The 'corporate manslaughter' label is the only achievement the government can claim if the Corporate Manslaughter and Corporate Homicide Bill passes unamended, according to Thompsons Solicitors, which adds that the bill marks a "significant retreat" from the government's policy on the issue.

For the Southall, Ladbroke Grove, Hatfield and Potters Bar crashes, which killed a total of 49 and injured approaching 700 people, the draft law would have made no practical difference in sanctions or establishing individual accountability, the law firm says.

Rather, the bill expressly prevents individuals being held to account, provides a "glaring loophole" for companies to establish complex corporate structures to avoid liability and would encourage companies to shift responsibility for health and safety to more junior managers.

RMT general secretary Bob Crow has forwarded the report to Labour MPs, urging them to support amendments that would prevent the bill becoming a wasted opportunity.

"We have waited patiently for nearly a decade for the government to keep its promise of a proper corporate-killing law," Bob Crow said today.

"To have any effect such a law would expect employers to take workers' health and safety far more seriously, and would put those whose negligence caused unnecessary deaths in the dock and potentially behind bars.

"If this bill is passed as it stands it will achieve neither.

"If the law is to achieve any real purpose it is essential that company directors have specific health and safety responsibilities and stand to be held accountable if their failure to observe them results in death," Bob Crow said.

ends

Corporate Manslaughter and Corporate Homicide Bill: Impact on major rail disaster cases

Thompsons solicitors
November 2006

EXECUTIVE SUMMARY

The Corporate Manslaughter and Corporate Homicide Bill is currently proceeding through Parliament. The Bill, as currently drafted, abolishes the common law offence of Corporate Manslaughter and replaces it with a statutory offence. Sanctions are unlimited fines and remedial orders. There is no individual liability for directors or senior managers under the Bill such that no person will be imprisoned under this legislation.

This paper considers what practical differences the Bill will make with particular reference to how the Bill would have applied to the major railway disasters of recent years.

We conclude:

* The Government has stepped back from its position in 2000 which was the most progressive it has been on this issue. The present Bill represents a significant retreat from that position in a number of respects.
* The Government has performed a complete U-turn on two key issues. The Bill does not apply to unincorporated bodies such as partnerships, whatever their size. On individual liability, Clause 16 expressly prevents this so that there is no personal liability for directors or senior managers under the Bill. Therefore, no person will be imprisoned under this legislation.
* There is a glaring loophole in the Bill in that companies can establish complex corporate structures using subsidiary companies to avoid any liability on the parent.
* The "senior management" test will continue to cause difficulties and has already resulted in many companies pushing down health and safety matters to more junior managers to avoid liability under the Bill.
* Ultimately, the corporate manslaughter label is the only achievement the Government can claim. No new sanctions will apply to the new offence and it will be far harder to secure a conviction for corporate manslaughter than for the existing health and safety offences. The only real difference will be the label.
* On sanctions, it is clear that whilst prosecutions would now arise for corporate manslaughter, the sanctions would be no greater and indeed are more restricted than under health and safety legislation. In addition, with the senior management test, precisely the sort of companies who do not have an adequate safety culture are already taking steps to avoid possible prosecution by pushing health and safety down to more junior managers. This is having the opposite effect of the Government's stated intention that board's should take greater responsibility for health and safety matters
* In respect of the railway disasters which are the subject of this paper, from Southall in 1997 to Potters Bar in 2002, the Bill as currently drafted would make no difference in terms of sanctions. Bereaved families and injury victims are unlikely to consider it adequate that the only positive outcome of the Bill would be the ability to secure a manslaughter conviction and attach that label to companies guilty of gross corporate negligence.

INTRODUCTION

The Corporate Manslaughter and Corporate Homicide Bill is currently proceeding through Parliament. The Bill passed second reading on 10th October 2006 and the Standing Committee debates concluded on 31st October 2006.

The Bill, as currently drafted, abolishes the common law offence of Corporate Manslaughter and replaces it with a statutory offence. Sanctions are unlimited fines and remedial orders. There is no individual liability for directors or senior managers under the Bill such that no person will be imprisoned under this legislation. Prosecution of offences will be the responsibility of the Crown Prosecution Service.

This paper considers how the Bill would have applied to the major railway disasters of recent years if it had been in operation when they occurred, to ascertain whether the Bill will make any practical difference in the prevention of such incidents and the prosecution of those responsible.

