TUC response to the Home Office on 'Reforming the law on involuntary manslaughter'.

TUC response to the Home Office on 'Reforming the law on involuntary manslaughter'

Introduction

Summary

There must be the ultimate sanction of jail for individual Directors.

Crown immunity should not be invoked to protect people from prosecution.

The penalties envisaged should bear down on those with real responsibility for the crimes committed, not on scapegoats, especially at middle management level.

The Home Office and HSC should, in due course, also consider a range of other possible sanctions, such as corporate probation.

Specialist cross-agency teams drawn from the HSE, local authority inspectors and the police, together with the CPS, should investigate and prosecute cases of corporate killing, and sufficient resources need to be provided to enable these teams to function effectively.

Anti-avoidance proposals such as the freezing of corporate assets, continuation of proceedings after insolvency and extension of liability to include non-corporate bodies are welcome.

1. We welcome legislation designed to make corporations and other bodies accountable for the manslaughter of their workers and members of the public and which recognises the need to hold very senior individuals responsible for the safe working and operating practices of such corporations.

2. We wish to avoid scapegoating of front line employees or middle managers. We consider that workplace fatalities are avoidable and are usually caused by fundamental health and safety shortcomings throughout the organisation which can properly be laid at the door of the Managing Director, Board of Directors, Chief Executive, Chief Fire Officer etc as appropriate.

3. This is consistent with the HSE position on the relationship between human factors and wider organisational. The HSE Guide HSG65 sums this up: 'Accidents, ill health and incidents are seldom random events. They generally arise from failures of control and involve multi-contributory elements. The immediate cause may be a human or technical failure, but they usually arise from organisational failings which are the responsibility of management.'

4. Workplace fatalities can be avoided by employers injecting significant investment into health and safety, but such investment can never be purely financial. What is required is a new emphasis giving workplace health and safety top priority, allocating specialist personnel to the task and giving such personnel adequate resources, authority, and the full backing of the organisation.

5. Legislation to facilitate the prosecution of organisations and those in charge is central to the establishment of such a safety culture amongst employers. The existence of specific workplace health and safety legislation and enforcement by the HSE must not detract from the importance of establishing and enforcing legislation on workplace fatalities designed to underpin workplace health and safety.

6. Serious failings of organisations causing death should result in long prison sentences for those with responsibility. Even short periods of imprisonment of those concerned may result in a significant impact on those in authority taking proper care and seeking to avoid behaving illegally (as they do now) in relation to their obligations under health and safety legislation.

7. Fines, even large fines, paid by the impersonal corporations can have a very limited effect. Profits from cutting corners with issues of safety may be vast. Fines paid by public authorities may not significantly affect the behaviour of those in senior positions within an authority.

8. But we recognise that imprisonment and fines are not the only sanctions which can be applied to corporate bodies or their leading figures. We note that the Government/HSC strategy statement 'Revitalising health and safety' committed the HSC to consider more imaginative penalties, and the TUC will be submitting views to that exercise.

TUC responses to proposals in the consultation document

9. The Government’s proposal to accept the Law Commission’s proposals in respect of the offences of reckless killing and killing by gross carelessness is welcomed. Although we recognise that, to an extent, this may be seen as watering down the seriousness of the charges which may be brought against an organisation and/or those in control, the reasoning given is entirely pragmatic. It is preferable to secure convictions coupled with a reasonably punitive custodial sentence than to have more severe penalties resulting in a lower conviction rate.

10. The proposed maximum penalties in the consultation paper are considered appropriate by the TUC. These include a proposed maximum penalty of 10 years for killing by gross carelessness and a maximum sentence where death results but the offender was reckless or intended only minor injury of between 5 and 10 years.

11. However, the TUC is more concerned that there should be clear sentencing guidelines and consistent sentencing practice to ensure that those convicted in cases of workplace killing receive custodial sentences reasonably close to the maximum penalty where appropriate with maximum sentences in the most serious cases. Specifically, it should be clear that the sentence reflects the particular culpability of the individual Defendant particularly where there has been a management failure, as defined in the draft bill.

12. We do of course therefore welcome the Government’s proposal of a new law on corporate killing. However, in underlining the importance of avoiding the scapegoating of individual workers or junior managers, we consider that a new clause 3 should be introduced to provide such personnel with an absolute defence to a charge brought under this legislation in a case where, in relation to the relevant fatality, there has been a management failure as defined by clauses 4(1) and (2). Those personnel permitted to plead this absolute defence would be defined as all employees other than those senior personnel who may be individually indicted in respect of management failures - see below. This defence should remove the need for clause 4(4) of the draft bill. This would not prevent prosecutions against such employees under existing provisions.

