Corporate Killing – How Would YOU Plead?
By Paul McGurl - Risk & Safety Solutions on Sunday, 13th June 2004.
After consultation on the issue of corporate killing in 2000, employers still ask, “Will these controversial proposals make the Queen’s Speech this autumn and what are the likely consequences to my business of any new law?”
Imagine the scene. You get to work and it’s full of people, buzzing with the sound of them all working diligently. Of course, on any normal day you would be pleased. The only problem is, this is not a normal day – an employee has had a serious accident that could prove fatal. The people working so hard are environmental officers, health and safety officers, the press and police officers. Suddenly, these officers are not only taking statements from those involved, they are seizing documents and asking you questions – under caution – the answers to which may implicate your company or yourself personally in the commission of a criminal offence. You realise that, if the employee dies, investigations may lead to a charge of corporate killing against the company, and manslaughter against yourself and other directors or senior managers.
Apart from the almost certain public flogging you could expect from the national press, there would also be the possibility of large fines, imprisonment and a criminal record for manslaughter. Not the best of conditions to help your business flourish. Pure fantasy? Maybe, or then again, maybe not.
In fact, these are only some of the consequences of the proposed government bill on corporate killing and manslaughter. It is widely believed that the corporate killing bill is likely to be included in the Queen’s Speech this autumn.
The consequences for every type of establishment in Britain, which provides employment, will be immense after the introduction of such a bill. The extension of previous law means that it will apply to all ‘employing organisations’, with the exception of government bodies. According to the original Home Office consultation document, this means any new law will encompass around 3.5 million businesses including non-corporate undertakings, partnerships, unincorporated charities and one to two person businesses. Holding companies that allow subsidiaries to allow risky practices may no longer be able to evade liability. They too could find themselves as defendants.
Current law requires identification of the ‘controlling mind’ of an organisation responsible for the death. Now all that will be required is to show that the corporations’ conduct was responsible and that it ‘fell far below what could reasonably be expected’. Individuals would continue to be prosecuted for manslaughter, in cases where ‘management failure’ caused the death, the firm itself could be convicted of the new offence, therefore removing the need to identify the ‘controlling mind’. The result will allow employers to be prosecuted and should make convictions substantially easier to secure.
What are the implications? There will be an almost mandatory requirement for businesses to conduct a thorough review of its health and safety provisions. If need be, install further precautionary measures before the implementation of any new act. Companies must develop a balanced approach to safety, know how to identify hazards, assess risk and reduce that risk to an acceptable level. Directors must keep up-to-date on safety issues ensuring that the systems in place are consistent and of the highest standards possible. Examination of management systems will help decide if a company’s standard has fallen below what could reasonably be expected. Therefore, it will become compulsory for those who want to ensure satisfactory management practices to regularly scrutinise its procedures.
The inevitability of the new offences should be a wake-up call to all undertakings and board members. It would be a timely and advisable – indeed a preventative measure – for businesses to begin assessing and amending safety management systems to ensure their conduct does not fall far below the level expected. This should also warn individuals, holding director or senior management positions, to take an active role in the implementation of new measures and not merely turn a blind eye, especially if they do not wish to face individual charges for manslaughter. There would be few things that could focus the mind like the prospect of ‘public shaming’, and the stigma attached, which would be inevitable following a conviction for the avoidable killing of a person.
“I didn’t realise…..” has never been a viable defence in law. If you do not have the resources “in-house” to cope, there is a wealth of sound advice, assistance, guidance and training available to you. But take care, there are plenty of charlatans too. Think, as you would when buying any other vital supply for your business. Likewise, cheapest isn’t always the best bargain. Here are some helpful suggestions :
Look for a provider belonging to a professionally recognised body. They will be bound by a code of professional ethics.
Chamber of Commerce members have to trade in a reputable manner.
Are they experienced in dealing with your business sector?
Ask for references. Better still, the contact details of previous clients.
When it comes to health and safety, don’t be complacent – be compliant.
For more information visit : www.risksafetysolutions.co.uk
About the Author
Paul McGurl BSc (Hons). Dip. Poll. Con., is Managing director of Risk and Safety Solutions Ltd. He has had “hands-on” experience in managing Health & Safety issues for over 25 years, most recently working with IFF, a large aroma chemical and flavours corporation, global market leaders in their field, where he held the post of Plant Manager and was a Corporate Safety Auditor. Paul is also a member of the International Institute of Risk and Safety Management, B.N.I., and Chambers of Commerce and Industry.
