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Lynch mobs or lobbyists?

15th July 2004, Page 36
15th July 2004
Page 36
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Page 36, 15th July 2004 — Lynch mobs or lobbyists?
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Which of the following most accurately describes the problem?

Pressure is mounting on the government to introduce long promised new laws against companies that cause death to employees or the public. Adam Hill reports.

Sneven years ago, the government promised ew law in the murky area of prosecuting companies which are proved to have caused fatalities. In May 2003, Home Secretary David Blunkett said a draft bill would be forthcoming. Yet the Queen's Speech last November made no mention of any new legislation, although the government has said it will publish something by October this year.

A Transport & General Workers Union (T&G) spokeswoman says: "We're not happy about it. The promised bill has not been forthcoming. It is now an outstanding manifesto commitment since 1997."

Legislation will come

Yet pressure is mounting and operators should be in no doubt that legislation will come, whatever the timetable (CM 22 January). In March Labour MP Frank Doran introduced a `10-minute rule' bill "to create a new offence of corporate killing that applies to all companies and unincorporated bodies". His main point is that under British law there is no separate test that allows the court to consider whether a company — rather than a person within that company — acted with gross negligence. "Corporate guilt is entirely dependent on individual guilt," says Doran. "In practice, the offence is extremely difficult to prove."

It is worth pointing out that operators are not being set up as specific scapegoats here. Doran has the following incidents in mind: the Herald of Free Enterprise sinking; the King's Cross underground fire; the Piper Alpha oil platform disaster; the Clapham rail crash; the Kegworth airline crash:the Hillsborough football stadium disaster; and the Marchioness river boat sinking. Yet road transport, with issues of maintenance, loading and unloading and hours, is clearly at the sharp end of any change in the law.

The legal terms themselves are confusing. The offence of 'corporate manslaughter' already exists — although, as detractors such as Doran argue, it is hard to prove. The new bill will deal with a new offence,'corporate killing', which does not yet exist in law. The government intends that "criminal liability should only be imposed on companies whose actions have been seriously deficient, rather than those that have been inadvertent or simply negligent. On this, the concept of 'falling far below reasonable standards' provides a useful way of describing the sort of standard we have in mind".

Stephen Kirkbright, of solicitors Ford and Warren, is concerned by this.He argues that the Health & Safety at Work Act already gives the courts power to apportion blame for causing a death, so the new law is unnecessary. "The defence against that is difficult to establish and so it should be," he says. He is also worried that, while prosecuting larger companies may be the government's main motive, smaller firms may prove easier targets: "It is very easy to convict Stephen Kirkbright Trucking, which has 10 vehicles. It is less easy to convict SK plc, which has 10,000 vehicles and 150.000 employees."

Support for action

But unions — and public opinion — seem to be behind government action. Tony Woodley, T&G general secretary, says of Doran's bill: "The bill should act as a wake-up call to the government, which should honour the commitment it gave seven years ago to make corporate killing an offence. Bosses are getting away with murder and will continue to do so until they realistically face the prospect of jail. Fines are falling while deaths are rising as the existing law fails both workers and their families."

David Bergman. director of the Centre for Corporate Accountability, adds: "The delay is very unfortunate. But what is important is that the new offence allows companies and other employing organisations to be prosecuted for serious management failures without the need to show individual culpability, which is the current situation."

Kirkbright thinks operators must wake up to the reality of the situation. "This, to me. is the biggest problem affecting the industry at the moment. Every firm is affected by it," he says. At present, under health and safety law, there is a defence for operators of 'reasonable practicability' in fatal accidents. In other words, if the operator can prove that every reasonable measure was taken to ensure safe operation there will be no prosecution.

But the idea of being prosecuted under the new legislation for 'falling far below reasonable standards' fills him with disquiet.

"There isn't going to be a defence," he says.

approach new legislation with some trepidation. It will be very popular in the tabloid press. but I fear it could lead to iniquities.

"It is designed to say:! can convict someone of killing without proving criminal gross negligence or intent.' The only good thing is that it is not against individuals, only corporations"


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