13. We would also agree with the Government that Clause 3 of the draft Bill needs amendment. A defence based on the fact death was caused by omission would cause many otherwise guilty of a serious offence resulting in death to avoid conviction. Most breaches of good health and safety practices are substantially by way of omission. People are often injured and killed in this context because of failure or omission to put reasonable health and safety standards into practice.

14. The alternative in leaving a defence of omission would have the opposite effect to that which is desired. Employers would have more protection from prosecution if they omitted to carry out their duties (for example, the duty on an employer to prepare a safety policy under the Health and Safety at Work Act 1974 s2 (3) and numerous other more specific duties), than if they had attempted to comply with their obligations.

15. The Government’s proposal to apply the offence to 'undertakings' is definitely preferable to applying it solely to corporations. The definition in the 1974 Act is designed to embrace the wide range of corporate and non-corporate employers and provides a suitable and consistent definition applicable to the context of workplace fatalities.

16. The TUC believes that it would be entirely inappropriate to allow the application of Crown immunity to the offence of corporate killing. There is no logical, legal or moral justification for Crown immunity to apply, leaving Crown bodies and senior personnel immune from prosecution where poor health and safety practices have caused workplace fatalities. 'Revitalising health and safety' made it clear that the Government accepts the argument put forward by the TUC and others that crown immunity should not apply to health and safety, and the same logic applies to corporate killing. Indeed, the TUC urges the Government to use its proposed corporate killing legislation to abolish crown immunity for all health and safety issues, if that has not already been achieved by then by other means.

17. The Government proposal that in England and Wales the HSE and local authorities should investigate and prosecute the new offences, in addition to the police and CPS is broadly welcomed by the TUC, although we recognise that there is still work to be done to make the HSE and local authorities effective in this task. The TUC believes that, should the resources be made available, the best solution would be to establish cross-agency teams of HSE inspectors, local authority inspectors, the police and the Crown Prosecution Service. However, we would want the approach to investigations and prosecutions to be that of the HSE, focusing on the management failures which lead to a death rather than trying to identify the individual most directly responsible for the event, which may simply lead to scapegoating front line workers. We would also want to avoid situations where, for example, management in the emergency services (such as the fire service) were being investigated by members of another emergency service (the police) who will often be run by the same Authority.

18. The TUC welcomes the Government proposal that the prosecuting authority should also be able to take action against parent or other group companies if it can be shown that there own management failures were a cause of the death concerned. It is important to strengthen the legislation with such anti-avoidance measures. There is no doubt that unscrupulous employers will not hesitate to establish intricate corporate networks to act as a veil, protecting from prosecution those operating and profiting from dangerous practices. Amendments to the draft bill will need to be carefully drawn up to defeat such intricate attempts to avoid prosecution.

19. The TUC supports the proposal that any individual who could be shown to have had some influence on, or responsibility for, the circumstances in which a management failure falling far below what could reasonably be expected was a cause of a person’s death, should be subject to disqualification from acting in a management role in any undertaking carrying on a business or activity in Great Britain (but see also our comments on more imaginative sanctions, above).

20. It is fundamental that criminal liability for management failures as defined by the draft bill applies not only to the corporate body or undertaking concerned, but also to owners, directors, and very senior personnel who are ultimately responsible for the management failure.

21. However, with particular reference to the Human Rights Act, we consider it would be a mistake to simply create deemed responsibility for management failures. 'Revitalising health and safety' proposed a code of practice stipulating that organisations should appoint an individual director for health and safety or a responsible person of similar status. We consider that such legislation is the appropriate place establish the duty to manage health and safety within the undertaking. But it is not sufficient to simply appoint an individual director for health and safety. This would leave the way open for unscrupulous employers to avoid responsibility by appointing relatively junior individuals, lacking resources and/or influence within the undertaking. That could lead to scapegoating of health and safety directors where the real guilt may lie with the managing director and/or the board.

22. It is suggested that any action in disqualifying individual officers from management should include disqualifications for life and should work alongside, and certainly not instead of the personal liability of directors and others and consequential custodial sentences.

Other Matters

23. The TUC believes that criminal proceedings should be allowed to continue after the formal insolvency of a company. With regard to the freezing of assets pending criminal proceedings, such anti-avoidance measures are supported. However, rigorous procedural controls will be necessary to ensure full compliance with the Human Rights Act.

24. The TUC welcomes the Government’s proposals that there should be no requirement of consent to the beginning of private prosecutions for the offence of corporate killing; that the offence of corporate killing should be triable only on indictment, to mark the seriousness of the offence; and that it should be possible for the jury, if they find a defendant not guilty of any of the proposed offences, to convict a defendant of an offence under section 2 or 3 of the 1974 Act.

TUC

September 2000