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In legal circles there has been much frustration with the failure to successfully prosecute any of the companies involved with such major disasters as the Zeebrugge ferry or the rail disasters at Southall Potters Bar or Hatfield.

The general public also feel the frustration - being unable to understand why the law appears to be so impotent in the face of clear safety failures.

It now looks increasingly likely that a new Corporate Manslaughter Bill will be in force by July of this year to address these injustices, at least in part.

If you are not already aware of the changes in the Bill, you need to act now and ensure your organisation is adequately prepared.

We are participating in a “Corporate Manslaughter Conference”, being run by JSB in central London. It may be worth your while to book a place on the 22nd March.

Alternatively, call in one of our Consultants to discuss the implications of the new Bill for your organisation and recommend what action you need to take. Call us now on 08456 44 53 52

Just a few days ago the media reported a case of Avian Flu (H5N1 strain) on a Suffolk Turkey farm. There was concern at the end of 2005 about the possibility of the virus reaching our shores and this news has served to raise those concerns again.

We published two articles about Avian Flu and most of the information is just as relevant today. If you are interested, you can view them at:

• http://www.edp-uk.com/newsletters/birdflu.htm
• http://www.edp-uk.com/newsletters/birdflu2.htm

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Corporate Manslaughter Bill is on the Way

The Corporate Manslaughter Bill has been in progress for a long time since it was first recommended more than a decade ago. Since then we have seen many “false dawns”.

However, progress through the parliamentary process is now quite advanced so that, with a fair degree of confidence, we can expect it to become law during 2007. It will apply to England, Wales, Northern Ireland and Scotland.

Corporations and most public bodies will be covered by the Bill, though not the Crown – to the dismay of many trade unions. However, in general the Bill is being welcomed by a broad range of organisations, including the TUC and CBI

So what is the reason for this new Bill?

Its justification is perhaps well summed up in the words of Gerry Sutcliffe – Home Office Minister, who is reported as saying:

“For too long the law has made it extremely difficult to bring to justice large companies whose management failures have resulted in death. The publication of the Corporate Manslaughter and Corporate Homicide Bill shows the Government’s commitment to bringing forward a criminal offence so that companies that have dismally failed to pay proper attention to people’s safety are brought to book.”

Until now it has proved very difficult to successfully prosecute an organisation for corporate manslaughter. To do so, it is first necessary to identify a “controlling mind” in the organisation – someone who can be demonstrated as directing the activities of the organisation.

In addition, that person must be found personally guilty of manslaughter, through a gross breach of their duty of care toward an individual who was killed as a result of their negligence.

In the case of larger organisations, these hurdles have proved to be insurmountable barriers to prosecuting the organisation itself, even when the evidence for a major failure is abundantly clear – consider for example some of the more high profile rail and ferry disasters. Over the past 14 or 15 years, there have been only 7 successful prosecutions and in every case it has been a small organisation where a director has been intimately involved in the day to day control of the organisation’s activities.

So how are things set to change?

The most significant change with the new Bill is that it will no longer be necessary to find a “controlling mind” guilty of manslaughter before an organisation can be prosecuted for corporate manslaughter.

The burden of proof will be summed up in the following three points:

• The organisation clearly owed a duty of care to a person who was killed and that duty was breached
  
  
• The breach of duty is considered to be a “gross breach”, meaning that it falls far below that which is reasonable in the circumstances.
  
  
• A substantial element of the breach can be traced back to failures by senior management.

Although there is no provision under the new Bill to impose penalties on individual officers of the organisation, they may still be prosecuted as individuals with the charge of manslaughter.

Wider implications

The implications for prosecution of corporations (and separately of individuals) are self evident. What is perhaps less obvious is the consequence of an investigation associated with the case. The prosecution will be seeking to identify all points of failure within an organisation, which implies extensive investigation of activities, behaviour patterns, attitudes, systems, policies, etc throughout the organisation. Apart from the disruption, such revelations, coupled with a conviction could prove devastating for the public standing and business prospects of any company.

Every organisation would be wise to avoid ever facing such a prosecution and the best defence is to have in place robust health and safety policies and systems.

To learn more and for the opportunity to question the experts, consider booking a place on the JSB “Corporate Manslaughter Conference”, scheduled for the 22nd March in central London.

In addition, if you are at all unsure about your provision for Health and Safety, contact us to arrange for one of our Consultants to undertake a Compliance Review or Audit of your organisation.

For reference, you can view the text of the draft Bill “As amended in Grand Committee” as of the 18th January 2007 at http://www.publications.parliament.uk/pa/ld200607/ldbills/028/2007028.pdf

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Have Procedures in Place and Follow Them

It is amazing how practices that are clearly hazardous are allowed to continue over long periods, perhaps for no better reason than that is the way we have always done it.

There was a practice along those lines at a company based in Runcorn. Apparently, when the goods lift would occasionally stop working, it was routine for employees to enter the motor area above the shaft and hand wind the lift.

Nothing was done about the practice until one occasion when the metal panel, on which two women employees were standing, gave way so that the women fell into the shaft. One of the women managed to break her fall by holding on to some chains. The other fell some 30 feet onto the top of the lift car, partially severing her leg and breaking her ankle.

The company was fined £20,000 with an additional £10,000 in costs for “failing to adequately monitor and instruct employees that the procedure for dealing with a lift breakdown was to inform the lift engineers and not to take any remedial action themselves”

You can read further details about the case on the local council’s website at http://www2.halton.gov.uk/content/newsroom/newsarchive/427341

Relying on the fact that there has never been an accident before is not an option. You must have the right processes in place.

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This is the first newsletter of 2007 and undoubtedly the two main items of legislation of which you need to be aware are:

• Corporate Manslaughter Bill - described in more detail in this month’s main article
  
  
• The new Construction (CDM) Regulations due to come into force in April 2007. Apart from simplifying existing construction legislation, there is a tightening up of regulations as they affect the client, designers, principle contractor and contractors.

Ensure you have the best advice and the right systems in place to protect your employees and your business.

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