MAJOR RAILWAY INCIDENTS 1997 - 2006

Southall Rail Accident

This occurred at Southall East Junction on 19th September 1997 when a high speed train from Swansea to London Paddington operated by Great Western Trains collided with a freight train operated by English Welsh and Scottish Railways which was crossing to Southall yard. 7 died and there were 139 injuries.

The underlying causes of the accident were the failure of Great Western Trains' maintenance systems to identify and repair an automatic warning system fault on the high speed train, the failure of Railtrack to put in place rules to prevent normal running of a train with the automatic warning system isolated and the failure of Great Western Trains to manage the automatic train protection pilot scheme.

The corporate manslaughter prosecution against Great Western Trains failed. They were fined £1.5 million for an offence under the Health and Safety at Work Act 1974.

Ladbroke Grove

On 5th October 1999 a commuter passenger train operated by Thames Trains passed a red signal at Ladbroke Grove and collided with a high speed passenger train operated by Great Western Trains. There were 31 fatalities and over 400 persons injured.

The underlying causes of the accident were deficiencies in the route training of the driver, poor sighting of a signal and a failure by Railtrack to respond to numerous previous SPAD's (signals passed at danger).

The Ladbroke Grove Public Inquiry under Lord Cullen took place during 2000 and the two reports published in 2001 made 163 recommendations. Railtrack were blamed for 'institutional paralysis' and failures which were 'serious and persistent' and 'lamentable' leading to the disaster.

The report of a separate Public Inquiry into train protection systems was published in 2000 and included 39 recommendations.

Thames Trains were prosecuted for offences under the Health and Safety at Work Act 1974 concerning failures in respect of driver training. They were fined £2m.

Railtrack's successor Network Rail, was also prosecuted under the 1974 Act. On 31st October 2006 Network Rail pleaded guilty to charges which included an obscured signal and failures in respect of signal visibility. The charges also alleged a failure to ensure a signals sighting committee met after 6 signals passed at danger between 1996 and 1998 and a failure to conduct any adequate risk assessment or investigations following the SPAD's. The matter has been adjourned for a further hearing on 18th December 2006 at Blackfriars Crown Court when Network Rail will confirm in writing the full basis of its guilty plea.

Hatfield

On 17th October 2000 a high speed train from Kings Cross to Leeds operated by Great North Eastern Railways de-railed on passing over a section of broken rail south of Hatfield station in Hertfordshire. There were 4 fatalities and 70 persons injured.

The immediate cause of the accident was the fracture and subsequent fragmentation of the rail due to the presence of multiple and pre-existing fatigue cracks. The underlying causes were the failure by Balfour Beatty Rail Maintenance Limited to effectively manage the inspection and maintenance of the rail and Railtrack's failure to manage effectively the work of Balfour Beatty and to implement an effective rail renewal operation at the scene of the accident.

Manslaughter charges were brought against Network Rail as successors to Railtrack, Balfour Beatty and 6 managers from both companies. Those 6 managers and a further 6 were charged with breaches of the Health and Safety at Work Act 1974 as were Balfour Beatty and Network Rail.

The manslaughter charges were dismissed. Balfour Beatty had pleaded guilty to a health and safety charge relating to the derailment. They were fined £10m but this was subsequently reduced on appeal to £7.5m. Network Rail was found guilty of health and safety charges and was fined £3.5m. 5 individual Defendants facing health and safety charges were found not guilty.

Potters Bar

On 10th May 2002 a Kings Cross to Kings Lynn train operated by West Anglia Great Northern de-railed on passing over points on the approach to Potters Bar station. There were 7 fatalities and over 70 injured.

The immediate cause of the accident was the failure of the points causing them to move whilst the train was passing over them. An underlying cause was that the points were poorly maintained and out of adjustment. Whilst it has not yet been clearly established for certain how they came to be in this condition, the maintenance staff employed by Jarvis had received no specific training in the installation and maintenance of adjustable stretchers bars which was a key feature of these type of points. The reason for the lack of any training programme was a failure to produce a procedure for the installation of such equipment despite a stated intention by British Rail to do so back in 1993.

The Crown Prosecution Service have announced that there is insufficient evidence to pursue manslaughter charges against any individual company. However, charges under the Health and Safety at Work Act 1974 are still being considered and a decision will be taken after the Coroner's Inquest to be held in 2007 as an enhanced Inquest with a High Court Judge sitting as Coroner.

