Corporate Manslaughter and Corporate Homicide Bill

New clause 1 deals with one of the most fundamental points in any reform of corporate manslaughter—the need for individual liability, in respect of which there is a lacuna in the Bill. It is, in my view, one of the essential requirements of a successful reform of the law, as I proposed in my Corporate Homicide Bill. In the summer of 2003, however, the Government ruled out individual director liability in criminal law. I believe that to be a mistake. The strongest incentive on a director would be the thought that he could stand in the dock to answer for his company’s failings that led to the deaths of employees or members of the public. Organisations can kill people, as identified in the Bill, but it is the actions and omissions of people in organisations that cumulatively cause death. Directors and senior managers should be held to account for their actions. Nothing in the Bill will ensure that directors who make decisions that lead to a death will be held liable. Although the Bill might therefore make it easier to bring corporations to justice after a fatality, it will not increase the pressure on those who run organisations to take the necessary preventive measures to ensure that such deaths do not occur in the first place. If anything, the Bill should be about prevention, rather than prosecution. It should be intended to encourage people to ensure that there are no deaths, rather than to prosecute those who are responsible afterwards. Unfortunately, the Bill will not achieve that without new clause 1. We shall achieve such a preventive system only when those who make the decisions that lead to workers or the public being killed are held responsible for their actions or inaction. If company directors can face individual liability for offences under the companies Acts or frauds committed by their companies, it is right that they should face prosecution if those companies kill. Under the Bill, the only option is to prosecute for regulatory offences, but there is a strong argument that it is an abuse of process to charge a company with two offences—corporate manslaughter under the Bill and a breach of the Health and Safety at Work, etc. Act 1974—that arise from the same circumstances. But without such a prosecution and, ultimately, a conviction under the 1974 Act, directors or managers cannot be liable under section 37. Corporate manslaughter charges could, therefore, reduce the individual liability of directors in the most serious cases. With clause 16 also excluding secondary offences, one of the main requirements of reform has been rejected. After all, the purpose of the Bill must be to act as a deterrent, and without individual liability it is far less likely to do so. New clause 1 would go some way to meet the Government’s concerns about the relationship between corporate and individual liability by referring to the conduct of the company officer concerned—it is limited to the senior, top, directors—as contributing to the breach that gives rise to the offence of corporate manslaughter. The linkage between new clause 1 and the Bill is not dissimilar to the linkage between section 37 of the 1974 Act and a substantive offence by a corporate body under that Act that can make a director liable, under section 37, for the offence of the company if it is attributable to that director’s neglect, consent or connivance.