Killing law

When Kevin Walsh heard that no one would be prosecuted for the manslaughter of his brother he thought it was a joke. Shaughan Walsh, a roof felter, died after a building collapsed on him and two co-workers in Hull in April 2000. Despite the fact that the Health and Safety Executive had already issued Marketing Exchange for Africa, the site owners, with two prohibition notices, the Crown Prosecution Service (CPS) cited lack of evidence as the reason for not bringing the prosecution.

“We didn’t anticipate any other decision,” says Walsh, who also works in construction as a buyer. “Shaughan was murdered, he was killed unlawfully. And the owners of the site have got away with it.”

Walsh asserts that the law is too vague at present and that people have trouble interpreting it, from judges to the CPS. He has a point. Between April 2000 and March 2001, there were 295 deaths at work and only six prosecutions for manslaughter brought.

“The Government has to be prepared to put legislation in place,” adds Walsh. “Health and safety is neglected in construction right across the board. Company directors need to be made more responsible, and if there was a corporate killing law waiting for them round the corner it might make all the difference.”

The idea of reforming the law on involuntary manslaughter has been kicking around since the Law Commission produced a report on it in 1996. It proposed four new offences be created: corporate killing, reckless killing, killing by gross carelessness and killing when the intention was to cause only minor injury.

At present convicting companies of manslaughter is difficult because the law dictates that there must be “one controlling mind” responsible. Only very small companies have been convicted because of this, where one person can be clearly identified as having responsibility for safety. Larger firms can hide behind chains of responsibility.

The Government published its proposals to reform to the law of involuntary manslaughter in May 2000. Although it was not put before the last parliament, the Government insists it will go through the House of Commons before the next general election in 2005/6. Those found guilty could face unlimited fines and prison.

The proposed offence that has caused the most controversy is that of corporate killing. A prosecution for corporate killing could be brought when “death had been caused by a management failure, and where the failure constituted conduct falling far below what could reasonably be expected. Liability will depend upon the facts in each case and upon the judgment made about what constitutes conduct falling ‘far below’ what can be reasonably expected,” says a Home Office report. Whereas the other proposed offences concentrate on individual actions, this one seeks to lay collective blame at the feet of company directors and managers.

So hiding behind chains of responsibility may no longer be an option. Lawrence Waterman, managing director of health and safety consultancy Sypol, says directors of construction companies have no reason to fear a corporate killing law if they follow three key procedures.

“The key question for directors is whether the policies they have are working at the sharp end, where there are cost and time pressures. To make sure they are, directors have to introduce a formal management system, something that can be recognized externally such as a BSI or ISO standard, and not just a collection of arrangements. Secondly, they need to have a degree of independent auditing of the system. And directors also need to have ownership of the way people are performing on site, whether they are directly employed or not. Behavioural-based safety training has worked well in factories and it means getting the workforce to take pride in doing their job right first time and safely. It’s not just putting a few posters up and changing attitudes. It’s about creating peer pressure to behave safely.”

Waterman says a corporate killing law won’t dramatically change construction. “It will concentrate the minds of some of the chancers in construction. More people want a sustainable business and health and safety is as important as any other factor in creating that. A corporate killing law will add to the pressure and momentum that has already built up over safety in construction throughout the past 18 months.”