THE PROPOSED LEGISLATION

Discussion of a Corporate Manslaughter Bill goes back many years and in1994 the Law Commission published a consultation paper proposing a new regime of corporate liability for manslaughter. This process concluded in 1996 with Law Commission recommendations. In 1997, at the first party conference of the New Labour Government the then Home Secretary Jack Straw announced that the Government would enact the recommendations for the new offence of Corporate Killing.

A Working Group was then set up but it was not until 2000 that there was any progress and this was simply a further consultation paper. Nevertheless, the Government's position in 2000 was the most progressive it has been on this issue and the present Bill represents a significant retreat from that position in a number of respects. In particular the Government rejected the Law Commission's suggestion that only incorporated bodies should be liable and put forward their preferred alternative that the new offence be applied to "undertakings" as used in the 1974 Act. This would therefore include unincorporated bodies such as partnerships, small businesses etc.

In addition on the crucial issue of individual liability in "Reforming the law on involuntary manslaughter: The Government's proposals: Home Office May 2000", the Government stated:

The Government considers that there is no good reason why an individual should not be convicted for aiding, abetting, counselling or procuring an offence of corporate killing.

The Government also proposed that any individual who could be shown to have 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 a disqualification from acting in a management role in any undertaking and from carrying on a business or activity in Great Britain.

Since then the Government has performed a complete U-turn on both of these issues. The Bill does not apply to unincorporated bodies and, on individual liability, Clause 16 entitled "No Individual Liability" provides:

An individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter.

But before then, there would be considerable feet dragging. There was no progress between closure of the 2000 consultation and the election of May 2001 when the Labour Party Manifesto again repeated the commitment to bring forward legislation. It was not until March 2005, just 2 months before the next General Election, that the Government published the draft Corporate Manslaughter Bill. This was subject to scrutiny by the All Party Home Affairs and Work and Pensions Select Committees whose joint report in December 2005 made 57 recommendations.

In particular the Committee expressed concerns at the delays:

We are concerned at the length of time it has taken the Government to introduce a draft Bill since it first promised legislation on corporate manslaughter. We believe there should be no further unnecessary delays. We urge the Government to introduce the Bill, including our recommended changes, by the end of the present Parliamentary session, making provision for carry-over if necessary.

They noted in particular the loophole in the Bill which prevented parent companies from being prosecuted when a gross management failure in that company had caused death in one of their subsidiaries. This is because the Bill requires a civil duty of care and, under the current law, courts have not ruled that parent companies have a duty of care in relation to the activities of their subsidiaries. This is, therefore, a glaring loophole in the Bill in that companies can establish complex corporate structures using subsidiary companies to avoid any liability on the parent company.

They heavily criticised the senior management test which would re-introduce many of the problems which had occurred previously with common law manslaughter prosecutions. This has since been modified by Government but there remains a "senior management" test which will continue to cause difficulties and has already resulted in many companies pushing down health and safety matters to more junior managers to avoid liability under the Bill.

There was criticism of the proposed sentencing arrangements and, specifically, the joint report concluded:

We believe it sensible to encourage directors of a company to take responsibility for ensuring their company complies with a remedial order. We therefore recommend that the Government amends the Bill in order to make it possible for directors to be charged with contempt of court if the company has failed to take the steps required by the court.

The report also commented:

We share the disappointment of many that the Government has not included more innovative corporate sanctions in the draft Bill. We welcome the fact that the Government is now looking at the issue of alternative penalties but believe that the scope of this review should be widened to look at alternative sanctions for non-regulatory offences. Remedial orders and fines provide an inadequate range of sanctions for sentencing… We therefore think a wider range of sanctions is essential.

In respect of individual liability they reported:

…we believe that if the draft Bill were enacted as currently drafted there would be a gap in the law, where individuals in a company have contributed to the offence of corporate manslaughter but where there is not sufficient evidence to prove that they are guilty of individual gross negligence manslaughter…

We believe that, just as the Government has taken the decision that when a company's gross management failing caused death it should be liable for a more serious offence than that available under health and safety legislation, so it should be possible to prosecute an individual who has been a secondary party to this gross management failing for a more serious offence also. We therefore recommend that secondary liability for corporate manslaughter should be included in the draft Bill.

