Corporate Manslaughter
Into 2008 - Corporate Manslaughter, Safety Penalties, Directors Duties, Safety Reps Rights & HSE Resources are the key issues says CWU National Health and Safety Officer Dave Joyce:
CWU National Health and Safety Officer Dave Joyce says that "In 2008, the Corporate Manslaughter and Corporate Homicide Act will hopefully at last be the wake-up call for all employers, company bosses and organisations, and the new law will I hope be a powerful deterrent to those employers failing to meet the proper standards of health and safety and safe working practices when it comes into force on 6th April."
"We do, however, need a range of tougher penalties and higher fines handed down by the Courts. We know that the government supports this, and have done so since 2000. I therefore welcome the fact that the Government's Sentencing Advisory Panel are consulting on the appropriate penalties for corporate manslaughter and other breaches of health and safety law that result in death. My view is that the current penalties, the level of fines, and the level of enforcement activity are inadequate to deal with the widespread health and safety problems in the UK. Current Fine levels in Britain are too easily shrugged off, and contribute to the idea that a workers death can be "bought off", and that life is only worth a small amount of money. Health and Safety Fines are lower than those imposed on companies for regulatory breaches, competition offences and insolvency, and that must change."
"In 2006, Royal Mail were convicted of breaching the Health and Safety at Work act when a CWU member died and they were fined £150,000. No directors were charged. Around the same time, the Postal Regulator fined Royal Mail nearly £12 Million for minor service standard failures which didn't harm anyone."
"In August 2007, British Airways were fined £121.5 million for illegally fixing fuel-surcharges on passengers booking long-haul flights provides a stark contrast to the fines handed out by the courts for health and safety offences. The biggest fine ever in the UK for a health and safety offence was the £15 million fine handed out to Transco in 2005 over the Larkhall explosion which killed a family of four in 1999. In England and Wales, the biggest fine was the £7.5 million fine given to Balfour Beatty over the Hatfield rail crash, which also claimed four lives. In the UK, the average fine for health and safety offences in 2003-04 in the crown court, where there are unlimited fines available, stands at just £33,000, while in magistrate's courts, where the maximum fine is £20,000, the average is just £4,000. The average fine for cases involving death in 2003-04 was a mere £43,000. While price-fixing is a very serious offence, I can't understand how such an offence is more than eight times more serious than killing a family of four, and more than 16 times more serious than a rail crash that claimed four lives"
"I certainly hope that when the new Corporate Manslaughter and Corporate Homicide Act comes into force, that this gross disparity between serious health & safety offences and financial offences will disappear. The courts have got to send out the right message from day one of the new Act that killing people is more serious than financial and taxation irregularities offences, competition and regulatory offences and insolvency - if we're to improve the UK's health and safety record. 241 workers died in 2006/07, but 241 fines of £43,000 is only just over £10 million. Such a great disparity cannot be justified. The punishment needs to fit the crime."
"On the other hand, I certainly welcome proposals for a greater range and availability of penalties, such as adverse publicity orders and remedial orders, but penalties need to bite hard. There's a big need to provide incentives to comply with health and safety regulations, as well as rebalance the law in favour of victims, and ensure that lessons are learnt and offences not repeated. The level of fines has to be raised significantly if they are to be effective."
"Directors and boards have the key role to play. They set the tone for other managers' behaviour and influence the whole of the workforce. Around 1,500 Directors are disqualified for periods of 2 - 15 years in the UK every year for various financial irregularities, wrongful trading, taxation offences and insolvency offences.Breaching a disqualification order can lead to imprisonment for up to 2 years or a fine or both. I think that the same needs to now apply following convictions for serious health and safety offences in connection with major injury and death, and I will be impressing these views on the Government's Sentencing Advisory Panel during the current consultation which ends in February. I welcome the fact that the Health and Safety Minister Lord McKenzie has agreed to remind the courts to use their existing disqualification powers in health and safety cases, something that, in the past, the Courts have rarely done."
