INTRODUCTION

  Disaster Action, an organisation formed as a result of many disasters in the late 1980s, has long been dedicated to encouraging safety in the behaviour of corporations. One of the ways in which this can be achieved is by providing a legal framework within which companies that break the criminal law are properly investigated and prosecuted.

  We therefore welcome this Government's proposal to legislate in this area, in the hope that the reform will not only bring to account those companies whose conduct has been the cause of loss of life, but also as a means of putting safety further up the boardroom agenda.

THE OFFENCE

  We welcome the introduction of a new, specific offence, which is aimed at failings in the way activities are managed by the company at senior level, rather than focusing on the guilty mind of any individual in the company. It is our experience that many of the deaths with which we have been associated were the result of such poor management.

THE ORGANISATION'S ACTIVITIES

  The Bill proposes that the way in which the organisation's activities are managed or organised by senior managers must be the cause of the death. Generally this is a welcome provision, which quite rightly lays the emphasis on the company's usual way of operating.

  The clause could, however, be more explicit in terms of situations where the cause of death may not have been due to the way senior management had actively organised its activities, but simply failed to discourage a certain kind of behaviour, or allowed the existence of a culture of risk. It is notoriously difficult to establish liability for omissions rather than acts.

  We would therefore support an amendment to the Bill which could be modelled on the Australian Criminal Code 1995, for example, that encompasses the notion that a corporate offence may be committed where "a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the non-compliance with the relevant provision."

  In the case of The Herald of Free Enterprise, it may have been difficult for the prosecution to prove, beyond any reasonable doubt, that the way in which the organisation's activities were actively organised by its senior managers caused the deaths, rather than the act of the individual boson. It would have been possible to establish, however, the existence of a corporate culture that tolerated or led to non-compliance with health and safety provision.

THE CAUSE OF DEATH

  It is right and proper that the new law should look to failures by senior managers rather than focus exclusively on the acts of individual employees. A number of government enquiries following disasters have identified that the "cultures" of risk or sloppiness within organisations originated from the highest levels of management.

  We are, however, concerned that a jury may find it difficult to convict the organisation of manslaughter, or actually causing the death, without further guidance within the legislation itself.

  In the Herald of Free Enterprise disaster of 1987 the 192 deaths were due, in terms of factual causation, to the ship sailing with its bow doors open, due to the omission of the assistant boson. In the Kings Cross fire of the same year, the 31 deaths were due to a dropped match and the accumulation of grease and detritus under wooden escalators. In the Piper Alpha disaster, in 1988, the night staff failed to realise that the previous shift had removed a safety pump.

  In each of those, then, the deaths had an "immediate cause". Extensive public inquiries later revealed that senior corporate behaviour was, in fact, to blame for encouraging or, at least, failing to discourage the risky behaviour of employees. The Sheen report, for example, stated: "A full investigation into the circumstances of the disaster leads inexorably to the conclusion that the underlying or cardinal faults lay higher up in the company."

  The difficulty with the present proposal is that, in the context of a criminal court, establishing, beyond any reasonable doubt, that the faulty behaviour of "senior managers" actually caused the death will be much more difficult than within the setting of a government inquiry.

  The Law Commission's report of 1996 raised these concerns, and recommended, at paragraph 8.39, that the legislation should "include an express provision to the effect that in this kind of situation the management failure may be a cause of the death, even if the immediate cause is the act or omission of an individual". In the draft Corporate Killing Bill, this appeared both in clause 1(1)(a) "a management failure is the cause or one of the causes of a person's death" and in clause 1(2)(b) "such a failure may be regarded as a cause of a person's death notwithstanding that the immediate cause is the act or omission of an individual".

  Disaster Action is very familiar with the pattern of immediate causation and underlying corporate guilt, and we are therefore very concerned that this draft Bill contains no provision dealing with this issue. It is our view that it may be extremely difficult for the prosecution to persuade a jury to convict a corporation of manslaughter without the legislation containing the clause previously recommended by the Law Commission.

