Why new killing laws won't work

In addition, the prosecution must also prove that the accused's conduct fell far below what could be reasonably expected in the circumstances, or that the accused intended by their conduct to cause some injury or was aware that it may cause some injury and unreasonably took the risk. Prosecution must also prove that conduct causing, or intended to cause, the injury constitutes an offence. For instance a typical example would be driving whilst under the influence of alcohol or drugs, however it could equally be a breach of the Health and Safety at Work Act.

In defence of corporate killing, the prosecution has to prove that the conduct of the corporation caused the death. Note the Government's intended definition of "corporation" is extremely wide, and covers companies, partnerships, charities, hospital trusts and even the self employed.

Management failure must be proved

Also there has to be a "management failure". In other words, the way in which the corporation managed or organised its activities failed to ensure the health and safety of persons employed in or affected by those activities. This is important even if the immediate cause is an act or omission by an individual.

For instance, a lorry driver falls asleep at the wheel of his lorry on the motorway and consequently causes an accident with a number of other vehicles involved and someone is killed. It is the lorry driver's dangerous driving that is the immediate cause of the death. However, if the company knew the lorry driver in question was driving an excessive number of hours a week and as a result was exhausted. Then the death would be regarded as having being caused by the conduct of the corporation due to its failure to manage the driver in question thereby the ensuring the health and safety of him and people affected by his activities.

Under current law, a director of the company who knew of the lorry driver's situation could be liable for the offence of manslaughter and the director may be convicted for either reckless killing or killing by gross carelessness, depending on his knowledge of the situation. The fact that the company was being charged with corporate killing would not prevent the director from being charged as well. But under the new proposals it will be slightly easier for the prosecution to obtain a conviction of corporate killing as the prosecution will not have to show, unlike the individual offence, that the risk was obvious or that the corporation was capable of appreciating the risk.

This means there are going to be circumstances where the prosecution can obtain a conviction for corporate killing but there is insufficient evidence to convict any individual directors for any individual manslaughter offences. Possibly with this in mind the government has proposed two offences that attach particularly to officers of corporations.

More people will be found culpable

There are good and bad points to bear in mind. The good point is that if an individual can be shown to have had some influence on, or responsibility for, the circumstances in which a "management failure" fell below that which could reasonably be expected of the corporation, and that management failure was the cause of the person's death. Then that individual should be subject to disqualification from acting in a management role in any undertaking carrying on the business or activity in Great Britain.

The prosecution would only have to show that the individual contributed to the management failure which resulted in the death in order to obtain a successful prosecution and it is envisages that separate proceedings would be brought against an individual director following the conviction of a corporate killing.

Who will want to be safety director?

The bad point is the government is suggesting that where there is insufficient evidence against an individual to prove one of the three new manslaughter offences and it can be shown that that individual substantially contributed to the corporation's conduct which resulted in the death of a person then separate criminal proceedings should be brought against that individual and they should be liable to a penalty of imprisonment.

While it might appear to be perfectly reasonable, particularly as it is in the public interest to encourage the individuals who manage corporations to take health and safety seriously, I have an inherent dislike of any law which is specifically directed at criminalising certain sections of society. Who in their right mind is going to volunteer to be the director responsible for health and safety in a large company with hundreds of employees, any of whom's activities could result in a charge of corporate killing?

Will imprisoning safety directors work?

Is sending the health and safety director to prison really going to cut the number of deaths and injuries in the workplace? It is worth remembering that corporations under the Health and Safety at Work Act 1974 are liable to an unlimited fine for a corporate conviction on indictment for a breach of its general duties under sections 2 and 3 of that Act. Any contravention of any regulation made under the Act constitutes a criminal offence punishable on indictment by an unlimited fine and/or a term in prison not exceeding 2 years (section 33(1)(c))

Directors themselves could be charged under Offences Against the Person Act 1861, the offence that most readily applies is section 20 which states "Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon or instrument shall be guilty of [an offence triable either way] and being convicted thereof shall be liable to imprisonment for 5 years."

It is clearly established that the word "malicious" means "intentionally or recklessly" and that "reckless" would require that the company director or management actually foresaw that some bodily harm - not necessarily amounting to grievous bodily harm or wounding - might result.

While the Health & Safety Executive generally investigates every death in the workplace, there were over 47 000 workplace major injuries including amputations, blinding and burnings reported to the HSE between 1996 and 1998. The HSE decided to investigate only 10% of those injuries and of the injuries it did investigate, only 10.4% resulted in a prosecution.

HSE is failing to use legislation effectively

Under the Health and Safety at Work Act it is easier to gain a successful prosecution than it will be under the new offence of corporate killing, yet the HSE is failing to use this piece of legislation effectively. As far as I am aware the HSE has never asked the police to investigate and convict a director under the Offences Against the Persons Act.

Why is there such a low level of convictions under the existing laws? The reason is quite straightforward, the HSE lacks financial resources and despite the government's tough announcements against corporations, and the Government's vow to slash illness and injury rates in Britain's workplaces. the one announcement which the Government should and has not made in the last few weeks is the promise to allocate more resources to the Health and Safety Executive. Until they do so I believe we will see little improvement in the construction industry, or for that matter, any other industry's accident record.