Corporate Manslaughter and Corporate Homicide Bill

The amendments in this group plainly address the position of individuals. The Government certainly share the objective of wanting to ensure that health and safety is given the priority it requires and deserves at all levels within a company. Health and safety management must be led from the top, and directors and other senior managers must give a clear and positive lead. However, the aim of the Bill is to find a new way of defining the circumstances in which a corporation, as distinct from individuals, should be guilty of an offence. Our focus is on corporate failures which, by their very nature, are unlikely to be the responsibility of any single individual. Where individuals are personally responsible for a death, or related health and safety failings, the law already sets out a framework for holding them to account through gross negligence manslaughter and regulatory offences. There exists a problem, however, where failings are more widespread in an organisation because the law of manslaughter hinges corporate liability on personal liability. The test in the existing law—the ““directing mind”” test—works well enough in small organisations, as many have recognised, where a relatively short chain of command can make it easier to establish that a person at the top of an organisation has been acting grossly negligently. Corporate liability can then follow. However, that does not reflect the reality in more complex organisations, where failures in the chain of management are rarely solely attributable to the acts or omissions of specific individuals. That is why the only successful corporate manslaughter prosecutions have been brought against small companies, which is the problem the Bill seeks to address. The issue is starkly illustrated by the circumstances of the Hatfield crash. In the subsequent prosecution of individual managers, either the trial judge ruled that there was insufficient evidence or acquittals were returned. Yet, in sentencing Balfour Beatty and Network Rail, the judge commented: "““I have to say that I regard the failures of Balfour Beatty … as one of the worst examples of sustained, industrial negligence in a high risk industry that I have ever seen””." That starkly illustrates the need to move to a wider basis for testing corporate accountability for manslaughter. The Bill’s focus is therefore on the question of corporate liability for corporate failure. It introduces a new way of assessing gross negligence within an organisation by taking the focus away from the conduct of individuals and placing it on gross failings in the overall management of activities within the organisation. As described at Second Reading, the test moves away from who managed the company, to how its activities were being managed. Yet this approach is not suitable for holding individuals to account; a point acknowledged by the Law Commission when they examined the issue. Its intention, with which we agree, was to create a distinct offence for organisations, which would stand in parallel to manslaughter, adapting it to their distinct circumstances. It was not intended that this should be a basis for redefining individual liabilities, however, which should remain as set out by existing offences. The argument is made that organisations do not do things, people do—fair enough—but it does not follow that organisational failures can be pinned on specific senior individuals. Having established that corporate liability will not be hinged on the acts of individuals, there are difficulties with trying to turn that situation around and establish that individuals should be liable for the newly defined corporate failure. It certainly would not be feasible to impose sanctions such as imprisonment on individuals solely as a result of the corporate conviction. Individual criminal liability must rest on the individual conduct or admissions of that person. As the law stands, individuals can already be prosecuted for manslaughter where their gross negligence causes a death. Health and safety law also provides sanctions against individuals whose conduct has contributed to health and safety failures. The new offence does not alter those provisions, a point to which I shall return. The amendments offer two variants for addressing individual liability. The first, through the amendment tabled by my noble friend Lady Turner, is to establish a distinct offence that can be committed by an individual. Apart from the general points I have made about individual liability, there are a number of reservations about this proposal. In particular, if a person is guilty of a gross breach of a duty of care that has caused a person’s death, they can already be prosecuted for manslaughter and will then be liable to imprisonment for life, a much higher penalty than the maximum of six months proposed by the amendment. I am not therefore clear that the new offence would add a significant new liability or deterrent to that provided by the law.