By analogy with the offence of causing death by dangerous driving the maximum term of imprisonment could be set at 14 years

The Committee also criticised the Government U-turn on the question of whether the consent of the Director of Public Prosecutions be required for private prosecutions. No such consent had been required in the Law Commission 1996 recommendations. The Government endorsed this position in the 2000 Consultation Paper but then changed their position requiring such consent when the draft Bill was published.

In the Government response to this report in March 2006 very few concessions were made and that remains the case in the Bill as it currently stands after Committee stage.

PARLIAMENTARY DEBATE

On 10th October 2006 the Bill was debated at length in the House of Commons on the second reading of the Bill.

In presenting the Bill, the Home Secretary John Reid, quoted Mr Justice MacKay when he described the circumstances of the Hatfield crash in 2000 as:

…the worst example of sustained, industrial negligence in high-risk industry that he had ever seen.

When questioned about imprisonment, he responded:

Basically, since we are considering a corporate offence, imprisonment will not be an option because individuals will not answer on behalf of any company or corporate organisation except in a legal capacity. Fines will be unlimited and one would expect substantial fines for the sort of offence that we are considering.

Martin Salter MP whose constituents were included in the casualties of Ladbroke Grove expressed about fines being dwarfed by company profits:

After pleading guilty to health and safety offences, Thames Trains got away with a £2m fine. That is a fraction of the money that the directors made from the 2 management buy-outs that have occurred since rail privatisation.

He went on to question what difference the legislation would have made had it been on the statute book at the time of the disaster. In reply the Home Secretary stressed the availability of unlimited fines and remedial orders but failed to point out that these were available already under the 1974 Act.

When asked about individual liability of the Directors the Minister suggested:

This framework would not be improved by introducing secondary liability. If individuals have acted recklessly or grossly negligently or in a way which contravened health and safety law, they would be guilty of a criminal offence under existing laws. That is the current position. The new offences are intended to sit beside those offences and provide a more effective way of attributing manslaughter to companies and corporate organisations. It is not a part of that aim for the offence to be a vehicle for extending or re-defining when individuals are guilty of offences.

But this ignored his own earlier comments that:

... the law as it stands in relation to corporate liability makes prosecution in such cases extremely difficult. A prosecution for corporate manslaughter can only proceed if gross negligence can be proved against individual senior managers. That means that the Courts must judge corporate negligence on a narrow and sometimes artificial basis. The result is only a handful of corporate manslaughter prosecutions have ever been brought successfully. Furthermore, all have been against small companies, rather than large organisations such as those involved in the tragedies I mentioned.

The Home Secretary even conceded the extent of the Bill's limitations:

The Bill is limited, yet important. I do not claim that it will do everything everyone wants - that is why that I say it is limited…but I do claim that it is important in several different ways.

Concerns about the Bill's ineffectiveness were not confined to Labour MP's. Dominic Grieve, a Conservative MP, expressed concern that:

…another possible consequence of the Bill is that it will depress fines imposed for deaths that are only prosecuted under the Health and Safety at Work Act. Might that not be an unintended consequence of the new framework?

The point being made here was that the fines levied on Great Western Trains, Thames Trains, Network Rail, Balfour Beatty etc. under the 1974 Act would in the future be confined only to cases brought under the Bill with lower fines being given out in health and safety prosecutions brought under the 1974 Act. That is a real risk as the wording of the Bill is such that corporate manslaughter charges will be far harder to prove than health and safety prosecutions.

There is also the issue of corporate avoidance. Liberal Democrat MP Edward Davey expressed concern that:

If the Government stick by their proposal …they will be storing up problems. The real problem is that the Government are giving an incentive to delegate health and safety issues outside the immediate realm of senior managers. According to surveys of businesses, that is already happening in anticipation of the Bill. Directors are passing down responsibility of health and safety matters to junior managers …it would be perverse if the measure were to reduce the importance of health and safety to corporations.

Conservative MP James Duddridge endorsed this:

…I am worried that health and safety will be delegated in an organisation to below the level of senior managers, to avoid overall prosecution. None of us supports that.

On sanctions, Labour MP Ian Stewart was concerned about the lack of custodial sentences for Directors in appropriate cases:

I have considerable sympathy for those who argue that if directors can be given a custodial sentence for fraud or for breaking environmental or food safety laws, that should be an option for the punishment of corporate manslaughter…will [the Minister] also look at the Canadian system of corporate probation and consider tabling amendments to include such provisions at a later stage in the Bill?

