The Royal Society for the Prevention of Accidents (RoSPA) agrees that there is a need to reform the law so that bodies corporate can be prosecuted and found guilty of the offence of manslaughter. It has taken account of initial views expressed by other representative bodies (see annex one[5]).

  RoSPA agrees that in practice prosecution for this offence should be reserved for the worst cases of criminal failure by such bodies to safeguard life. Criteria for this level of gross failure must be as transparent as possible.

  RoSPA is concerned however that the new offence may in practice introduce three perceived levels of compliance with safety duties: just above "far below", "so far as is reasonably practicable" and "good practice". The Government must uphold the importance of good practice standards of compliance.

  The majority of cases of death at work due to corporate safety failure should continue to be prosecuted, where appropriate, under the Health and Safety at Work (HSW) Act.

  Successful prosecution for the proposed offence should also involve subsequent prosecution of relevant directors, where appropriate, under the HSW Act. In this context, where prosecutions are not being taken under Section 37 consideration should be given to prosecuting such directors for breach of their duties as employees under Section 7 of the Act (see recent article at annex two[6]).

  The tests for "far below" should be based on a range of considerations, including the extent of non-compliance with legal safety requirements, implementation of relevant and authoritative guidance, response to internal safety advice, results of earlier investigations, alerts etc.

  At the same time these tests should not be set at such a level that production, for example, of basic documents detailing health and safety management policy, organisation and arrangements would be all that was necessary for a defendant to mount a successful defence.

  Organisations being prosecuted for the offence which had policy, organisation and arrangements on paper but chose not to implement these it practice might be regarded as guilty as those who had made no such provision (or even more so).

  RoSPA agrees that determination of guilt should be based on the nature and extent of gross failure by senior managers to manage health and safety. This in turn however requires the Health and Safety Commission to provide greater clarity about the existing health and safety responsibilities of directors in law, including not only the effect of Sections 2 and 3 the Health and Safety at Work Act and directors' liabilities under Section 37 of this Act but their duties under Section 7 as employees. Guidance on the role of directors and on the role of senior managers as set out in HSC's "Director Guidance", relevant parts of the ACoP to the Management of Health and Safety at Work Regulations and HSE's guidance HSG65 all needs to be brought together into a new ACoP on directors' health and safety duties. Agreement on such an ACoP however should not however be allowed to delay introduction of the proposed changes. Indeed the introduction of the changes would be an added reason for the ACoP to be produced.

  Although manslaughter is a "harm" offence, a useful part of the test of "far below" might be a requirement to show, inter alia, that risk levels were well inside the "intolerable zone" of the ALARP triangle (see HSE's "Reducing Risk Protecting People").

  The offence should apply to and enable penalties to be imposed on all guilty organisations, including partnerships and public sector bodies, including Government Departments and Agencies. Penalties for public bodies found guilty of the offence should involve greater used of remedy powers since large fines merely deplete funds available for public expenditure or represent the transfer of funds within the State.

  For guilt to be established it should not have to be shown that senior managers were unaware of the risk or that the organisation had sought to profit from its failure to put appropriate safeguards in place.

  The tests of guilt should focus on the nature and extent of senior management failure, both individually and collectively. As mentioned above, improved guidance is required to enable the legal profession to understand how failures in safety risk management systems can potentiate disasters and the extent to which failures in such systems can be attributed to the failings of senior managers. This is important in proving that specific or general management failure(s) caused the victim's death.

  It should be made clear that criteria for establishing senior management failure will apply to all senior managers within scope and not simply any board level director(s) with specific responsibility to champion safety within the organisation. The definition of what constitutes senior management needs closer attention to ensure that this concept is fully applicable to all forms of organisation within scope of the proposed offence.

  The power to make remedial orders is strongly welcomed and should be extended to sentencing for all health and safety offences. These should not be used to remedy immediate shortcomings since these should already have been dealt with through the use of notices by health and safety enforcing authorities. Rather the powers should be used to require "health and safety management regime change", with evidence being produced to the courts via independent and competent third parties of problems to be rectified and of the adequacy of action taken (at the court's instruction) to achieve this.

  Appropriate remedial action taken by the company in the light of the death(s) concerned should be taken into account in mitigation of sentence.

  The offence appears to be constructed to deal with death due to accidents rather fatal damage to health due to sustained exposure to harmful agents or diseases caused accidentally but with long latency. This may require closer examination.

  Clarification is needed as to which bodies will take the lead in investigations following deaths which might attract prosecution for the offence. The Health and Safety Executive have particular expertise in determining root cause in an organisational setting. It is important that this is harnessed in any co-operative arrangements to be established between enforcement bodies to deal with death that may have been attributable to a lack of care by an organisation.

14 June 2005

6   Not Printed: Directors' do have duties. "Parting shot" from "OS&H" magazine. RoSPA, May 2005. Back