For further information you can contact Paul by phone on 07958 276052
Imagine the scene. You get to work and it’s full of people, buzzing with the sound of them all working diligently. Of course, on any normal day you would be pleased. The only problem is, this is not a normal day – an employee has had a serious accident that could prove fatal. The people working so hard are environmental officers, health and safety officers, the press and police officers. Suddenly, these officers are not only taking statements from those involved, they are seizing documents and asking you questions – under caution – the answers to which may implicate your company or yourself personally in the commission of a criminal offence. You realise that, if the employee dies, investigations may lead to a charge of corporate killing against the company, and manslaughter against yourself and other directors or senior managers.
Apart from the almost certain public flogging you could expect from the national press, there would also be the possibility of large fines, imprisonment and a criminal record for manslaughter. Not the best of conditions to help your business flourish. Pure fantasy? Maybe, or then again, maybe not.
In fact, these are only some of the consequences of the proposed government bill on corporate killing and manslaughter. It is widely believed that the corporate killing bill is likely to be included in the Queen’s Speech this autumn.
The consequences for every type of establishment in Britain, which provides employment, will be immense after the introduction of such a bill. The extension of previous law means that it will apply to all ‘employing organisations’, with the exception of government bodies. According to the original Home Office consultation document, this means any new law will encompass around 3.5 million businesses including non-corporate undertakings, partnerships, unincorporated charities and one to two person businesses. Holding companies that allow subsidiaries to allow risky practices may no longer be able to evade liability. They too could find themselves as defendants.
Current law requires identification of the ‘controlling mind’ of an organisation responsible for the death. Now all that will be required is to show that the corporations’ conduct was responsible and that it ‘fell far below what could reasonably be expected’. Individuals would continue to be prosecuted for manslaughter, in cases where ‘management failure’ caused the death, the firm itself could be convicted of the new offence, therefore removing the need to identify the ‘controlling mind’. The result will allow employers to be prosecuted and should make convictions substantially easier to secure.
What are the implications? There will be an almost mandatory requirement for businesses to conduct a thorough review of its health and safety provisions. If need be, install further precautionary measures before the implementation of any new act. Companies must develop a balanced approach to safety, know how to identify hazards, assess risk and reduce that risk to an acceptable level. Directors must keep up-to-date on safety issues ensuring that the systems in place are consistent and of the highest standards possible. Examination of management systems will help decide if a company’s standard has fallen below what could reasonably be expected. Therefore, it will become compulsory for those who want to ensure satisfactory management practices to regularly scrutinise its procedures.
The inevitability of the new offences should be a wake-up call to all undertakings and board members. It would be a timely and advisable – indeed a preventative measure – for businesses to begin assessing and amending safety management systems to ensure their conduct does not fall far below the level expected. This should also warn individuals, holding director or senior management positions, to take an active role in the implementation of new measures and not merely turn a blind eye, especially if they do not wish to face individual charges for manslaughter. There would be few things that could focus the mind like the prospect of ‘public shaming’, and the stigma attached, which would be inevitable following a conviction for the avoidable killing of a person.
“I didn’t realise…..” has never been a viable defence in law. If you do not have the resources “in-house” to cope, there is a wealth of sound advice, assistance, guidance and training available to you. But take care, there are plenty of charlatans too. Think, as you would when buying any other vital supply for your business. Likewise, cheapest isn’t always the best bargain. Here are some helpful suggestions :
Look for a provider belonging to a professionally recognised body. They will be bound by a code of professional ethics.
Chamber of Commerce members have to trade in a reputable manner.
Are they experienced in dealing with your business sector?
Ask for references. Better still, the contact details of previous clients.
When it comes to health and safety, don’t be complacent – be compliant.
For more information visit : www.risksafetysolutions.co.uk
About the Author
Paul McGurl BSc (Hons). Dip. Poll. Con., is Managing director of Risk and Safety Solutions Ltd. He has had “hands-on” experience in managing Health & Safety issues for over 25 years, most recently working with IFF, a large aroma chemical and flavours corporation, global market leaders in their field, where he held the post of Plant Manager and was a Corporate Safety Auditor. Paul is also a member of the International Institute of Risk and Safety Management, B.N.I., and Chambers of Commerce and Industry.
For further information you can contact Paul by phone on 07958 276052
Web Link: http://www.risksafetysolutions.co.uk
E-Mail Link: paul@risksafetysolutions.co.uk
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