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Research & Briefings
To: ETR Select Committee
Ffrom: Centre for Corporate Accountability

Date: 10 November 1999

Further to the oral evidence that the Centre gave to you on Tuesday 2 November, we wish to assist you by making the following points:

1. The Centre
The Centre for Corporate Accountability is a new organisation, about five months old, which brings together legal and other experts in the field of corporate harm and criminal accountability. Although the organisation itself is new, it is built upon years of work undertaken by many of those now involved in the Centre. As such, few other organisations in the country have a higher level of expertise in issues involving corporate criminal accountability.

Though containing new empirical evidence, the evidence before the Select Committee builds upon over a decade of analysis by many of those involved in the Centre. It was because many of these arguments were failing to inform public policy, that we decided to establish a new organisation.

We are in the process of applying, as a company limited by guarantee, to the Charity Commission for Charitable status. We are also in the process of applying to a number of charitable trusts for funds - though we have already received a small grant from a trust called the "Anti-Trust" which helps fund small organisations like ourselves. We have at present no other funding.

2. "Work for Lawyers"
There appeared to be an impression on the part of some of the members of the Committee, that our criticisms and reforms were directed at simply providing "work for lawyers". Although we made it very clear in our oral evidence that this was not the case, we think it crucial that this argument is repudiated. A number of points need to be made about this:
  • the proposal relating to the need for HSE inspectors to instruct lawyers rather than prosecute their own cases is grounded on the argument that HSE inspectors are not experts in advocacy or legal procedure. It is therefore not appropriate that they prosecute cases in court where they may find themselves up against highly experienced corporate lawyers. It is for this reason that the Environment Agency and Local Authorities use lawyers rather than their own inspectors to prosecute cases.

    Furthermore, it is a waste of HSE inspectors' time to prosecute these cases themselves. They should be using their health and safety expertise in either investigating more injuries or involved in a higher number of preventative inspections.

  • The implication that the Centre itself, or individuals involved in the Centre, have some sort of financial or other vested interest in the arguments made in our evidence is fanciful. The management committee is composed of six individuals, only one is a lawyer. The advisory council is composed of 20 people, of which only 6 are practising lawyers. The lawyers involved in the Centre are known to have the highest integrity who are known to undertake cases on a pro bono basis.

    In any case, the lawyers involved in our Centre would in no way benefit from any of our proposed reforms. None of them work for the Crown Prosecution Service or would be involved in prosecutions on behalf of the Health and Safety Executive. The only lawyers who may get more work if more prosecutions were to take place would be corporate lawyers - none of whom are involved in any capacity with the Centre.

  • The Centre is calling for the proper enforcement of the law. When the police, government, and other non-government organisations call for proper criminal investigations and prosecutions in relation to the commission of general offences, are they accused of trying to drum up work for lawyers?
3. "Top Ten" most Convicted Companies
One member of the Committee asked for further details about the results of the investigation carried out by Channel Four's Dispatches documentary "Bosses in the Dock", broadcast on 6 May 1999. The programme looked at companies (including their subsidiaries) with the highest number of convictions for health and safety offences in the period between 1988 to 1998. The list is as follows:

1. Tarmac PLC 75
2. AMEC PLC 39
3. BICC PLC 36
4. John Laing PLC 35
5. British Steel 34
6. Costain PLC
Wimpey PLC
7. Mowlem PLC 27
8. BET PLC 21
9. British Gas PLC 19
10. BPB PLC 18

4. Breach of HSC Enforcement Code and Code of Crown Prosecutors
Following on from our evidence, we thought that it was necessary to clarify why we believe that the HSE is currently in breach of its own enforcement code as well as the Code of Crown Prosecutors.

HSE's own code: In paragraph 19 of HSE code, a number of criteria are set out where the Commission expects that the enforcing authorities will consider prosecution:

This includes, in the second paragraph, a situation where "there is judged to have been potential for considerable harm arising from breach" (emphasis added).

If "considerable harm" - and this must surely include major injuries or deaths - has actually taken place, in a situation, where a breach of health and safety law has occurred, then HSE's own policy statement asserts that a prosecution is expected.

Yet the reality is that the HSE only prosecutes after 10% of major injuries and 20% of deaths. This clearly indicates a breach of own policy (see Paragraph 22 and 33 of Select Committee evidence).

It could also be argued that HSE's decision not to investigate 89% of major injuries also implies a breach of its policy. If it does not investigate - when an injury has been reported to it - then it is not applying its own policy which places emphasise on issue of "considerable harm".

HSE's own policy also states that "enforcing authorities should identify and prosecute or recommend prosecution of individuals, including company directors and managers if they consider that a convictions is warranted and can be secured".

It is inconceivable that the HSE has found no evidence of "consent, connivance or any neglect" against any director or manager in relation to over 47,000 major injuries and 500 deaths between 1996-8.

CPS codes: The HSE states in its enforcement policy, at the end of paragraph 19 that "the decision to prosecute must also take account of the criteria set down in the Code for Crown Prosecutors."

This sets a two tier test. (1) sufficiency of evidence and (2) public interest.
So whenever there is sufficiency of evidence, the HSE has to look to see whether there are public interest reasons not to prosecute. Paragraph 6.2 of Code states: "In cases of any seriousness, a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending to in favour"

It is difficult to see what could be the reason to justify non-prosecution on public interest factors - in relation to death and injury cases - where there is sufficient evidence.

In fact section 6.5(c) under the title, "some common public interest factors against prosecution" states that a prosecution is less likely to be needed if "the loss or harm can be described as minor". This implies that in relation to major injury or death, prosecution should take place.

Therefore when there is a major injury or death and sufficient evidence exists, and the HSE does not prosecute, this is a breach of the code. This is of course particularly serious in relation to directors and managers, where it is inconceivable that not enough evidence existed against any director/manager in relation to the deaths and injuries between 1996-8.

It appears that the statistics show that the HSE has a "resource-based" prosecution policy rather than an "evidence-based" policy - which is what their own policies imply.
Home -> Research & Briefings -> Government and Regulatory Bodies -> The Health and Safety Executive -> 1999 Select Committee Inquiry into the Work of the Health and Safety Executive -> CCA's Evidence to the Select Committee - Addendum to the Oral Evidence
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