Corporate Manslaughter

One of my colleagues drew my attention to this case today:

The geotechnical firm which employed a man killed when taking soil samples from a building site last year has become the first to be charged under corporate manslaughter laws.

Cotswold Geotechnical Holdings is accused of gross negligence which led to the death of a 27-year-old junior geologist in September.

I’ll be watching this one with interest. Not least because it is likely to set a precedent and, because this new law; Corporate Manslaughter (2007) Act; worries me.

It worries me because it has been brought about by the failure of earlier prosecutions. These failed because it was difficult if not impossible to identify a link between the root cause of the incident and high level executives. A high profile example being the prosecutions of Railtrack executives in the wake of the Hatfield crash. These prosecutions failed rightly in my opinion.

I understand completely the desire of groups such as the Paddington survivors to see justice done and those responsible held to account – I want nothing less myself. However, those responsible are not always obvious and, indeed, sometimes there is no one individual who may be responsible. Railtrack for example suffered a fractured management system following privatisation. Indeed, at one point, the executive lost management control of the zones to the point where they appeared to be independent fiefdoms. Even within those, the executive director could not realistically manage those individuals under his or her jurisdiction. Unless the director is to be breathing down everyone’s neck, there has to be some delegation and therefore, trust. It may not always be apparent that that trust has broken down until too late. I have witnessed such breakdowns where everything appeared dandy on the surface, but once scratched, the ghastly messy truth lay exposed for all to see. In that case, we picked it up early enough to prevent anything going horribly wrong.

Going back to Hatfield for a moment, the people who made the decision on the ground were not direct employees of Railtrack. Now, it is right and proper that the organisation be held to account for its failure to manage its contractors, but for individuals to be held to account for a decision made that they did not reasonably foresee is unethical. Hatfield, if you like, is an example of unexpected consequences. If you want to blame someone, blame those who set up a contract that financially penalised the maintainer for adhering to the requirements of the Rule Book, thereby encouraging bad decision making. The Railtrack management had every reasonable expectation that the rules would be followed irrespective of financial penalties – i.e. that the patrolman’s recommendation for a speed restriction be imposed be followed, because that is what the rules say should happen. Or, if you really want the person to blame, blame the politician(s) who created the whole sorry mess in the first place; but not an individual who, with the best will in the world could not take the necessary responsibility because they had no direct management control, such was a nature of the organisation at the time. Whether that has improved under Network Rail, I cannot say, although I hear murmurings that suggest things aren’t that different today.

Let’s assume for the moment that a company has in place all the relevant polices and control measures to manage its affairs safely. Yet, despite all this, there is a failing. It could be something unforeseen. It could be someone rushing to get a job done. It could be someone deciding to cut corners. Whatever it is, it is unlikely that a high level executive will have any knowledge or, for that matter, control over activities that may be occurring when he is in bed asleep. Unless there is clear evidence that such things were done with the knowledge and consent of the executive, to prosecute an individual is grossly unfair and morally wrong. A conviction, more so. The previous protection against wrongful conviction – a requirement for that evidence to be demonstrated is removed in this legislation. The government in appeasing the desire for someone to take the blame has removed that protection and thereby weakened the law. Merely being a director is enough to bring a prosecution for corporate manslaughter. We will see how that sits with a jury. And, of course, it may be that this individual is guilty as charged. Again, we will see.

Now, everyone going to work should reasonably expect to come home at the end of their shift in as good a shape as they set out. And the rail industry is killing too many of its own these days. And, let me be clear, if executives are actively encouraging unsafe practices just to get the job done, they deserve all they get – but that should be on the basis of robust evidence of gross negligence or wrongdoing, not just because the law has been weakened to allow the HSE to make a name for themselves and satisfy the tabloid press’ desire to string someone up. Another reasonable expectation of going to work is that you do not go to gaol just for doing your job.

If executives are prosecuted despite taking all reasonable steps to make sure that the people under their jurisdiction remain safe and healthy at work, how long before the talented and capable decide that they might just want something with less risk of going to gaol? The follow-on from that is that the talent pool shrinks, less capable and possibly less conscientious people will fill the gaps. So the workforce find themselves being pressurised to work unsafely because if they don’t there is always another gang that will take their place – and, yes, it does go on. And, if you are going to be prosecuted anyway, you might just as well be guilty as innocent.

That’s the problem with appeasing the mob, with making sure that someone – anyone – carries the can for tragedies even if there is no one person responsible; unexpected consequences. I work in a safety critical industry and have done so for nearly two decades and that responsibility has lurked over my shoulder for all of that time. I accept it as part of the territory. If I get it wrong, there is a heavy price to pay. But would I want to take on a job whereby if someone else, someone that I might not even know, on the other side of the country even, gets it wrong and I go to gaol? No, I would not.

So, I’ll be watching this one. It worries me. It worries me because it has all the hallmarks of bad law.

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Update: See John B’s comment on this thread. I may have misinterpreted the way this law works in practice as a consequence of the manner in which this case was reported. Mea Culpa.

14 Comments

  1. I, too, shall be following this with interest. I know where I stand, pretty generally on the common law and libertarian side, and am death on the corporate and goernmental “system of organised irresponsibility,” as C Wright Mills called it. So much so I’d as lief be done with the fictive “corporate person.” But you adduce somne interesting points too, Longrider.