Labour MP Terry Rooney, co-Chairman of the Joint Committee endorsed the need for custodial sentences:

Like many others who have spoken in this debate, I remain absolutely convinced that we will not make progress in this arena until we have individual liability of Directors…the day that the first person goes to jail is the day that we will really see a change in attitude.

He directly addressed the question under consideration in this paper:

When the Committee took evidence from representatives of the Home Office, I pressed them in particular on whether the Bill would have resulted in any change in the failure to prosecute for major disasters that have taken place over the last 10 or 15 years. The answer was no. No matter how horrendous those matters were - we have heard the comments of judges today, the Bill would have made no difference because no company or individual would have been prosecuted.

In concluding the debate, the Home Office Minister Gerry Sutcliffe, disclosed the only real achievement of the Bill:

Mr Grieve expressed the concern that the Bill might not add anything to the existing health and safety legislation. For the families of those killed through the abject failure of organisations to meet their health and safety responsibilities, the Bill is far from pointless. It is important that culpable behaviour be properly labelled especially to the relatives of those who have died.

Ultimately, this is the only achievement the Government can claim. No new sanctions will apply to the new offence and it will be far harder to secure a conviction for corporate manslaughter than for the existing health and safety offences. The only real difference will be the label. A company will be labelled as having been found guilty of corporate manslaughter. The Home Secretary was absolutely correct to concede that the Bill was limited as this is the only real difference that the Bill is intended to make.

This came more clearly to light when the Bill was then debated at length in Committee where the key issues were discussed in greater depth. These included individual liability, sanctions, application to partnerships and small businesses and the senior management test.

Senior Management Test

Although Government amendments did water down the senior management test as originally proposed, there remains a senior management test which is already causing difficulties. Liberal Democrat MP Edward Davey expressed concern that:

There is also a perverse incentive. Senior Managers might be advised by a good corporate lawyer that it would be reasonable to remove responsibility for all health and safety issues down to the lowest point, thereby avoiding any future prosecution for corporate manslaughter.

He referred to the Health and Safety Executive research which found that:

…in relation to those companies that had delegated responsibility down, one of the main reasons why the companies have done that was because of the forthcoming corporate manslaughter legislation.

On the issue of another avoidance mechanism, complex corporate structures of subsidiaries and parent companies, the Minister, Gerry Sutcliffe, sought to play down this point:

The issue of holding companies was raised…but we believe that it is something of a distraction…

In reply, Labour MP Tony Lloyd endorsed Conservative concerns on this point:

I hope that the Minister will reflect on what he has just said. We know that an increasing number of equity-owned companies operate off-shore in our economy…. There is significance in the point made [by a Conservative member] about the possibility of a holding company avoiding liability simply by making a subsidiary bankrupt. That is not a diversion but concerns a real important measure that undermines the impact of the legislation.

Sanctions

Little progress was made on sanctions but a key amendment to introduce corporate probation orders remains under consideration.

What is Corporate Probation?

It is a supervision Order imposed by the court on a company that has committed a criminal offence. You cannot, of course, send a company to prison and fines are often ineffective, so a corporate probation or remedial Order is the most effective means whereby a court can require a company and its officers and directors to alter their conduct in a particular way.

For example, in the case where a company has been found guilty of gross negligence and been convicted of corporate manslaughter, the court will want to impose penalties which penalise the company for the offence, which will deter future offences and which will instigate a change in culture, procedure, organization or activity so that such future deaths or injuries do not or are unlikely to occur.

If a company is fined, say, one million pounds, the fine is paid and that is the end of the matter.

However under a corporate probation or remedial Order, a company will be placed under supervision of the court. Half the fine could, for example, be suspended pending satisfactory completion of the probationary period. The court may need to appoint an expert or body to supervise the probation.

The terms of the probation Order might be that the company has to review its safety policy, its safety procedures, initiate a training programme for directors and senior management or others, require a reduction in accidents etc….; if after completion of the probationary period the company has satisfied the terms of the Order that is the end of the matter. If the company fails to co operate or comply, the suspended sentence could be invoked and further penalties could be imposed, including, if felt desirable, the disqualification of directors.

To carry out the Order the court will probably (but not necessarily in all cases) appoint an expert or body such as the HSE to supervise the company and report back to the court. The Order and other penalties would also be recorded at Companies House, on the company's records.

The attraction of this type of Order is that it gives the court the power to set terms which will suit the companies own situation and achieve a positive change in the way in which the company operates. It provides a flexibility which other penalties do not and has as its objective, achieving a positive and long term change in company behaviour.

