Only two cases come to mind. The first was the Lyme Bay canoeing disaster in 1994, when the managing director of the activity centre went to prison for three years. Four children died in the incident. The second, in 1996, was the managing director of a transport company who was jailed for a year after one of his lorry drivers died.
No charges of that gravity arose after the Herald of Free Enterprise sank (190 dead), nor after the King's Cross fire (31 dead), nor after the Paddington rail crash (30 dead), nor after the Southall rail crash (seven dead) … After Hatfield, who knows? But the government has promised a brand new offence. It will be called "corporate killing" and will be with us next year. I'll explain how easy it will be to prosecute using this approach, but first let me mention two or three things.
The victims of any of the disasters I have just mentioned and their relatives have always had a right to sue the negligent company for personal injury, loss and damage. Compensation may be considerable; none of that will change. Moreover, a successful prosecution of a company by the Health and Safety Executive will result in fines. Great Western was fined £1.5m after the Southall rail crash. But fines are invariably a small proportion of profit.
Next, the law will revise and tidy up legislation over reckless killing (penalty, life imprisonment) and killing by gross carelessness (penalty, 10 years) – known collectively as involuntary manslaughter. But as the law stands now, the only way to obtain a conviction for these offences when a company is at fault is to identify a "controlling mind" in management and lay the death at his or her door. That's how the owner of the small canoeing centre was convicted. Inevitably, the bigger the company, the more difficult it is to pin a company's behaviour on one person. Railtrack chief executive Gerald Corbett was not the controlling mind; he was only part of the management team.
Inevitably, the bigger the company, the more difficult it is to pin the company’s behaviour on one person
This brings us to the crucial new element in corporate killing. The obligation to find a controlling mind has been dropped; instead, the draft bill says a company is guilty of corporate killing when a management failure by the company is the cause, or one of the causes, of a person's death, if that failure falls far below what can reasonably be expected of the company in the circumstances. In the words of the draft, it is "mere management failures, which cause death". You can immediately see that a badly run building site or a badly run subcontract is a simple question of fact. It will be up to a jury to decide if the maintenance firm's negligence was "far below" what could be expected.
The reason for this legislation is, I suspect, to satisfy public disquiet about bad management. To bring a company to trial for manslaughter is very difficult, but the new offence will excite the public's interest. The man in the street reading his Sun or The Times will see justice done. And see it done well if the fine is a whopper.
The offence of corporate killing will not stop at companies. It will embrace partnerships, unlimited enterprises, firms, and sole traders. It will also include local authorities, government and quasi-government bodies. The act will employ the word "undertakings" rather than companies to broaden the scope of the offence.
And there is more. If the company is found guilty, its holding company could also be brought to book. And the directors of the companies are liable to be removed under the Directors Disqualification Act.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.