"We also need the government to go a step further and introduce new positive legal health and safety duties on directors and senior managers. When you consider that around 50 people are jailed for animal cruelty offences each year in the UK, it's ridiculous that bosses who cause workers to be killed and seriously injured can go Scott-free, even if their company is found guilty. The good news is that the Health and Safety Minister Lord McKenzie said recently at the CCA Conference and during a visit to CWU HQ that the issue of new legal health and safety duties for directors is still on the table, and if the bosses don't deliver better behaviours and good practice in line with the newly published HSE/Institute of Directors guidance, then the government will look again at the case for further legislative change."
"In 2008, employers need to uphold safety measures and engage with Union Safety Representatives, in consultation and partnership to tackle the problems faced by the workforce, and the government needs to come off the fence and give Safety Reps the legal right to involvement in Risk Assessments and introduce a new legal duty on employers to respond to Safety Representatives in good time. It's no good just saying Safety Reps do a fantastic job - they need to be supported with new rights and with the HSE enforcing the Safety Reps and Safety Committees Regulations."
"Enforcement action must target those responsible for management failures and provide protection for victims. However, strong enforcement activity is the most effective way of ensuring compliance with health and safety law. I've also called on the Health and Safety Minister to ensure that the HSE continues to have sufficient resources to maintain Inspector numbers to Police health and safety laws and to start investigating 'at work' road traffic deaths and serious injuries which have reached epidemic levels".
27 November 2007
Consultation begins on sentencing and penalties for new Corporate
Manslaughter Offence.
The government's Sentencing Guidelines Council have commenced a public consultation to consider the range of new penalties and levels of fines to deal with companies and organisations convicted under the new Corporate Manslaughter and Corporate Homicide Act 2007 which is due to come into force on 6 April 2008.
The new corporate manslaughter offence is designed to secure a conviction for a health and safety criminal offence that properly reflects the seriousness of the worst instances of health and safety management failures, causing death in a wide range of situations. It will complement existing health and safety offences, for which organisations and companies may still be prosecuted as an alternative to, or in addition to, the new offence.
The Sentencing Advisory Panel is consulting on the appropriate sentencing for corporate manslaughter and other breaches of health and safety law that result in death.
Employers convicted of corporate manslaughter will face unlimited fines, adverse publicity orders and remedial orders in the Courts from next April, and the guidelines being developed will guide Judges when passing sentence in court and will be invaluable when the legislation comes into force. Additionally, the Health and Safety Minister has asked HSE to refresh its advice to Inspectors to ensure a more robust enforcement of current legislation. The Minister is also reminding courts to use their power of disqualification for health and safety offending Directors and Senior Managers.
The Corporate Manslaughter and Corporate Homicide Act 2007 was enacted in response to problems identified when HSE and Local Authority Inspectors attempted to prosecute bosses and companies under the existing common law gross negligence manslaughter offence.
The Consultation looks at the key issue of the setting of fines for the full range of potential offenders, from companies of small means to those with very large resources, or organisations funded from the public purse. The approach to the new publicity order is also discussed in the consultation document. Factors determining the seriousness of an offence are identified and sentencing starting points and ranges are proposed.
CWU National Health and Safety Officer Dave Joyce said "The Corporate Manslaughter and Corporate Homicide Act is a wake-up call for all employers, company bosses and organisations, and the new law will be a powerful deterrent to those employers failing to meet the proper standards of health and safety and safe working practices. We therefore need a range of tougher penalties and higher fines handed down by the Courts. We know that the government supports this and have done since 2000. However, directors and boards have the key role to play. They set the tone for other managers' behaviour and influence the whole of the workforce. They need to uphold safety measures and engage with Union Safety Representatives, responding to any issues raised. We will be expressing our view in the consultation that the current penalties, the level of fines and the level of enforcement activity are inadequate to deal with the widespread health and safety problems in the UK. Current fine levels in the UK are too easily shrugged off and contribute to the idea that a workers death can be "bought off", and that life is only worth a small amount of money. Health and Safety fines are lower than those imposed on companies for regulatory breaches, competition offences and insolvency and that must change. In 2006, Royal Mail were convicted of breaching the Health and Safety at Work act when a CWU member died in a fall from height accident and they were fined £150,000. No directors were charged. Around the same time the Postal Regulator fined Royal Mail nearly £12 million for service standard failures which didn't harm anyone."