Where has Corporate Probation been introduced?

The United States of America and Canada are the main countries to introduce this sentencing option.

In the USA corporate probation can be imposed on corporations that commit criminal offences. The main objective in the USA seems to be aimed forcing companies to pay restitution, preventing them from hiding assets or subverting payment of restitution; but it is clear that the US Sentencing Council also envisaged other types of corporate criminal offence by giving courts the power to introduce "any probationary conditions related to the nature and circumstances of the entire case and the purposes of sentencing"

In Canada the purpose of corporate probation Orders is aimed at improving occupational safety. The introduction of such Orders came about as a result of the 1992 Westray Mine Disaster in which 26 persons lost their lives. Prosecution of the company failed because of the need to identify a controlling mind or directing mind, similar to problems faced in similar UK prosecutions.

This led to all party support for a new bill which had similar objectives to the Corporate Manslaughter Bill currently before the House of Commons.

However, in the lead up to the Canadian Bill, considerable thought was given to alternative sentencing options.

The new Canadian law created a criminal code duty on "every one who undertakes, or has the authority, to direct how another person does work or performs a task… to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task"

The Canadian law provides for probation Orders which could be useful in directly influencing the future conduct of organizations convicted of offences.

Among the optional probation conditions available are:

* making restitution
* establishing policies, standards, and procedures to reduce the likelihood of subsequent offences (however, the court must first consider whether it would be more appropriate for another regulatory body to supervise the development of implementation of such policies, standards and procedures)
* communication those policies, standards, and procedures to its representatives
* reporting to the court on the implementation of those policies, standards and procedures
* identifying the senior officer responsible for compliance with those policies standards and procedures
* providing, in the manner specified by the court, the following information to the public, (i) the offence of which the organization was convicted, (ii) the sentence imposed, and (iii) any measures taken by the organization to reduce the likelihood of its committing further offences, and (iv) complying with any other reasonable conditions considered desirable by the court in preventing subsequent offences by the organization or to remedy the harm caused by the offence.

Government Position on corporate probation

Minister Gerry Sutcliffe, responded positively to the proposal:

I am prepared to consider corporate probation and the lessons of what went on in Canada, where there have been some useful experiences. There are matters that I should like to consider…and corporate probation is one of them.

Later he added:

…the issues are is about changing the culture of an organisation and making sure that the penalty meets the crime. However, under the amendment, the reparatory orders and the issue of probation, I am sure that between us we can come up with a solution that meets those requirements…let us consider what happens in Canada where certain positions are identified as being responsible. I shall consider the matter…I shall come back on Report to see what can be done.

Liability of Directors

In opposing an amendment to include individual liability of Directors in prosecutions, Government Minister Gerry Sutcliffe, suggested that this was not a matter for the Bill:

…we see a significant problem with saying that a single person who can take responsibility for the organisations failure can be and should be identified…In our view it is not enough to move directly from the new Bill to new individual accountability. That needs to start from current individual responsibility…

So if secondary liability is not the answer, how do we address questions about board level responsibility? That is an important issue that goes outside the remit of the Bill and wider than my Home Office responsibilities… The Health and Safety Commission has been considering how [the] situation can be improved and … has also been considering whether Directors should be under specific statutory duties in relation to health and safety… Individual liability is an issue that many organisations, particularly the Trade Union movement have long argued for. Despite any sympathy that I might have had in the past for the arguments represented, that is not a matter that the Government can or are willing to move on in this case.

IMPACT OF THE BILL

Applying the wording of the Bill as currently drafted, to the facts of the railways disasters as set in their respectively inquiries, it is possible to come to a view on whether the Bill would make any difference.

In respect of Southall, bearing in mind the history of near accidents which had not been acted upon, charges may have been brought under the new legislation had it been in force at the time.

In connection with Paddington, it is likely that Railtrack would have been successfully prosecuted under the new law.

Similarly, following Hatfield, it is likely that prosecutions under the new law would have succeeded.

Applying the terms of the Bill to Potters Bar, prosecutions would probably have succeeded against Jarvis and Network Rail.

It is clear that it will be much harder to secure a conviction for corporate manslaughter than it is presently to secure convictions under the Health and Safety at Work Act 1974. This appears to be the clear intention of Government - that corporate manslaughter is a more serious offence. However, the sanctions are either the same or more limited. Both carry unlimited fines and both allow forms of remedial order. Only in respect of prosecutions under the 1974 Act does liability of directors apply.

