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To:
ETR Select Committee
From: 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:
| |
COMPANY
CONVICTIONS |
NOS
OF |
| 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
|
30 |
| 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.
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