Dave added "Additionally, around 1,500 Directors are disqualified for periods of 2 - 15 years in the UK every year for various financial irregularities, wrongful trading, taxation offences and insolvency offences and breaching the order leads to imprisonment for up to 2 years or a fine or both. We think that the same needs to now apply following convictions for serious health and safety offences in connection with major injury and death, and we will be impressing these views on the Sentencing Advisory Panel. On the other hand, we certainly welcome proposals for a greater range and availability of penalties such as adverse publicity orders and remedial orders. There's a big need to provide incentives to comply with health and safety regulations, as well as rebalance the law in favour of victims and ensure that lessons are learnt and offences not repeated. The level of fines has to be raised significantly if they are to be effective, and we need the government to go a step further and introduce new positive legal health and safety duties on directors and senior managers. Enforcement action must target those responsible for management failures and provide protection for victims. However, strong enforcement activity is the most effective way of ensuring compliance with health and safety law. We've also called on the Health and Safety Minister to ensure that the HSE continues to have sufficient resources to maintain Inspector numbers to police health and safety laws and to start investigating at work road traffic deaths and serious injuries".
The TUC has called for a tough crack down on negligent directors and managers who are involved in health and safety convictions involving fatalities and want them to face jail. Dave Joyce added "The CWU agrees with this and the Law needs to be able to hold to account the people responsible for a company's activities. When you consider that around 50 people are jailed for animal cruelty offences each year in the UK, it's ridiculous that bosses who cause workers to be killed and seriously injured can go scott-free even if their company is found guilty." The good news is that the Health and Safety Minister Lord McKenzie said last week, during a visit to CWU HQ, "The issue of new legal health and safety duties for directors is still on the table and the ball is firmly in their court. If they don't deliver better behaviours and good practice in line with the newly published HSE/Institute of Directors guidance, then the government will look again at the case for further legislative change."
The closing date for Responses is 7 February 2008 and the consultation paper can be accessed at the following link:
A full detailed response will be submitted by the Health, Safety & Environment Department on behalf of CWU HQ, and Branches and Safety Reps may wish to consider making their own responses.
LTB 950/07 25 October 2007
Corporate Manslaughter and Corporate Homicide Act Implementation and guidance
The Ministry of Justice has confirmed that a new offence of Corporate Manslaughter in England, Wales and Northern Ireland, and Corporate Homicide in Scotland, will come into force on 6 April 2008, and the Government has published new guidance for companies and other organisations on the Corporate Manslaughter and Corporate Homicide Act 2007.
The 2007 Act which received Royal Assent on 26 July 2007, changes the basis on which companies causing death will be liable to prosecution for corporate manslaughter from April 2008. It introduces a new offence, across the UK, for prosecuting and convicting companies and organisations where a gross failure in the management of health and safety results in person's death. Under a new approach, courts will look at management systems and practices across the organisation, providing more effective means for prosecuting the worst corporate health and safety failures.
The 2007 Act is designed to rectify a key defect in the present law which means that organisations can only be convicted of manslaughter if a single individual at the very top of the company is personally guilty and is considered to be a "controlling mind" or a "directing mind and will" of the company; and is in actual control of the day to day operations of a company, or of part of them, and who is not responsible to another person in the company for the manner in which he discharges his duties and carries out the functions of manslaughter, speaking and acting as the company. In practice, that test has proved impossible.
The Ministry of Justice said the present law had failed to reflect the reality of decision-making in large organisations, and therefore failed to provide proper accountability and justice for victims.
The Bill will make it easier to prosecute companies and other large organisations when gross failures in the management of health and safety lead to death by delivering a new, more effective basis for corporate liability.
However, the new offence is about corporate liability, not increasing liability for individual directors or managers who, it is argued, can be held to account through health and safety laws and the common law of manslaughter.
Organisations found guilty of the new offence will be liable to a fine, a remedial order and a publicity order.
The sanction of publicity orders will not come into effect until the Sentencing Guidelines Council has issued guidance on how courts should use the new sanction.
