Talk given by Anne Jones

TUC/CCA Conference, 8 July 2002 on
“Law Enforcement and Corporate Accountability”

The Agenda for Change

There was a time when I, like many people, assumed that there was a law in this country to protect people from injury and death resulting from work related activities and that it was enforced, so that the negligent individuals responsible for death and disaster would be punished, just as those responsible for a company’s finances are prosecuted, imprisoned and barred from operating in the same sphere if they are found to be indulging in financial malpractice. 

I naively assumed that those cases where justice was not seen to be done were the exception.  The lack of action following major disasters like Zeebrugge, Kings Cross, Clapham Junction and Southall began to shake my faith in the criminal justice system.  It was shattered entirely following the arrival, at my door late at night on 24th April 1998, of two policemen who curtly informed me that my son, Simon, had been killed that morning.  It was the following afternoon before I discovered that he had been killed at work and a further three weeks before I knew the names of the companies responsible – whereas a careless driver causing death would be immediately suspected of committing a crime, a careless employer causing death as a result of his activities appears to be beyond reproach.
 
Simon’s death is a devastating loss to us; it is nothing short of a national scandal that more than 400 families every year have to endure the same pain and trauma that we are experiencing for similar reasons.  Although details of deaths at work vary, every bereaved relative I have spoken to has been distressed by the lack of justice and the failure to ensure that such deaths are not repeated.  There can be no doubt that we need improvements to safety, law enforcement and corporate accountability.

Simon’s case illustrates much that is wrong in the present system.  Simon was sent by an employment agency to a company called Euromin Ltd.  He had no experience of working on ships; yet on arrival, with no instruction or training, he was sent to work in the hold of a ship. 

The hazardous job of stevedore was made even more dangerous because James Martell, the company’s manager, to save the time needed to change over to a safe lifting hook, had had hooks welded inside the grab bucket of an excavator.  Chains were attached to these hooks and they hung down through the open grab; the men below had to attach the lower ends of these chains to the handles of bags of rumble stones in the hold.  The maximum distance between the bottom of the grab and the men’s heads was three feet.  This distance was often reduced because of the rise and fall of the ship due to the natural movement of the sea on the incoming tide and due to the disturbance created by passing ships.  There was no way of ensuring that the grab bucket remained open, the excavator had no positional accuracy and the excavator driver could not see into the hold.  The grab came in too low on several occasions and on one of these it also closed, trapping Simon’s head. He died from massive head injuries.

Despite the clear negligence involved, we had to fight for more than three years to bring Simon’s case to court.  This delay was one factor in the failure of the prosecution; a second was the way the law is drafted.  It is so ineffectively worded and enforced that it fails in its object – to protect workers’ lives. 

The case finally came to trial in November 2001.  Sadly Mr Martell was acquitted of manslaughter and so the company was automatically cleared of Corporate Manslaughter.  A major argument put forward by the defence and reinforced by the judge in his summing up was that Mr Martell could not have been expected to realise that the chains were 2 feet shorter than usual that morning (even though the system was potentially fatal with chains 3 feet longer!).  He also pointed out that it was not Mr Martell’s legal responsibility to inform himself of the safety regime on site and even if he had spent all day on the golf course instead of addressing safety, his only duty would be to the company.

This state of affairs is morally wrong, it is a parody of justice and confers no protection whatsoever on workers.  Clearly such miscarriages of justice must be avoided.  The law must be amended, so that it is the legal obligation of directors to ensure safe systems of work.  No longer should they be able to argue, as Mr Martell did successfully, that although he had designed and implemented the system of work, which killed Simon, he was not aware of exactly how it was being used.   A new law could permit decision makers to delegate the implementation of safe systems of work to management, but it must be the duty of directors to see that they are adhered to, just as it is their duty to ensure that management are not defrauding the company.  Only by having a named director responsible for safety will we be able to ensure that safety issues are taken seriously and raised at board level.  

We need a clear line of accountability.  If the named decision makers knew that they were vulnerable to prosecution should they fail to carry out their duties correctly, they would have a vested interest in the safety of their workers.  It is important that directors can be held to account and not just companies.  Directors must have a clear duty regarding worker safety and must be held to account when they are negligent or reckless.  

The proposed reform of the law, whereby the present law of involuntary manslaughter would be abolished and replaced by two different offences of “reckless killing” and “killing by gross carelessness” is attractive in that it helps clarify the position when the offender did not actually intend to kill.  In addition, a new law of “Corporate Killing” is proposed broadly corresponding to the proposed offence of killing by gross carelessness.  As it removes the problem of identifying a controlling mind it might, in some circumstances, make a company more accountable, but it has serious limitations. 

This law would only target a company and not the decision makers responsible for the company’s activities.  There would be no person in the dock and should a fine be imposed of sufficient magnitude to have a deterrent effect, those adversely affected would be the shareholders, the employees (because savings to counter the effect of reduced profit almost invariably come from imposed redundancies) and the customers of the company who would face increased costs.  Those least likely to be affected would be the decision makers responsible for the system, which caused the death.  Therefore to avoid the problem of the decision makers escaping accountability, we demand the imposition of legally binding safety duties on directors.  The introduction of such legal obligations would ensure that the legislation of Corporate Killing was used appropriately and not as a means of scapegoating the entire company because of the acts or omissions of one or more of its decision makers.

For a fine to have a deterrent effect, it would need to be so large that it threatened the existence of the company and so caused a major revolt by shareholders.  To cause a company to fail because one or more of its decision makers had failed to address the need for ensuring worker safety would punish the innocent as well as the guilty.

There may be cases where it is appropriate to prosecute the company and to impose a large fine; but there are many cases, where a fine, however large, would not be a sufficient response to the crime committed and would have no deterrent effect.  Those of us who have lost our relatives and friends to corporate greed are not interested in large fines while the company continues as before.  We want the carnage to stop.

The present system is not only unjust to workers; it is also unjust to those companies who take a responsible, conscientious attitude to worker safety.  Because these companies spend more on safety, they have larger overheads and therefore are placed at a competitive disadvantage alongside their negligent counterparts.  There is something radically wrong with legislation, which allows those who have a cynical disregard for workers’ lives to be placed at a competitive advantage.

The situation would not be so dire if Health and Safety law were rigorously enforced and the Health and Safety Executive resourced at such a level that it could carry out at least one inspection per year on every undertaking for which it is responsible.  Sadly I cannot foresee this ideal ever being achieved.  More frequent use of prohibition notices and improvement notices would be preferable to the present verbal warnings and advice.  The HSE has been giving the business world the kid glove treatment for far too long even to accepting assurances of improvements and compliance with the law over the telephone instead of investigating the work in progress and making an impartial assessment of whether or not the system is safe.

The best deterrent to work related deaths is likely to be brought about by the imposition of legally binding safety duties on directors combined with more rigorous enforcement of Health and Safety law, more frequent prosecution of those who break the law and more effective penalties including custodial sentences for those who kill by their negligence.