2.1 |
Focusing Attention on
Directors: In our view, it is crucial that
public policy in this area focuses upon assessing
and influencing the conduct of directors. It is
often forgotten in discussions about safety and
"corporate accountability" that company
directors control companies, they decide what
companies can and cannot do, and it is their conduct
that ultimately determines whether or not a company
operates safely. In our view, although the accountability
of "companies" is important, public
policy demands that criminal sanctions should
be primarily directed at the criminal conduct
of company directors. |
2.2 |
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.
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2.3 |
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.
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2.4 |
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.
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2.5 |
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.
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2.6 |
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.
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2.7 |
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'.
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2.8 |
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.
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2.9 |
Companies: Our view
on company directors does not mean that we think
that "corporate" accountability is unimportant.
It is wrong that the only way in which a company
can be convicted of manslaughter is through the
conviction of the company director or senior manager.
There will be many situations where a death has
been caused by a company's management systems
operating dangerously and no director is either
to blame or to blame sufficiently to allow a manslaughter
prosecution. In such a situation it is important
that the courts can assess whether the company
itself should be prosecuted for a manslaughter
offence. |
2.10 |
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.
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2.11 |
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.
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2.12 |
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
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2.13 |
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
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2.14 |
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.
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2.15 |
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.
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2.16 |
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.
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2.17 |
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.
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2.18 |
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.
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2.19 |
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.
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