The Ministry of Justice have published guidance providing further information about the 2007 Act and its implementation as follows.
Introduction to the Act
This Ministry of Justice leaflet is intended to provide
a general introduction to the new Act, explaining how the new
offence of corporate manslaughter/homicide works and where it will
apply. It is intended to provide fundamental information to
employers, senior managers and others seeking an overview of the
new legislation. It can be accessed on the following link:
http://www.justice.gov.uk/docs/manslaughterhomicideact07.pdf
Detailed guidance on implementation of the Act
This Ministry of Justice booklet provides a fuller
guide to the new Act, including which organisations are covered,
the sort of incident to which it applies and those that are exempt,
and the test that will be applied by the courts. It is intended for
those who need to know how the new Act will work in some detail,
including health and safety managers and professionals. It can
accessed on the following link: http://www.justice.gov.uk/docs/guidetomanslaughterhomicide07.pdf
Yours Sincerely
Dave Joyce
National Health, Safety & Environment Officer
LTB 1013/07 20 November 2007
Directors' Duties - (NewIOD And HSC voluntary guidance publication "Leading Health and Safety - Leadership Actions for Directors and Board Members")
The Health and Safety Commission (HSC) and Institute of Directors (IOD) new "voluntary" guidance on 'directors' health and safety duties' was launched on 29th October. The HSC had requested the IOD to draw up the new guidance, and the IOD's final draft was cleared by the HSC in September.
When discussed in detail at the TUC Union Health and Safety Specialists (UHSS) Committee, the Unions unanimously opposed the voluntary guidance, favouring legislation and positive legal duties for Directors. The Unions also argued against certain contents of the voluntary guidance, for example, the inclusion of reference to "risk aversion" but the view was ignored.
The Unions also wanted the inclusion of the BP Texas City disaster as a case study of Directors decisions causing mass loss of life and injuries, following the order to cut maintenance to save costs which ultimately led to the disaster. However, it's inclusion in the guidance was refused.
All Unions concluded, when discussed at the TUC UHSS Committee, that the new guidance was 'powerless' and the campaign for legislation should continue. Despite this, the Unions felt that this new guidance is better than nothing and may be useful in trying to promote a change of culture at board level and to use it as a springboard to get the 'legal duties' the Unions want to see introduced.
Presently, the HSE are opposing any new legislation, in spite of a strong body of support amongst Unions and also amongst some employers and some in the IOD. The CCA, TUC and all Trade Unions clearly believe that to avoid further deaths of workers in this country, legislation is required that introduces positive legal health and safety duties on Directors and senior executive managers in companies and organisations.
There was a detailed discussion at the TUC UHSS Committee on the best tactics to use in attempting to promote a change in the law. A number of options were considered, but it was agreed that the TUC should provide new materials on the case for a specific duty for directors, and they should also seek to get a consensus with other interested bodies on how this duty could be brought into law.
It was agreed that an approach to the Government and Health and Safety Commission on this issue at the current time would be counterproductive, as the Corporate Manslaughter and Corporate Homicide Act is due to be implemented next April, and the HSC/IOD Voluntary Directors Health and safety Guidance had only just been published.
It was agreed therefore that the timing of the new campaign would be crucial, possibly using the "Stockline" disaster report as a launch pad, and it was felt best to wait until next year and to achieve a consensus of approach amongst the Unions and others and not to argue for different things (e.g. change HSAW Act, change Companies Act or have new separate Legislation/Regulations).
Instead, the meeting agreed to seek a meeting with Ministers in the spring or summer of next year on the issue, to commission a summary report by Dr Courtney Davis, then form a Joint Working Party involving TUC, CCA and IOSH to agree the report as the basis of the new campaign. This was agreed by all the Union's National Health and Safety Officers forming the TUC UHSS Committee.
In the meantime, 200 copies of the new IOD and HSC publication "Leading Health and Safety - Leadership Actions for Directors and Board Members" have been ordered and will be circulated to Branches and Safety Reps in due course.
