The Home Office consultation document, however, has instead concentrated on making it easier to prosecute companies. Although we support many of the changes proposed in relation to the accountability of "companies", the government has failed to give sufficient thought and attention to the accountability of company directors. It sometimes appears from the consultation document that the government believes that dangerous systems of safety management within companies take place "spontaneously" - rather than more often than not being the result of conduct on the part of their directors.

Directors and the proposed Individual Offences: A fundamental concern about the current law is that it allows company directors to escape prosecution for manslaughter. There are two obstacles in the way of prosecuting even the most culpable directors. The law requires, first, that there must be a civil law 'duty of care' between the director and the person who has died. Such a personal 'duty of care' on the part of directors however will not exist except in the most exceptional circumstances and will be particularly rare in the context of a director of a large company. It is companies, not their directors, who have the 'duty of care' towards their employees or others affected by the company's activities.

The second obstacle is the requirement that no 'omission' or 'failure to act' on the part of an individual can form the basis of criminal liability, unless there is a positive legal duty on the part of the individual to have acted. This rule is very significant in relation to directors because most allegations against them relate to their failures and omissions (not their actions), and company directors have no legal duties to act in relation to the safety of their company. These two rules have meant that although hundreds of people are killed each year as a result of corporate activities, only three directors have ever been successfully prosecuted for manslaughter.

The new individual homicide offences are a step forward. Crucially, it would no longer be required to prove that a "duty of care" existed between the accused and the person who died. This is an important change.

However, the Home Office, and indeed the Law Commission reports upon which Government's proposals were based, failed to consider how the requirement to find a positive 'duty to act' affected directors whose failures were in all other respoects seriously culpable, and requiring conviction. It is not our view that the rule itself on omissions should change. The Home Office, however, should have recognised that this rule seriously impeded the accountability of directors and that imposing safety duties upon them was the only way to ensure successful prosecutions.

It is our view, that the Home Office must immediately enact its new individual homicide offences and at the same time impose statutory safety duties upon directors. Unless both these reforms are made, company directors will continue to escape accountability for 'manslaughter'.

Directors and the offence of 'corporate killing': The government proposals suggest that company directors should be able to be disqualified if it is found that their conduct has "contributed" to the company committing the offence of Corporate Killing. The Government also says it "would welcome comments" on whether company directors should be able to be prosecuted for such conduct. It is our view that company directors should be able to be prosecuted for these "secondary" offences, and on conviction face the possibility of imprisonment. Disqualification is not sufficient a penalty. But company directors should not be prosecuted for these offences when, in fact, it is their primary conduct which has resulted in the company operating dangerously and is a cause of the death. In this situation company directors should be prosecuted for one of the individual homicide offences.

That is why we are in support of the new proposed offence of "corporate killing". However, a company should only be prosecuted for this offence when culpability on the part of company directors has been ruled out, or where the company is being prosecuted in addition to a company director. Prosecutions against companies for "corporate killing" should not be used as an excuse not to prosecute company directors.

Parent Companies: We support the Home Office proposals that parent companies should be able to be prosecuted for the offence of corporate killing when their own serious management failures have been a cause of deaths through the activities of a subsidiary company. However, this could have very little impact as parent companies have no legal safety duties in relation to the activities of their subsidiary companies. The Government must therefore look at what safety duties need to be imposed upon parent companies.

Other Organisations: We also support the Home Office's proposal to extend the application of the offence of corporate killing to a far wider range of organisations than simply "companies". It is our view that schools, hospitals and other non-corporate bodies should be able to be prosecuted for this offence

Crown Bodies: We do not however support the Government's proposals to allow Crown Bodies immunity from prosecution for the offence of corporate killing. It is our view that all government bodies should, in principle, be able to be prosecuted for this offence. Individual ministers and civil servants can under current law be prosecuted for manslaughter offences and it is difficult to see what can be the justification for protecting Government bodies - like prisons - from prosecution when very serious management failures on their part have resulted in deaths. It is just as important to deter central government organisations from placing people at serious risk of injury or death as it is to deter local government authorities (which are not crown bodies) or private companies and other organisations

Jurisdiction: We also critical of the Government's proposals concerning jurisdiction. Whilst the government is proposing that British citizens who cause the death of a person outside Britain should be able to be prosecuted in Britain for the new manslaughter offences, it is proposing that English/Welsh companies that cause death abroad should be able to escape prosecution. It is our view that companies (and other organisations) should be treated no differently from individuals. It seems extraordinary that the whilst the Home Office is proposing that British companies that commit corruption offences abroad should be able to be prosecuted in Britain, companies that commit homicide abroad should escape accountability.

Workers: Another concern about the current law is the way it fails to protect "junior employees" from manslaughter prosecution, even when their failures, or the consequences of their failures, are simply the result of them having been part of an unsafe system of work of which they had no control. The manner in which companies operate means that the immediate cause of many deaths resulting from corporate activities is the actions or failures of "junior employees" - the people who work near the bottom of a company's hierarchy. It is not company directors who have to close the bow doors, but the assistant boson, and he may not be able to perform this task - or his failure to do so may have calamitous consequences - simply as a result of unsafe systems of work established or sanctioned by the company's board of directors. Whilst there may well be circumstances where it is appropriate for these employees to be prosecuted for manslaughter, it is our view that the law needs to give them a degree of protection. The Government proposals fail to consider this issue at all.

Investigation and Prosecution: Our final concern relates to the Home Office proposals concerning the investigation and prosecution of the new homicide offences. Although as noted above, the law makes it very difficult to prosecute company directors, this is exacerbated by current practices that do not ensure that deaths resulting from corporate activities are subject to rigorous investigation. The police have not been given adequate training and there is insufficient collaboration between the police and the appropriate regulatory agencies like the Health and Safety Executive. This means that prosecutors are often in no position to make informed decisions about whether there is sufficient evidence to prosecute. In addition to this, it is also our experience that the Crown Prosecution Service (CPS) often takes a unreasonably conservative view when deciding whether to prosecute companies and their senior officers for manslaughter.

Although reform is clearly needed in this area, the Home Office proposals fall far short of the solution. It is suggesting that the investigative and prosecution responsibilities - currently in the hands of the police and the CPS - should be given to regulatory agencies like the HSE. This would in our view result in less rigorous investigation, even fewer prosecutions against company directors, and send entirely the wrong message to companies. In our view it is crucial that the police and the CPS should continue to be responsible for all homicide investigations and prosecutions and that deaths resulting from corporate activities should not be hived off to under-funded regulatory agencies with little experience in the investigation and prosecution of serious crimes.

It is our view that reform is however required to the way in which deaths resulting from corporate activities are investigated. In particular, police forces must establish specialised units to investigate these deaths.
Sentencing: The Home Office has failed to give any proper consideration to how to sentence companies and other organisations convicted of the proposed homicide offences. Unless, courts can impose proper punitive sentences that will deter recidivism, the new corporate killing offence may well have little impact. It is our view that the Home Office should establish a tough sentencing regime for companies. This would include allowing the courts to impose fines pegged to the profits or turnover of a company or organisation, and sentence public companies to 'equity' fines.

Sentencing: The Home Office has failed to give any proper consideration to how to sentence companies and other organisations convicted of the proposed homicide offences. Unless, courts can impose proper punitive sentences that will deter recidivism, the new corporate killing offence may well have little impact. It is our view that the Home Office should establish a tough sentencing regime for companies. This would include allowing the courts to impose fines pegged to the profits or turnover of a company or organisation, and sentence public companies to 'equity' fines.