The Corporate Manslaughter Bill is a mere shadow of the proposals originally put forward by the Government, say lawyers. Lucy Trevelyan examines the difficulty of securing a conviction

The draft corporate manslaughter Bill – promised since Labour came to power in 1997 – was finally published in March by the Home Office, to mixed reactions in legal circles.


The planned offence of corporate manslaughter has been criticised by lawyers because it applies only to companies rather than individuals, and it does not cover unincorporated bodies or partnerships. Companies face prosecution when members of senior management ‘grossly fail to take reasonable care for the safety of employees or others’. The offence will be punishable by an unlimited fine that can be levied against government departments as well as public and private companies.


James Price, a solicitor at City firm Farrer & Co who has built a health and safety practice, says the Bill is a ‘pale shadow’ of what the government proposed in its 2000 consultation paper Reforming the law on involuntary manslaughter. Those proposals would have applied the offence to all ‘undertakings’ and sought views on whether imprisonment should be available for a separate offence of contributing to a management failure that had caused death.


Tony Woodcock, head of the investigation and regulation group at City firm Stephenson Harwood, says: ‘There may be anxiety that the [new] proposal affects only the company. There can be no liability on a director for aiding and abetting the offence. The Home Office answer to this is that individual liability is already adequately covered by the common law of gross negligence manslaughter. It is also clear the Bill does not apply to unincorporated bodies. So, partnerships – no matter how large – will not be covered.’


Mr Price says that while directors would still face gross negligence manslaughter charges if they can be fixed with individual liability, where an offence has been committed with the ‘consent or connivance’, or is attributable to the neglect, of a director, manager or similar, they may face proceedings under section 37 of the Health and Safety at Work Act 1974 (HSWA).


Duncan Astill, an associate at Bristol firm Bevan Brittan, who has studied the new Bill, says that in one sense, the proposals are merely ‘spin’ which would simply change the name of the offence for which the most serious corporate offenders are charged.


‘Instead of a large company pleading guilty to breaches of the HSWA and being fined, say, £1 million following a death, they will plead guilty to corporate manslaughter and be fined £1.2 million. While there will be some very serious reputational damage associated with such a conviction, not every case will lead to the complete collapse of the guilty corporate entity. We all still buy products from household names who have killed people through their operations.’



Nevertheless, the increased reputational risk should lead to companies taking their duties more seriously. He adds: ‘Families may also feel there is more justice in a manslaughter charge as health and safety offences are often seen as technical. However, for reputational risks to really mean something, an example needs to be set by the government. Will they start to take account of safety performance when they award lucrative construction contracts for example? The construction industry has already been calling for such an approach to procurement.’


He says the main problems thrown up by the Bill ‘will come in the courtroom’, given that it is low on definitions and there will ‘inevitably’ be some clashes on interpretation of what constitutes a management failing in different circumstances.


‘If you had a procedure but staff did not follow it, was there a management failure in not making sure that the staff followed the procedure? It is also not clear how this offence affects Health and Safety Executive prosecutions. You could argue it is an abuse of process to charge the company with two offences – corporate manslaughter and breach of the HSWA – arising out of the same circumstances.


‘But without a conviction under the HSWA, there can be no individual liability of directors or managers under section 37. So we could end up with corporate manslaughter charges actually reducing the individual liability of directors in the most serious cases.’


Mr Woodcock agrees that the Bill is too woolly in places. ‘The movement in concepts of the duty of care in tort is notorious and presents difficulties of uncertainty. It is an issue of law and the proposals make it clear it is for the judge to make any necessary findings of fact to decide whether there is a duty of care. One assumes this is to the criminal standard of proof rather than the civil standard, though no help is given in the legislation.’


He is dubious about the Bill not applying to the armed forces in the course of or in preparation for, or directly in support of, combat operations or the planning of any such operations.


‘The width of this clause will need careful scrutiny. It is legitimate to ask why the armed forces should not be liable if their standards for the protection of their men fall “far below” the standard that one would expect. Even if such a limitation is justifiable, its boundaries are uncertain. Would it, for example, prevent prosecution of the army in relation to any alleged management failings that were found at its Deepcut barracks? The arguments and the drafting are unconvincing.’


Sean Elson, a health & safety solicitor at City firm Kennedys, says it would be easier to secure a conviction under the draft Bill than under the existing legislation, since it removes the requirement to prove a ‘directing mind’ of the company before it can be convicted of manslaughter. It also allows the court to consider breaches of health and safety laws and a failure to follow guidance in deciding guilt.


He concedes: ‘The difficulty remains that to be convicted it will have to be shown that the way the organisation’s activities are managed or organised by its senior managers caused a person’s death. This will still require a consideration of the entire structure of the business and the way it organises itself, and whether it was that which caused the death.


‘The proposals try to define a senior manager – but, as with the previous legislation, whether the people whose actions are said to be the cause of the death are senior managers will still be a matter for detailed argument. The issue of causation – between the alleged management failure and the fatality – will also remain a difficult area for courts.’


Mr Price says the problems with the current law are borne out by the statistics set out in the Bill’s introduction: since 1992 there have been 34 prosecutions for work-related manslaughter and only six convictions – all of small companies.


Peter Blair, a barrister practising at Guildhall Chambers in Bristol, maintains the proposals are ‘excellent’. He represented OLL Limited, the first company to be successfully prosecuted for corporate manslaughter in the UK, in the Lyme Bay Canoe disaster case in which four children died in 1993.


Mr Blair says: ‘ I had been pessimistic that the Bill might have included complex provisions for the individual personal responsibility of managers, but it has instead limited itself to the financial liability of corporate bodies alone. This is a pragmatic and sensible solution which is to be commended, notwithstanding the knee-jerk reactions and shrill demands of some of the tabloids baying for scapegoats when tragedy strikes.’


He is disappointed, though, that deaths in custody resulting from gross breaches of the duty of care are not covered under the proposed Act.


‘The government’s argument that there are adequate alternative provisions available to deal with such issues is something the public are likely to regard as unconvincing. Appropriate care and observation in custody of the many prisoners who are mentally ill will not be improved by the deterrent that this Bill could have provided of a conviction for corporate manslaughter for preventable deaths in custody.’


He and Mr Price agree that sentencing will be difficult given that, as Mr Price puts it, ‘manslaughter is perhaps the crime with the greatest width, covering as it does death as a result of what could range from a minor criminal act to really serious assaults’.


He continues: ‘So long as death is the result, a manslaughter conviction will follow, but it places on the courts a huge problem in sentencing. If a company is found guilty, how will it be punished where the individual directors are held not to be personally liable?’


Mr Astill says: ‘Ironically, it will be the smaller companies that will face the most risk. They have the most difficulty complying with health and safety legislation, with often little knowledge of it, and they have very small profit margins, high staff turnover and little influence. They will be most exposed but will also be the most likely to have gone into administration before any case reaches court. They are unlikely to be influenced by the increased reputational risk.’


So will the latest proposals – assuming Labour is re-elected and resurrects them – achieve their objective of making Britain any safer? Mr Astill replies: ‘The large household names have more to fear but will be able to mount a stiff defence or a damage limitation exercise and come through with minor injuries. I’m not confident that a corporate manslaughter conviction will cause large companies to go out of business.


‘The real benefit will come from getting health and safety on the boardroom agenda of some of those larger companies who do not do enough at present.’


Lucy Trevelyan is a freelance journalist