Corporate killing misses the mark 1

United Kingdom
Published in The Lawyer, 12 June 2000

The government has at last revealed its proposals for overhauling the intricate law of manslaughter. The result would be a sub-division of different offences of killing involuntarily, with a special formulation for ‘Corporate Killing’. The proposal is based substantially on the Law Commission’s earlier recommendations for this offence.

This is encouraging news for the baffled law student, the busy practitioner and the judge faced with a difficult summing up. But as we know, what is good for lawyers is not always for the greater good.

The intention is that all ‘undertakings’ - not just corporations but charities, hospital trusts, partnerships, small businesses, local authorities - could be convicted more easily, with a reduced evidential burden on the prosecution.

The offence would be committed where a management failure is the, or one, cause of a person’s death, and that failure constitutes conduct falling far below what can reasonably be expected. A failure would be treated as causal for these purposes even though the immediate cause of death was the act or omission of an individual.

It is easy to see why the TUC and victims action groups have lobbied for this approach. It side-steps the need to show negligence to a recognisable criminal standard by any natural person really responsible – the controlling mind or minds of a company (the doctrine of ‘identification’ which has been blamed for high profile prosecutions that have collapsed). It would not be necessary to show that the risk was obvious, or that the defendant was capable of appreciating the risk at the time.

Companies and other organisations (unlike individuals) will not be tried by a jury of their peers who share their common experience, and could be convicted purely on the basis of hindsight. Since any management should aim to avoid killing its staff or customers juries will not need much persuading that an accident, especially one involving multiple fatalities, could have been avoided by some means or other.

Deterrence was cited by the Law Commission as a key reason for its recommendation of the offence. One campaigner has asserted that corporate criminals are uniquely deterable because they calculate risks rationally and stand to lose valued possessions and status.

How deterrence works at the level of inadvertence and unconscious risk taking is not explained, either for individuals or more importantly hierarchies of individuals with collective responsibilities. No evidence for the ‘marginal’ deterrent effect of the new offence over and above that for the existing threat of manslaughter or other prosecution has ever been given by its supporters.

It is claimed that this will restore public confidence that companies can be held properly accountable. The Home Secretary believes that “all too often organisations have been able to escape liability for errors where if an individual had been responsible they [sic] would have been convicted”. In fact, we already have tough offences for any undertakings which fail to ensure the safety of their staff or the public, where the onus is on the defendant to prove that it took all reasonably practicable precautions. We already have offences of failing adequately to assess any risks, not implementing appropriate precautions, and failing to monitor and review their effectiveness.

These offences are set out, in terms, in the Health and Safety at Work Act 1974. If companies are really unaccountable and escaping liability some serious questions need to asked of the government itself about the value of its own Health and Safety Executive charged with enforcing these laws and how it uses its £180 million annual budget.

The danger is that in effectively relegating the mainstream enforcement of health and safety laws to an inferior status the government is reinforcing the myth that statutory offences are not really criminal: this is true only in that it is so widely believed. Over thirty years ago Lord Reid in Sweet -v- Parsley famously draw a sharp distinction between “truly criminal acts” and acts not in the public interest which are prohibited under a penalty. As Professor Sir J C Smith has observed, this is a fallacy and a conviction for a statutory offence can hardly be equated with a fine for failure to return a library book.

Only recently has the Court of Appeal led the way in disposing of this conventional wisdom by issuing guidelines for meaningfully high levels of penalties for corporate offenders. Six-figure fines are becoming regular events in prosecutions of large organisations and the appearance of a major train operator at the Old Bailey and the imposition of a fine of £1.5 million cannot be characterised as lack of accountability.

The justifications for the Corporate Killing offence are weak and the government is dabbling in this area without a coherent policy. Its current plans have more to do with politics than serious law reform or promoting health and safety.

Mark Tyler is a partner at CMS Cameron McKenna.