Steve Tombs

David Whyte

6 March 2015

By Professor Steve Tombs, Open University and Professor David Whyte, Liverpool University

Steve Tombs and David Whyte analyse Richard Baker MSP’s new draft Bill for the Scottish parliament and consider whether it could be a model for reform across the UK.

The Corporate Manslaughter and Corporate Homicide Act (“CMCHA”), rolled out across the UK seven years ago to radically improve accountability for corporate killing, has so far failed dismally to improve accountability for deaths at work.

Part of this failure has its roots in the exemption guaranteed to senior managers and directors in section 18, titled “No Individual Liability”. Indeed, it was only after this exemption was inserted by the Government during the legislation’s parliamentary progress that widespread business support (including the support of the Institute of Directors) for the new law was secured. v

The key issue at stake here is that, in the absence of any senior officer being held directly accountable, the company – or the corporate person – is the only person that ends up in court, punished for this crime. The law therefore enables those that make the key decisions and are most remunerated for making those decisions to escape liability for killing workers and members of the public.

In England and Wales, the common law offence of gross negligence manslaughter still exists as a mechanism to hold individual to account for their part in corporate killings. In Scotland, the equivalent is the common law offence of culpable homicide. However, there is some evidence that one effect of the CMCHA is that in England and Wales, individual liability has been sacrificed for pursuing corporate liability. In 3 of the first 4 cases, decisions to proceed with corporate manslaughter prosecutions were accompanied by decisions not proceed with charges against individual directors for the offence of gross negligence manslaughter.

Some legal commentators have already referred to a nascent trend, with the threat of charges against individual directors being the ‘bait’ for a corporate manslaughter charge: ‘an offer from… the company to plead guilty in exchange for the prosecution dropping charges against individuals might look like an attractive one to a director facing a risk of prison then one form of liability is being exchanged for another’.

Richard Baker MSP’s draft Bill for the Scottish parliament seeks to address this gaping and very deliberately created legal loophole to re-enable individuals to be held liable for recklessly causing the death of workers. His Bill will also make it easier for organisations to be prosecuted for an offence by enabling liability to be attributed to the organisation when an ‘office holder’ of the organisation commits an act or a failure that triggers an offence.

One potential danger is that, in relation to the individual offence, no distinction is made between managers and employees (potentially a problem in cases where organisations pin the blame on workers); in relation to the organisational offence, the person that triggers the offence is not merely a senior manager but any ‘office-holder’ acting on behalf of the organisation.

The danger here flows from the courts not adequately recognising the differences in the power to act that people at different levels in organisational hierarchies have. Workers do not have the statutory right in this country to stop unsafe work. Nor do they have authority over safety-critical decisions such as how many workers are allocated to a job, how maintenance schedules are organised, or how training provision is made. Managers do. The proposed Bill needs to take account of those power diffeentials, and ensure that the person liable for prosecution should be a person with the necessary authority and power to prevent risks.

Regardless of whether this Bill makes progress or not, there are bound to be problems with the enforcement of the law. The spectacular failure of the CMCHA, even in its emasculated form, is clearly demonstrated by the failure of police forces and the Crown Prosecution Service to apply it. As we write, there have been just 12 successful prosecutions. Meanwhile, tens of thousands still die from work-related illnesses every year in the UK, and a very significant proportion certainly die due to legal breaches by their employers.

Moreover, further scrutiny of these cases indicates other key failings with the law.

First, all of the companies successfully prosecuted thus far have been small to medium sized enterprises which could have been successfully prosecuted under the common law of manslaughter. The large, complexly owned companies for which the new law was ostensibly designed, have so far evaded its reach.

Second, the level of fines has been low. The Sentencing Guidelines had proposed that an “appropriate fine” would “seldom be less than £500,000 and may be measured in millions of pounds”. Only in one case has this putative minimum of £500,000 been reached – although it should be noted that the fine of £500,000 against was imposed upon a company, Sterecycle [Rotherham] Ltd, which at the start of the trial was in fact in administration.

The CMCH Act, then, is beginning to look very much like another weak, and at most, symbolic attempt to hold to account companies which kill. Richard Baker’s draft Bill is certainly an improvement on this Act. Crucially, it seeks to address the most fundamental contradiction in current law: that senior officers can make decisions that lead to corporate manslaughter, but cannot be held criminally liable for making those decisions.

For this reason we should throw our full support behind it. Yet, at the same time, the Bill really only begins to scrape the surface of the problem of impunity that senior managers will continue to enjoy as they are permitted to put profits before human lives.