Building editorials recently have noted the mounting concern about the industry's neglect of health and safety. The government has come up with two initiatives intended to prevent the construction industry from killing more than one of its workers a week. Both warrant careful scrutiny.
The government has at last revealed its proposals for overhauling the intricate law of manslaughter. The result would be a subdivision of different offences of killing involuntarily, with a special formulation for “corporate killing”. Is this a step in the right direction?
The intention is to reduce the evidential burden on the prosecution so that “undertakings” could be convicted more easily. The offence would be committed where a management failure is the, or a, cause of a person’s death, and that failure constitutes conduct falling far below what can reasonably be expected. A failure would be treated as causal for these purposes, even though the immediate cause of death was the act or omission of an individual.
It is easy to see why the TUC and victim action groups have lobbied for this approach. It sidesteps the need to show negligence, to a recognisable criminal standard, by any person really responsible – the controlling mind or minds of a company. It is this doctrine of “identification” that has been blamed for the collapse of high-profile prosecutions. It would not be necessary to show that the risk was obvious, or that the defendant was capable of appreciating the risk at the time.
Deterrence is the key reason behind the recommendation of the offence. One campaigner has asserted that corporate criminals are uniquely deterrable because they calculate risks rationally and stand to lose valued possessions and status. How deterrence works at the level of inadvertence and unconscious risk-taking is not explained, either for individuals or, more importantly, hierarchies of individuals with collective responsibilities. No evidence for the improved deterrent effect of the new offence over and above that for the existing threat of manslaughter has yet been given.
The home secretary believes that “all too often, organisations have been able to escape liability for errors where, if an individual had been responsible, they would have been convicted”. In fact, we already have tough offences for any undertakings that fail to ensure the safety of their staff or the public, where the onus is on the defendant to prove that it took all reasonable precautions. Offences are set out in the Health and Safety at Work Etc Act 1974, which makes ample provision for dealing with management failures, corporate and individual. Unfortunately, the courts still impose apparently derisory fines, such as that of £1000 given to Simplex Piling in April following the death of a site worker.
The recent appearance of a major train operator at the Old Bailey and the imposition of a fine of £1.5m shows that the existing system can be made to deliver what the home secretary wants. If too many other companies are really unaccountable, and are escaping liability, some serious questions need to be asked about the Health and Safety Executive and the consistency and fairness of its prosecution policy. The courts, too, need to appreciate the need for consistency in penalties.
It appears that the justifications for the corporate killing offence are weak and it is far from clear that its implementation will promote health and safety. The dangers are twofold.
First, the message is being sent that mainstream enforcement of health and safety laws is inferior and not truly penal in nature. Second, a corporate killing offence with the burden of proof set so low will soon lose the stigma associated with manslaughter.
The other recent initiative is the DETR strategy statement issued in June 2000, Revitalising Health and Safety. Among its proposals are the following points:
- The HSE is to “name and shame” companies and individuals in a special annual report, and on its web site.
- Lowering the standard of proof to obtain convictions is likely to backfire
- A more effective approach is to incorporate health and safety into company's business calculations
- Businesses will be required to report publicly on health and safety issues.
- A code of practice on directors’ responsibilities for health and safety, with a requirement to appoint an individual director responsible for this area – probably backed up with legislation.
- The maximum fines in lower courts for contravening regulations will be increased and the courts will be empowered to imprison offenders for most offences.
New types of sentences going beyond those traditionally available will be considered, including:
- Fines linked to turnover
- Prohibition on directors’ bonuses
- Suspension of managers without pay
- Community service orders for companies
- Government departments’ procurement to look at the health and safety record of bidders, and contract specifications to make explicit reference to health and safety requirements
The government will also support the “Clients’ Charter” being launched later this year as part of the Movement for Innovation in the construction industry.
Ann Minogue is a partner in solicitor CMS Cameron McKenna.