At last the buck will stop at the top but prison service gets out of jail

No one has been held to account for the deaths of hundreds of
people in some of the UK’s most infamous disasters, from the
capsizing of the P&O ferry outside the Belgian port of
Zeebrugge, to train crashes and the crush at Hillsborough football
stadium.

This has provoked anger from many who believe that companies and
organisations have been allowed to get away with manslaughter. But
this will change if the draft Corporate Manslaughter Bill published
last week becomes law.

There is already an offence of corporate manslaughter, but there
have been fewer than 10 successful prosecutions. The first was in
1994 when leisure company OLL was convicted after four
schoolchildren in its care died in a canoeing accident in Lyme Bay,
Dorset.

Only one council has faced corporate manslaughter charges under the
law after an outbreak of legionnaire’s disease killed seven people
at a Barrow Council-owned arts centre in August 2002. Although the
council pleaded guilty to one charge under the Health and Safety at
Work Act 1974, the judge ordered the jury to find the council not
guilty of corporate manslaughter earlier this year. As one manager
still faces seven charges of manslaughter, the judge has yet to
give his reasons for this ruling.

But implementation of the new draft bill would have significant
implications for local authorities.

As it stands, the charge of corporate manslaughter involves proving
there was a “controlling mind” – that is an individual at the top
of an organisation who knew what was going on and can be shown to
be personally guilty of manslaughter. Without prosecution of the
individual it is impossible to prosecute the company.

This premise has been widely criticised. Attempts to prosecute
large companies have failed because it has proved impossible to
identify this single individual. Any convictions have been of small
companies with one or two directors where they are plainly
identifiable – such as OLL.

The draft bill updates this law. If enacted, courts will be able to
look at a wider range of management conduct. Responsibility will
become focused on the working practices of the organisation, set by
senior managers, rather than limiting investigations to individual
gross negligence by company bosses.

This will not affect the criminal liability of individual directors
who will still be liable for prosecution for manslaughter. The new
offence will apply when someone has died as a result of senior
management’s failure to take reasonable care for the safety of
staff or others. Convicted organisations will face an unlimited
fine.

In effect, the new bill allows for failures in the chain of command
in a large organisation to be aggregated into one charge against
the organisation. You only have to cast your mind back to the
Victoria ClimbiŽ case to realise the implications of this for
local authorities. In his inquiry report into the eight-year-old
girl’s murder, Lord Laming lambasted senior managers for abdicating
their responsibility for failings that contributed to her death.
Yet no one was called to account in court. And the only people
hounded by the press were less senior front-line workers.

As David Young, a partner with legal firm Eversheds’ corporate
criminal defence team, says: “If that case was re-run in the era of
the new law it would look like a pretty good candidate for a
prosecution.”

But Young raises another issue that will need to be addressed
during the bill’s consultation period: that of who actually are the
senior managers in local authorities?

He says: “Elected members are the only people in local government
that can make policy and that is then implemented by permanent
officers. So are the officers seen as senior managers or the
members? That’s a debate that has to be had.”

The same debate could run in relation to private companies, where
the board comprises non-executive and executive directors. Both
will have been involved in making the policy but only the executive
directors will have been actively involved in delivering it.

Doubtless there will also be debate about whether failings further
down the chain should be attributable to senior managers.
Ultimately, it will take case law to settle the debate. But, either
way, the bill provides an explicit focus on the conduct of senior
management. “Clearly the thinking is not to allow those kind of
hiding places [as seen in the ClimbiŽ case] for senior
managers,” says Young.

Voluntary and private sectors also fall within the bill. The Home
Office highlights care homes as an example, but providers have
concerns. Martin Green, chief executive of the English Community
Care Association, says if the bill applies to those managing and
running services, it should apply equally to those commissioning
and resourcing them.

“The idea that you can eliminate all risk and also that the
responsibility is only on the shoulders of the provider is not
helpful,” Green says.

“The bill will single out people who can’t have day-to-day control
over every aspect of care that is delivered. It is
witch-hunting.”
The government’s wish to amend corporate manslaughter offences
since they came into force has been delayed by a lengthy debate
about how public authorities fit into all this and whether Crown
bodies, such as government departments, should have immunity.

Public authorities such as councils are generally regarded as
resource-limited and so often have to make decisions about where to
apply funding. The debate, yet to be resolved, centres on whether
it is reasonable to criticise these decisions in hindsight.

For the moment, the proposals would apply to Crown bodies. But
Young believes the government will want to retain a degree of
immunity. The bill suggests that government bodies that set policy
but do not provide services deserve protection.

Most notable exemptions from the draft bill include regulatory
standards, statutory inspection, decisions by primary care trusts
about what services to provide patients, and the detention of
prisoners.

The last of these has provoked an angry response, particularly
because of the deaths of 28 15- to 17-year-olds in custody since
1990 for which no one has been held responsible. Government
refusals to hold public inquiries have exacerbated the issue.

The only exception to this inertia is the inquiry into the murder
of 19-year-old Zahid Mubarek. Perhaps it is not coincidental that
the police had considered bringing manslaughter charges against
prison staff after Mubarek was killed by his cellmate at Feltham
Young Offender Institution in March 2000. But the Crown Prosecution
Service decided there was insufficient evidence.

David Bergman, director of the human rights charity Centre for
Corporate Accountability, is one of many unconvinced that there are
legitimate reasons for exempting the prison service.

He says: “It is difficult to see why deaths in the prison service
should be dealt with differently from deaths resulting from the
activities of any other organisation. I think it would also be in
breach of the Human Rights Act 1998.”

It would appear that the purpose of the proposed new offence will
not be just to fine companies that get it wrong, but to make a
social and moral point of culpability. Laming must surely be
pleased that – at least in most situations – for once the buck
really will stop with those at the top.