A matter of life and death

The bosses of large organisations could soon find themselves facing greater exposure to corporate manslaughter charges. This is dependent on the outcome of two separate developments in corporate manslaughter law: a court case currently under way and a private members bill, which has already received widespread backing in parliament.

Since the early 1990s it has been possible to prosecute an employer for manslaughter. However, the case before Preston Crown Court represents the first time a council has been charged with manslaughter as the result of the actions of an employee. If the council is found guilty it will face “unlimited fines”.

The case centres on Britain’s biggest outbreak of legionnaires disease, in Barrow-in-Furness, Cumbria. The outbreak was traced to the roof-top cooling towers at the Forum 28 arts complex in the town, which had become contaminated with the “Benidorm” strain of the bacteria. Spray from the towers, containing the contaminated water, was carried by the wind across the town centre, leaving seven people dead and 172 seriously ill.

As a result of the outbreak, a charge of manslaughter was brought by the Crown Prosecution Service against Gillian Beckingham, the Barrow council architect who was responsible for cancelling the maintenance contract for the air-conditioning system, and – crucially – the council itself. This is because the architect was said to be sufficiently senior to be part of the “directing mind” of the council.

It is notoriously difficult to prove that the individual guilty of the manslaughter is of sufficient seniority to be considered the controlling mind of an organisation and several high-profile cases – such as those against P&O European Ferries after the sinking of the Herald of Free Enterprise and against Railtrack for the Hatfield rail disaster – have failed to secure convictions as a result. Therefore, if the prosecution succeeds in this case, it could open the floodgates for corporate manslaughter charges. “The real interest of the case is for employers of an individual who has been grossly negligent,” says Ann Minogue, a partner in solicitor Linklaters.

“The implications are that employers of an individual who is grossly negligent could face prosecution in addition to the individual concerned,” says Minogue.

It does not take too much imagination to see how this case could affect firms in the building services sector: if the action, or inaction, of an employee of some seniority ultimately leads to a death, both individual and their employer could find themselves facing manslaughter charges. Dr Simon Joyston-Bechal, from law firm Pinsent Masons, says: “The individual concerned could end up facing a personal manslaughter charge, while the company they work for may end up facing a charge of corporate manslaughter.”

This is not the only development that company directors will need to monitor carefully. The second area for concern is a private member’s bill, which is scheduled for a second reading in parliament on 4 March. The bill, introduced by Stephen Hepburn MP, is called the Health and Safety (Directors Duties) Bill.

According to Joyston-Bechal, the bill seeks to amend the Companies Act 1985 by requiring directors of large companies to take reasonable steps to ensure that the company complies with health and safety laws. “In particular, large companies would have to nominate one of their directors as health and safety information director, who would then have to take all reasonable steps to inform the board about health and safety issues,” he says.

Currently a director can only be held criminally liable for a company’s health and safety breaches if they are committed with the director’s consent. This is a particular problem in large companies where directors claim they are too distant from day-to-day activities to be linked to any safety breaches. However, this will change if the new bill comes into effect, as directors will no longer have the excuse that they were not made aware of a particular safety issue. “The board would then be able to blame the health and safety information director for not keeping them informed,” says Joyston-Bechal.

Joyston-Bechal says the proposed bill is not without its problems because it will apply to non-fatal accidents, “however minor”. He adds: “It places greater obligations for safety on directors of larger companies, than those of small and medium-sized companies where accident rates per employee are highest.”

With a general election looming, the chances of parliament making time for this bill to become law are almost non-existent. Nonetheless, this bill and the legal precedent being set in Preston serve to illustrate the kind of pressure being put on government and courts to find an industry scapegoat in cases of corporate killing. It would appear that it can only be a matter of time before large companies are convicted of manslaughter and their directors jailed.