CCA's Assessment of the 2007 Act
Holding large and medium sized organisations to account
The new Act – with its creation of a new test of organisational liability – should make it easier to prosecute large and medium sized organisations. The particular positive elements of the new test are
- it is based around evidence of a serious management failure, not on serious individual failures;
- there is a clearer test of whether or not the failure is gross – namely, “falling far below what can reasonably be expected in the circumstances”;
- there are clear factors that the jury must take into account – seriousness of the breach of health and safety law – which will make it more straightforward for a jury in its consideration of the organisation’s guilt;
- there are additional factors that the jury can take into account including whether the organisation has breached any health and safety guidance, the organisations’s ‘attitudes, policies, systems or accepted practices.
However, there is no certainty that it will make it easier to prosecute large and medium sized organisations, as there remains some doubt about how the Crown Prosecution Service (in deciding whether or not to prosecute) and the courts will interpret the requirement that a ‘substantial element’ of the management failure must be at a senior management level. Assuming that this test works in the way that the CCA thinks and hopes it will, the new test should be an important advance in increasing ‘corporate’ accountability following deaths.
The issue of sentencing
Making it easier to prosecute is one thing. Making convictions have real impact is quite another. At the end of the day, the success of the Act will depend on the size of the fines that the courts will impose on convicted organisations. The Sentencing Guidelines Council is now drafting guidance on this. A consultation document produced by the Sentencing Advisory Panel (SAP) – which advises the Council - however proposed fines of between 2.5% and 10% of an organisation’s turnover - a level of fine which, many would argue, fails to reflect the seriousness of the sentence that would be imposed upon an individual convicted of manslaughter. (See CCA response to SAP). This is therefore troubling. Whilst conviction should not result in large or medium sized companies being forced to shut down (except in the most extreme of cases), the penalty imposed must be very significant indeed in its punitive and deterrent impact.. The final guidelines on this will not be produced until the end of 2008.
Other positives … but
One should note that there are also clear benefits with the offence opening up to partnerships, police forces and crown bodies. Indeed, this is the first criminal offence to apply to crown bodies and to police forces! However, in relation to many activities of these public bodies – law enforcement, emergency services, military operations, child protection issues, probation and statutory inspections – gross failures will only be able to result in prosecution of the public body where the death was a gross failure in its responsibilities as an employer and occupier, not in relation to its responsibilities as a provider of services and how this impacts on members of the public. That is to say, if an employee dies, prosecution can take place; if a member of the public dies as a result of provision of services, the public body cannot be prosecuted. Furthermore:
- in relation to certain policing and military activities, there is total exemption;
- if any death results from high level policy decision making relating to the allocation of resources, the public body has immunity; and
- many public bodies will escape prosecution simply because they do not owe a civil law duty of care.
These exemptions are clearly very disappointing and will result in inappropriate anomalies. In another ‘Hillsborough disaster’ – the police force could be prosecuted if it resulted in the death of a police officer, but not if it resulted in the death of a member of the public. In addition, it also means that in a situation where the public body can not be prosecuted – although there were clear failures on its part – the blame will fall solely on individuals.
In addition, crown bodies (that are not separately incorporated by statute) can only be prosecuted if their names are mentioned in the schedule. Whilst all government departments are mentioned, there are many bodies which are part of government departments that are not. So whilst the Home Office is mentioned, the prison service is not, and nor are individual prisons. This means that only the government department and not the organisation itself can be prosecuted. This will make prosecutions involving these kinds of deaths very difficult indeed as the senior manager failure will have to be at the government departmental level (i.e. Home Office), not at the level of the sub-organisation (i.e. the prison) within the department. Deaths resulting from very serious failure (including at a senior manager level) at the level of the prison, will only be able to result in a prosecution if a substantial element of that failure was at a senior management level of the Home Office.
Parent company immunity
One impact of the offence being based around the need for a civil law duty of care is that it means that parent companies cannot be prosecuted for deaths resulting from the activities of its subsidiary bodies – however serious the failure of the parent company. This is despite the Government in 2000 making it very clear that this was necessary.
Further delay before application
One significant concern we have about the Act is that it will not apply to any death – even if it took place after 6 April 2008 - unless all the failures necessary to prove the offence also took place after that date. This will mean that prosecutions for this offence will not start for a very long time indeed – particularly for large organisations. Whilst the Act should only apply to deaths after 6 April, it should apply if the management failures took place before then. The provisions that allowed this to happen were not raised by any member of Parliament or member of the Lords.
Other smaller concerns
There are some other disappointments: First, the fact that the offence does not apply in relation to any harm (resulting in a death) that takes place outside the UK – even if the management failure took place in the UK. This creates a difference in treatment between organisations and individuals (who can be prosecuted for manslaughter that they commit abroad). However, in the Lords the Government spokesperson did say, that “there may well be a case for looking at jurisdiction further down the line.” Second, the requirement for private prosecutions to have the consent of the DPP in order for them to proceed – even though the Law Commission and the Home Office’s first consultation document considered the requirement for consent unnecessary.
The question of individual culpability
Many have criticised the new Act in failing to deal with individual accountability – in particular in relation to the conduct of directors and managers. The Act only allows for the prosecution of organisations - and individuals cannot be prosecuted for even contributing to this offence (although the ordinary law of manslaughter will apply to them). For those who think that prosecuting organisations is pretty worthless – and that the only thing that will ensure proper accountability and deterrence is the prosecution of directors and managers followed on conviction by their jail sentence – this new Act is "the dampest of damp squibs."
It is absolutely the case that the lack of individual accountability for directors and senior managers is a real problem. No director or senior manager of a large or medium sized company has ever been convicted for either a manslaughter or a health and safety offence. The government must respond to this – particularly in relation to imposing duties on directors. And during the course of debate the Government appeared to commit themselves to serious consideration of reform.
However, the failure to create an individual offence in this Act is not decisive (for us) in our assessment of it. It is important to be able to hold organisations, as well as individuals accountable under the criminal law, particularly in situations where management responsibility is diffuse and no individuals can be shown to have individually failed in a significant way. There is however a caveat to this. It depends on the court imposing, on conviction, very significant fines. Unless this happens, the Act will certainly be a “damp squid”.