It is clear, therefore, that whilst prosecutions would now arise for corporate manslaughter, the sanctions would be no greater and indeed are more restricted. In addition, with the senior management test, precisely the sort of companies who do not have an adequate safety culture are already taking steps to avoid possible prosecution by pushing health and safety down to more junior managers. This is having the opposite effect of the Government's stated intention that board's should take greater responsibility for health and safety matters.

Overall, in the absence of individual liability, and without innovative sanctions such as corporate probation, the Bill's only achievement is that identified by Home Office Minister, Gerry Sutcliffe, in the House of Commons debate, namely that the company would be labelled as having been found guilty of corporate manslaughter. The directors would not be imprisoned or disqualified for this and the company would face the same sanctions as it does at present for health and safety offences but with greater room to avoid conviction because of the defences available under the new law.

Indeed, there is a very real risk that the result will be to reduce fines because corporate manslaughter prosecutions will be rare whilst prosecutions under the Health & Safety at Work Act 1974 will be regarded as a less serious offences justifying lower penalties.

CONCLUSION

The Corporate Manslaughter Bill has been dogged by delays, U-turns and Government imposed limitations. Stripped of any new or innovative sanctions and relying upon existing penalties, the Bill is left as a pale shadow of the Law Commission recommendations in 1996 and the Government's own proposals in 2000. Its only real point is that confirmed by Home Office Minister Gerry Sutcliffe in the House of Commons debate:

For the families of those killed through the abject failure of organisations to meet their health and safety responsibilities, the Bill is far from pointless. It is important that culpable behaviour be properly labelled especially to the relatives of those who have died.

Overall, the Bill is a considerable disappointment, particularly on key issues such as directors liabilities and the insistence on retaining a form of senior management test whilst retaining the same or more restricted sanctions as those available under Health and Safety legislation.

Whilst the Government has suggested that directors' liabilities may arise from other reviews presently ongoing, and whilst a re-consideration of corporate probation has been promised for the next stage in the House of Commons (Report Stage) the Bill as it stands is a pale shadow of even the Government's own proposals in 2000. It is to be hoped that some progress can be made in the Bill on corporate probation to give the legislation greater credibility and the prospect of making a difference beyond mere labelling.

There remain numerous loopholes and it is no surprise that there is evidence of companies already adopting measures to take advantage of possible gaps in the legislation rather then properly addressing these and delivering an effective health and safety culture. Indeed there is every danger that rather than improving health and safety, the legislation could have the opposite effect by encouraging companies to take health and safety responsibilities away from senior managers to avoid possible prosecutions.

It is certainly the case, that in respect of the railway disasters which are the subject of this paper, from Southall in 1997 to Potters Bar in 2002, the Bill as currently drafted would make no difference in terms of sanctions. Bereaved families and injury victims are unlikely to consider it adequate that the only positive outcome of the Bill would be the ability to secure a manslaughter conviction and attach that label to companies guilty of gross corporate negligence.

Thompsons Solicitors
November 2006

Letter from RMT general secretary Bob Crow to Labour MPs

Dear MP

Corporate Manslaughter and Corporate Homicide Bill, Impact On Major Rail Disasters - Thompsons Solicitors Study

As you will be aware the Report Stage of the Corporate Manslaughter and Corporate Homicide Bill will take place on Monday 4th December 2006.

The RMT has a particular interest in this issue arising from the series of rail disasters which graphically demonstrated the need for effective legislation on corporate killing.

To contribute to the Parliamentary debate we have commissioned Thompsons, the UK's largest firm of trade union solicitors, to produce the enclosed report on what practical differences the Government's proposals will make.

Together with the rest of the Trade Union and Labour movement the RMT has consistently argued for new legislation on corporate killing which is why we welcomed the Government's decision to publish the Bill.

You will see from the report, however, that Thompsons Solicitors believe the Bill is a "significant retreat" from the Government's original proposals. They also conclude that in respect of the railway disasters which are the subject of the report, from Southall in 1997 to Potters Bar in 2002, "the Bill as currently drafted would make no difference in terms of sanctions."

We do hope that even at this late stage amendments can be made to ensure that the Bill is not a missed opportunity and we hope that you will find this report will assist you in your deliberations.

Yours sincerely

Bob Crow
RMT General Secretary