Shareholder profits and customer satisfaction were consistently rated above worker safety.

This shows that in many cases a fine, however large, would not be sufficient for the crime committed. It would have no deterrent affect.

Those of us who have lost our children to corporate greed are not interested in large fines while the company continues as before. We want the carnage to stop.

It is proposed that the HSE and not the police should investigate the proposed offence of corporate killing.

Why should a homicide investigstion be conducted by a regulatory authority instead of the police just because the suspects are a company and/or its management? The HSE has only sufficient resources to deal with between 5% and 10% of its present obligations.

Who is going to ensure that they would be adequately resourced to deal with the new proposals? The HSE should be solely responsible for investigation. Adding the responsibility of prosecuting for the new offence in addition to their present duties is totally impracticable.

If the HSE prosecutes in the case of corporate homicide and the CPS prosecutes all other cases of homicide it will effectively decriminalise the perception of the offence.

The government suggested disqualification of guilty directors would have a punitive or deterrent effect. But how could this be enforced? When directors are disqualified for financial mismanagement the less scrupulous simply change their names and set up again elsewhere.

The best solution would be to take action against individual officers in relation to the offence of corporate killing. Those who have significantly contributed to a management failure which results in death should face a term of imprisonment.

At present, the most common way of dealing with work related deaths is to try and blame the victims or say that they should have refused to do an unsafe job. Unfortunately the DWP and the Department for Trade Industry are not terribly helpful if a worker tries surviving this way.

The Jobcentre told Simon he had to take the next job he was offered or lose benefit. If Simon had refused the job that killed him he would have been declared voluntarily unemployed and denied benefit.

The DWP and DTI argued that he would have appealed – but what would he have lived on? And would he have been successful?

I received a most illuminating letter from the DTI dated 22nd February last year in response to criticisms I’d made. It read

“It is well established in case law, however, that when a person leaves a job voluntarily it is not sufficient to prove that he or she acted reasonably in their own interest: the interests of the taxpayer and other contributors to the National Insurance fund have to be taken into account”.

So there you have it. Not only are the profits of industry more important than someone’s life, so are the interests of the tax payer. It was no doubt a great consolation to Simon as the jaws of that two tonne grab crushed his skull that the interests of the tax payer were being taken into account.

As long as government departments persist in this callous attitude we shall never have adequate reforms to the law of manslaughter and it will be forever open season in the killing fields of the British workplace.