  2. I’m pretty much the same – although with large organisations finding an individual to blame can be difficult, because, as in the cases I mentioned, there was no single person responsible. Common law, therefore, recognises that you sue the organisation. I am completely comfortable with that. I am not comfortable with prosecuting individuals who cannot possibly have the degree of control required to take the necessary responsibility.

  3. “Whatever it is, it is unlikely that a high level executive will have any knowledge or, for that matter, control over activities that may be occurring when he is in bed asleep. Unless there is clear evidence that such things were done with the knowledge and consent of the executive, to prosecute an individual is grossly unfair and morally wrong.”

    Sadly, morality and common sense long since flew out of the window. Now, it’s how something plays in the media that controls what is done.

    This is not much different to the 50% tax rate – pointless, unfair, and those affected can easily avoid it should they wish. But it was what it stood for to the backbenchers and agitators – ‘punish the rich’ – that mattered, not it’s actual, real-life efficacy.

    We are governed by symbols now.

  4. Unfortunately, that is only too true. We have a government that will willingly reduce the burden of proof to secure a conviction – any conviction – just to be seen to be doing something. The requirement to demonstrate a link between the incident and the decision making of an individual was a feature, not a bug. It protected the innocent from wrongful conviction. New Labour doesn’t care how many innocents end up in gaol – just so long as the prime mentalist can cling onto power for a few weeks more.

  5. I wonder if that means or politicians will be up in court when people die as a result of the NHS procedures, Plods actions against us, hell even soldiers dying in action due to decisions made in the House.

    Mmmm. Thought not.

  6. I think you’ve misunderstood the new legislation, LR.

    The offence under the Corporate Manslaughter Homicide Act 2007 is committed solely by the company, not by its directors. It’s punishable by a fine levelled against the company. See this explanation by an H&S lawyer.

    CGH’s MD Peter Eaton is on trial for manslaughter because the CPS believes it can show Eaton was directly, personally responsible for the actions that led to Wright’s death. That’s the same as if I dug a bear-pit and you fell into it, and isn’t affected by the 2007 law – it’s how negligence manslaughter has worked in E&W since forever.

    (but kudos to everyone who’s chipped in with ZaNuLieBore Are Teh Evil rants based on the wrong interpretation, anyway. What was that you were saying yesterday about *me* not bothering with facts, JuliaM?)

  7. John, You could be right here, I may well have misread it. Under section 18 it states no individual may be held accountable, which appears to contradict section 1 that talks about senior management, and indeed, contradicts the report I linked to.

    We will see how this one pans out. Thanks for that.

  8. Ooops. Still I’m sure we can show a direct correlation between decisions made in the house, and the civil service, and deaths in the NHS and MoD.

  9. A better link would be rail privatisation and Hatfield. The decision to privatise the industry using a horizontal split rather than a vertical one meant that one company owned the infrastructure and rented it out to train operators. It bought in renewals and maintenance. The contracts put in place imposed penalties for lost minutes, so the train operators penalise Railtrack, and Railtrack hit their contractors – this still applies with Network Rail, so far as I am aware. It was the penalty clause that influenced the decision to leave the fault at line speed rather than apply the Rule Book requirement of a speed restriction – after all, it was scheduled to be fixed anyway. Who was ultimately responsible for this state of affairs? The then secretary if state for transport, frankly… Dr Malwhinney who should have foreseen that this would impose undue pressure on individuals and companies to break the rules and take short cuts. it is, after all, human nature.

    Well, that’s my opinion and I’m sticking with it 😉

  10. @7 – the reason senior management are listed in section 1 is that for the *company* to be guilty, its senior management need to be at fault (ie if the accident is caused by Bob the depot manager breaking the rules, but the rules are generally enforced and Bob has been lucky to get away with breaking them, rather than the rules being endemically ignored by the board, then the company isn’t guilty).

  11. As @6 points out, surely the 2007 law is to penalise corporate bodies themselves for those exact endemic failings that cannot be attributed to a single individual. Individuals are still just as responsible (or not) as before, and surely also, in the example you give, the contractor would be liable if the failing was under their jurisdiction?

    Corporate bodies have status in law that gives them in many cases the same status as individuals, why should they not carry a bit of responsibility as well?

  12. Thanks, everyone, a lot to try to think out my position on. The problem for me remains the heinleinian or jungian problem, namely that large organisations can /only/ act as large, stupid and sometimes violent animals. And this is the boil-down effect even when supposing ALL of the members are persons of exclusively high consciousness and good character. Whereas only individual men and women can be can be moral. But, morality must be taught…and yet, by definition, is not a suitable topic in most busienss courses. There is of course the general exhortation to try to ‘make money for your owners, the stakeholders’, even that is hard for these post-modern Isle of Dogs types to come up with!

    All of the foregoing is why I am a great fan of US de-federalisation or re-confederation, and perceive likewise, objectively I think, that the EU is (in my maternal rural Eagle Lake, MN, vernacular) “a crock of shit!” Government here for a fact is simply too big, along with so much of business of course, and so for starters you cannot even get a good baseline count, of the statistical sociopaths.

    Are there only scores of thousands of these rotting round all our necks, or do the dangerously botched run into perhaps the low millions?

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