A sledgehammer to crack a nut

Future corporate killing legislation should cover large corporations - while health and safety laws deal with small firms, writes Michael Caplan

The government's proposal for a new offence of 'corporate killing', following a Law Commission report advocating long overdue change, came in the wake of difficulties in prosecuting companies after major disasters with many fatalities.But if the reform set out in the recent consultation paper goes through, even firms of solicitors might be liable to prosecution.The draft legislation, on the face of it, looks attractive.

A corporation will be guilty of corporate killing if a management failure is the cause or one of the causes of a person's death, and that failure constitutes conduct falling far below what can reasonably be expected of it.There will be a management failure if the corporation's activities are managed or organised so as to fail to ensure the health and safety of persons employed in, or affected by, those activities, and such a failure may be regarded as a cause of a person's death.The draft legislation defines a corporation as including any body corporate wherever incorporated but not a corporation sole.

According to the government, the definition would 'catch the main category of body which the offence of corporate killing is intended to cover'.

It would also cover local authorities, incorporated charities, educational institutes and incorporated clubs.The Law Commission decided not to recommend extending it to unincorporated associations, which include partnerships, and hospital trusts.

But ministers are 'inclined to the view' that the offence should apply to all 'undertakings', not just corporations.

They accept that if it applies to undertakings, it will greatly broaden the offence's scope.An undertaking is defined in the Local Employment Act 1960 as 'any trade or business or other activity providing employment'.

That definition would include schools, hospital trusts, partnerships, and unincorporated charities as well as small businesses.

The consultation paper gave an example of it including 'one or two-person businesses, eg, self-employed gas fitters'.

A total of 3.5 million enterprises could be liable to the offence of corporate killing.If the government view prevails it would put at risk firms of solicitors both large and small.

They would be subjected to the stigma of a prosecution for 'corporate killing', unlimited fines if found guilty and also made subject to remedial orders, with fines for non-compliance.

The government is also prepared to look into the possibility of freezing company assets, as in drug cases.

What view would a disciplinary tribunal take of a conviction against such a partnership?The argument in favour is that there would be liability under health and safety legislation for such breaches.

But is this what was envisaged to prevent those responsible for a major disaster escaping prosecution? After the Clapham rail crash in 1988, British Rail was criticised for unsafe working practices; the Southall crash case could not proceed despite what the judge described as 'a serious fault of senior management'.

Might it not undermine the importance of a case against a large transport company, following a disaster with many fatalities, if it were to be heard with a case against a two-partner firm of solicitors - in which one employee died - proceeding in an adjacent court at the Old Bailey?Some might say the present powers to fine after a breach of health and safety regulations are sufficient to deal with the hypothetical solicitor.

If the government's view prevails, what in reality is the new offence to be called - 'killing by an undertaking'? Was this what the Home Secretary meant when he said: 'We agree with the Law Commission that the law relating to corporate liability for involuntary manslaughter is in need of radical reform'?

Michael Caplan is a partner at London-based Kingsley Napley