AWARENESS OF RISK

  The new Bill rightly focuses on senior management failure, in terms of finding the corporation itself guilty of an offence, and a senior manager is defined in clause 2 as a person who makes decisions about or actually manages the company's activities.

  Clause 3(2)(b) requires, however, that the jury, when considering whether they have committed the offence, takes into account whether such senior managers were "aware, or ought to have been aware, of the risk of death or serious harm posed by the failure to comply" with any relevant health and safety legislation or guidance.

  In many situations this may well be something that the prosecution is able to prove, due to reports and recommendations made to management as a result of previous failures. There may be a number of cases, however, where this provision may simply perpetuate the problems which exist in the current law, and which this Bill is meant to address.

  The Law Commission, at para 8.2, in looking at the requirements for the offence of killing by gross carelessness (for individuals), that "the risk of death or serious injury would have been obvious to a reasonable person in her position", stated that "it cannot appropriately be applied to corporations" (para 8.3). It went on to say that "this will not prevent juries from finding (in general terms) that the risk was, or should have been, obvious to an individual or group of individuals within the company in deciding whether the company's conduct fell below the required standard. We are simply concerned, in formulating the new offence, to remove the legal requirement under the present law to identify individuals within the company whose conduct is to be attributed to the company itself."

  Whilst we recognise that the proposed legislation only requires the jury to consider this as one of a number of factors, it is reasonable to suppose that such a finding will be seen as a legal requirement and that it will always be open to the defence to argue that, where this requirement is not met, the jury cannot convict.

  The danger here, therefore is clear: having the legal requirement for the jury to consider, and conclude positively, in order to be in a clear position to convict, that senior managers had, or ought to have had, an awareness of the risk of death, presents an additional evidential burden for the prosecution, and may return the law, to an extent, to the difficulties in finding a guilty "directing mind" that have caused the failure of most criminal prosecutions of companies.

PROFITING FROM THE ACT

  Clause 3(2)(b) also requires the jury to take into account whether the organisation sought to profit from its failure to comply with health and safety legislation or guidance. Whilst in many cases the desire to profit (financially or otherwise - the clause is not clear) has been found to cause corporations to "cut corners" in terms of health and safety, the presence of this particular requirement also adds a burden for the prosecution to persuade the jury that this was indeed the case. If the prosecution is unable to do so, the jury may feel unable to properly convict.

PENALTIES

  The addition, in the Bill, of remedial orders to possible unlimited fines, is welcome, as it will help to achieve one of the objectives that Disaster Action has long campaigned for, namely, that whilst the dead cannot be brought back, the living should do everything in their power to ensure that preventable tragedies do not re-occur.

  In terms of the law's other purpose, however, it is unlikely that large corporations will be deterred by the prospect of a fine or a remedial order. Whilst we recognise that the fact of prosecution alone is likely to punish a corporation by producing unwelcome adverse publicity, the opportunity for a court to order corporate probation could be an additional incentive for company management to avoid "slipping back" into unsafe ways of operating after public attention has shifted away from its activities.

ALTERNATIVE VERDICTS

  The Law Commission established, quite appropriately, in our view, that there may be cases where a corporation is acquitted of the offence of manslaughter but guilty of an offence under the Health and Safety at Work Act 1974. It is our view that, in those cases, it should be made clear under the Bill that the jury, on a charge of manslaughter, has the power to convict the corporation, instead, of the lesser offence under the Health and Safety Act.

CONCLUSION

  Disaster Action welcomes many of the provisions in the Corporate Manslaughter Bill. It is an important step towards recognising that the failings of senior management in large corporations can cause deaths, and that, where this has occurred, there should be an opportunity in law to successfully prosecute the corporations guilty of gross negligence.

  It is also our view that only a small number of corporations conduct themselves in such a way, and therefore it is unlikely that the courts will be flooded with prosecutions. It is therefore absolutely crucial, that, where the Director of Public Prosecutions does make the decision to indict a corporation, the law leaves no room for a guilty company to escape liability through technical difficulties in the wording of the legislation itself.