ECIA represents contractors who build and maintain large and complex process plant such as oil refineries, chemical plants, and nuclear installations. You will appreciate that the risks involved in such work are potentially high and usually complex as well. Despite this our industry is able to demonstrate substantially lower incidence rates than the wider construction industry taken as whole. You therefore may find our comments useful as indicative of the experiences of a high risk (and potentially very high profile) activity where relatively higher standards prevail.

  ECIA recognises the existing law's shortcomings in being able to bring serious organisational failings to account and the need to resolve them through new law.

  In general terms we consider that the current draft has significantly addressed previous main concerns, particularly about the nature of gross failure. In practice (subject to our comments on 3(4) below) we doubt that there is much scope for significant "added value" improvements of principle on the face of the draft bill. Consequently existing uncertainties on important detailed practical implications will remain. Authoritative guidance on the more detailed practical intent of the legal wording (before the new law comes into effect) is therefore essential.

THE MEANING OF "CONDUCT FALLING FAR BELOW"

  Our principal concern on the previous proposals was that the nature of "conduct falling far below what can reasonably be expected" was not defined. This could have led to inconsistent and unfair convictions. In particular there was a real danger of conviction being driven by a public appetite for it rather than genuine culpability.

  The new proposals are much enhanced in this respect. The elements in clauses 3(2)(a) & (b) provide a clear and authoritative basis for establishing the culpability or otherwise of those accused which seems fair and reasonable.

  We are concerned though at the potential effect of clause 3(4). As drafted this provides a jury with unrestricted licence to have regard to any other matter. They should make their decisions on the basis of the evidence presented to them in court. 3(4) endorses them in taking account of any other matter they consider relevant whether it emerged in evidence or not—and this could be especially significant in high profile cases. Presumably special attention is drawn to the matters in 3(2)(a) & (b) because they are the most important and thus merit explicit reference on the face of the law.

  There needs to a clear indication that the 3(2)(a) and (b) criteria are the principle ones and that others, if they are available, should not override them. This could be achieved if clause 3(4) read:

"Having due regard to paragraph 2, the jury may also have regard to any other matters they consider relevant to the question."

  Paragraph 18 of the explanatory notes summarise what a gross breach is. There is an equal need to describe what it is not. Paragraph 32 (on page 13) suggests that it does not mean cases where "appropriate standards are not quite met". This could mean all things to all men. Take a company operating an inherently high risk activity which delivers 99.5% compliance but nonetheless experiences a fatal explosion. A literal interpretation of "not quite met" would exclude this organisation. On the other hand many would argue that the high risk environment meant that anything less than 100% was a gross failure. They might then be equally guilty as manifestly poor health and safety performers who only achieved 50% compliance in less inherently "risky" situations. That does not seem the underlying intention, but such expectations could well be provoked, particularly where high profile incidents are involved. (Perversely enough this could have the effect of making it appear more "cost effective" amongst the badly motivated to aim at 50% compliance rather than 99.5%)

  An important part of the overall package should be more detailed explanation of phrases such as "when appropriate standards are not quite met". Contrasting examples of what is gross and what is not would be particularly helpful. Since criminal health and safety cases are relatively rare in the Crown Courts, such explanation would be as helpful to the judiciary as it is to the public in clarifying the intentions of a new Act of Parliament.

THE MEANING OF SENIOR MANAGER

  The underlying intention appears to be limiting scope to those who are genuinely responsible for deciding and ensuring that appropriate standards are delivered on an organisation-wide basis. This is undoubtedly correct in principle, but we anticipate much confusion in practice and paragraph 15 in the explanatory notes illustrates where it could arise.

  We suggest that more detailed indications of who are and are not senior managers would be most useful in supporting the new legislation. If not we can forsee cases going to court and failing because of a mismatch between the seniority of the manager involved and what he or she could have been expected to do or know in respect of the harm that gave rise to the death. In the worst case such uncertainties could substitute for the difficulties in establishing a "controlling mind" in the existing corporate offence.

14 June 2005