Yours sincerely,
Dave Joyce
National Health, safety & Environment Officer
Directors Health & Safety Duties - "Leading Health and Safety: Leadership actions for directors and board members" (INDG417)
HSC and the Institute of Directors (IoD) launched new guidance 'leading health and safety: leadership actions for directors and board members' on 29 October 2007.
The guidance is aimed at all directors, governors, trustees, officers and equivalents in the private, public and third sectors. Set out as an action plan, it is designed to enable boards collectively, and board members individually, to provide a lead on planning, delivery, monitoring and review to ensure their organisation's effective health and safety performance.
The guidance also highlights:
1. the benefits of leadership, with case studies;
2. the legal responsibilities of employers;
3. the legal liability of individual board members for health and safety failures;
4. the cost of leadership failure, with examples of director prosecutions.
The guidance will be a used by HSE and Local Authority Enforcement Officers, helping to facilitate access to and discussion with directors, for example, when:
- considering the contribution boards and board members make to the health and safety performance of their organisations;
- examining the role of the board and board members during investigation of accidents, incidents of ill-health etc.
All Trade Unions and the TUC have agreed that the campaign for legal health and safety duties for directors should continue. Despite this, the Unions felt that this new 'voluntary' guidance is better than nothing and may be useful in trying to promote a change of culture at board level and to use as a springboard to get the 'legal duties' the Unions want to see introduced. In response, the Health and Safety Minister stated this month that the issue of new legal health and safety duties for directors is still on the table and the ball is firmly in their court. If they don't deliver better behaviours and good practice in line with the newly published HSE/Institute of Directors guidance, then the government will look again at the case for further legislative change.
The guidance is available as a free publication. (HSE publication reference INDG417, replacing INDG343) and at the following link: http://www.hse.gov.uk/pubns/indg417.pdf
August 2005 - CWU Responds to England & Wales, Scotland and Northern Ireland - Proposals for New Corporate Manslaughter Offence
Three separate consultation exercises took place in respect of new Corporate Manslaughter Laws for the UK. The Union has responded to the Home Office proposals for England and Wales and to the Scottish Executive's proposals for Scotland. Finally, a response was been submitted to the Northern Ireland Office whose consultation process ended on 25 August 2005.
Summary of the CWU Recommendations:
- The Government has got to "START LISTENING" and be "TOUGH ON CRIME - TOUGH ON THE CAUSES OF CRIME".
- Ensure the Treasury provides sufficient resources to employ additional Inspectors enabling HSE to provide the crucial support and expert assistance to the Police in Corporate Manslaughter investigations.
- The Government must redress the balance of power in favour of victims as currently Industry and the CBI has far too much influence on the government and the HSC.
- Government must ensure that any exemptions for the Crown do not mean that the existing immunity is removed only to be replaced by others.
- Where a worker is killed outside the UK because of the failure of a UK based company to undertake suitable and sufficient risk assessments, the company should be able to be prosecuted in the UK for the new corporate manslaughter offence.
- Fines should be significantly increased for Corporate Manslaughter convictions, and the "draft bill" should be amended to specifically require this. Consideration should also be given to fines pegged to the profits or turnover of a company or organisation. E.g. 10% of company profits for a three year period. Directors of convicted companies should suffer automatic disqualification. Probation Orders against organisations should be included within a range of penalties. The Courts should award punitive damages to victim's families.
- The new legislation should also provide an offence covering serious injuries on a similar basis to the new Canadian law which applies to all offences, manslaughter and injury.
- The definition of "senior management" as used in the Home Office proposals is confusing, too restrictive, and the focus on senior managers is too narrow. The Draft Bill must be amended so that work-related fatalities caused by failures at every level of management - not just at senior level - are admissible for use in the consideration of corporate liability for manslaughter.
- The only way in which the "gross breach" test can be made to work is if it is complemented by the introduction of legally binding health and safety duties for company directors and their Crown body equivalents.
- The "profit from failure" test must be removed because this test opens up a potential legal loophole for negligent organisations and evidence would be extremely difficult to obtain.
- It is vitally important that the government acts to introduce new positive statutory health and safety responsibilities on Directors and Senior Managers as part of or alongside this legislation.
Copies of the three Health, Safety and Environment Department submissions can be found here:
