Communication Workers Union

Culpable Homicide [Scotland] Bill

The Communication Workers Union response to the Consultation Document by Karen Gillon MSP

Compiled

By

Dave Joyce

CWU National Health, Safety & Environment Officer

CWU

150 The Broadway, Wimbledon, London SW19. 1RX. Tel: 0208-971-7200 Fax: 0208-971-7300

q THE COMMUNICATION WORKERS UNION

The Communication Workers Union is one of the UK’s largest Trade Unions representing 250,000 workers employed in the Royal Mail Group, British Telecom Group, Alliance & Leicester, Manpower and a large number of smaller Communications industry companies. The Union represents a wide range of occupations including for example Postal collection, processing, distribution and delivery workers, Telecommunications Engineers, Technicians, Motor Vehicle Engineers, Cleaners, Caterers, Drivers, Office and Clerical workers, Counter and Shop workers, Computer operators, Call Centre workers, Tele-workers, Security Guards, Electronics Engineers, Electricians, Plumbers and Enquiry Officers.

q INTRODUCTION

This is the CWU response to the consultation document on the ‘draft’ culpable homicide [Scotland] bill introduced by Karen Gillon MSP. We commend and are grateful to Karen Gillon MSP for drafting the legislation and providing us with the opportunity to outline our position and views.

The CWU has been advocating legislation on corporate manslaughter for many years. We submitted evidence to the Home Office in response to the consultation on the draft bill on corporate manslaughter as well as to the Northern Ireland Office and to the Corporate Homicide Scottish Expert Group in 2005. The CWU supported the Bills which were moved in the House of Commons by Andrew Dismore MP and Stephen Hepburn MP. We are therefore pleased to support the Bill from Karen Gillon MSP.

q BACKGROUND

Before I set out the CWU view on the draft Bill I think it would be helpful to put the issue into context.

Every year around 250 workers are killed directly as a result of injuries sustained at work. Every one of these deaths is avoidable and according to the Health and Safety Executive well over 80% are a direct result of management failures. In other words the vast majority of these deaths are down to management breaking health and safety laws.

Then there are the other, many thousands, of additional deaths through asbestos, work-related road accidents, long-term chemical exposure and just plain over-work. These are all equally avoidable.

All in all, work-related injuries and illnesses result in the death of over 10,000 people every year. It forces over 25,000 people to give up work every year and injures over a million people every year.

In many cases the death or injury is caused, not by some kind of unforeseeable event or accident, but by what is simply an illegal act or omission.

q CONVICTIONS, PENALTIES TO FIT THE CRIME AND JUSTICE

Despite the huge toll on workers’ lives and health every year there are around 1,000 convictions with an average fine of less than £10,000. That figure is low enough; however many companies were fined for several offences and the average fine for each breach of health and safety each year is around £4,000. In fact fines under the Health and Safety at Work Act are broadly comparable to those under the Environment Acts for offences such as fly tipping.

The safety data between April 2002 and March 2004 found that 620 people were killed and 60,177 people suffered major injuries at the workplace. Only 23 directors were convicted of health and safety offences; not one of these directors received a sentence of imprisonment. Not one single director was disqualified as a result

of these deaths and injuries. In Scotland in the same period 61 people were killed and 5,797 people suffered major injuries in workplace accidents. Only one director was convicted - the penalty imposed was a small fine.

We don’t believe that the answer to all crime is to lock people up but just a handful of jail sentences for the most serious health and safety criminal offences in 30 years shows there is something is not right.

For example compare the low number of convictions secured for health and safety offences against directors and managers and the failure to send any to jail for even the most serious offences involving fatalities with the following:

- A labourer who joked that he had a bomb in a bag while travelling on a train was jailed for eight months at Cardiff Crown Court.

- A Birmingham City Football supporter Michael Harper was jailed for four months for invading the football pitch.

- Graham Ellison got four months jail for disobeying a court order by refusing to tidy up his garden.

- The RSPCA has published their 2005 report on the UKs animal cruelty record which shows last year 28 people were jailed for animal cruelty. Plus 39 people were jailed for animal cruelty in 2004. Also last year the RSPCA secured 2,100 convictions.

- In 2006 Royal Mail were convicted of breaching the Health and Safety at Work act when a CWU member died from a fall from height 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.

- Around 1,500 Directors are disqualified in the UK every year for insolvency – none following convictions for serious health and safety offences in connection with major injury and death.

- In 2003 Argos and Littlewoods were fined a record £22.65 million by the OFT for fixing the price of toys and games together with Hasbro in breach of the Competition Act 1998. However ARGOS, were previously only fined £3,000 plus £8,502 costs when convicted of breaching product safety regulations which led to the death of a toddler Matthew Ianson.

None of the offences for regulatory breaches, insolvency, competition offences or animal cruelty actually involved any physical harm to any person yet the number of convictions secured and level of sentence and penalty paid are so much greater than an employer who knowingly sends someone into a dangerous work situation putting life and limb at peril.

Where a worker has died and the Health and Safety Executive or local authority have successfully prosecuted the employer for breaking health and safety laws, it is wrong for the employer to escape with a small fine. It suggests that allowing one of your workers to die is no more important than a parking fine or a shoplifting offence.

We are often accused of being vindictive and vengeful. Bereaved relatives do not fit that description. The overwhelming feeling is of sorrow and distress while the overwhelming desire is for justice and prevention of other avoidable deaths.

Following the truly horrific death of a relative, families find it hard to believe that employers could be so careless and uncaring as to deliberately place their loved ones in such danger and desperately want to believe that the management had done their level best to provide a safe working place and that it was just an unlucky set of

circumstances that had resulted in the death. Sadly too many families discover how cavalier and negligent the employers and managers attitudes had been.

Custodial sentences should be reserved solely for those people who are a physical danger to others. Unfortunately in too many cases that is exactly the problem with decision makers whose negligence causes death. They are a danger to others and should therefore be punished by losing their liberty. Obviously the organisation cannot be put in prison but the enforcing authorities should be empowered to ensure that the organisation has rectified all the shortcomings that led to the death and has in place a plan of action to prevent future death and injury.

Private citizens are not fined for manslaughter so there should be no difference in the sentencing for an individual for manslaughter at work or any other place – the result is the same – it’s the loss of life of someone’s son, daughter, brother, father, mother and the effect this has on the family left behind. The loss is total! Therefore why should a death at work be considered to be less of a crime and there be such a difference in sentencing?

Financial penalties are too easily shrugged off (although costs should be incurred by the organisation for an immediately enforceable action plan to address the identified problem). Moreover, fines contribute to the idea that a death can be “bought off” and that life is only worth a certain amount of money.

In fact you could draw the conclusion that if you were minded to murder someone in the UK then the best way to do it and get away with it would be to employ them !

q DIRECTORS AND SENIOR MANAGERS DUTIES

Turning to the issue of individual directors’ duties. The draft Bill reflects the view of the CWU which we very much support. The Scottish Parliament should remember that the government’s own 2000 consultation paper accepted that without punitive sanctions against company officers, there would be insufficient deterrent force to and corporate homicide proposals.

This “Karen Gillon bill” has tackled the issue of directors’ duties. Last year the Work and Pensions Select Committee Report into the work of the Health and Safety Executive asked the government to just do that. They have not yet done so although they have asked the Health and Safety Commission to consider the issue and that situation continues unaddressed. We also had, in the last Parliament Stephen Hepburn’s private member’s Bill which had wide support from trade unions that would have actually introduced a specific duty on directors.

A corporate homicide law which is unable to consider the role of the board of directors and is unable to hold to account the people responsible for its activities would be like prosecuting a company for fraud but not placing any sanctions on the directors who carried out the fraud !.When it comes to protecting money the government places responsibilities fairly and squarely on the board of directors, yet the only sanction for killing someone as a result of work related activity at present is an inadequate fine on the organisation and no decision maker faces a custodial sentence or even a fine.

Now the last thing that the CWU wants is to scapegoat middle managers or front-line employees. Nevertheless it is fundamental that criminal liability for management applies not only to the corporate body but also to its owners and directors. In other words these people are ultimately responsible for the management failure. Without a clear duty on directors, backed up with appropriate penalties, then I cannot really see that Home Office Bill will make any significant cultural change in the safety regimes of organisations at all whereas Karen Gillon’s bill can make a difference. We hope therefore that the Scottish Parliament will look at the issue of directors’ responsibility favourably as part of this Bill. We accept that there are different issues that need to be considered. After all directors’ duties go well beyond just liability if someone is killed, and need to cover all

health and safety offences not just those that result in a fatality, however the Scottish Parliament as Westminster does need to look at the issue of Directors’ duties as a matter of urgency.

q CROWN IMMUNITY

It is of great credit that the bill addresses the question of Crown Immunity and accepts that it should be covered. There is no logical, legal, or moral case for leaving Crown bodies exempt from prosecution where they have caused a death. A successful prosecution can be important for the relatives of the victim of a workplace fatality and that is no different if the worker was employed by a government agency or a local construction company. We believe that Crown immunity for prosecution should be removed. It is inconceivable that Crown employers including Scottish Ministers should be given immunity from prosecution when the purpose of this Bill is to ensure that any natural person or organisation, irrespective of size or status, whose actions lead to the death of an individual is accountable for their actions in a Court of Law.

q SUMMARY

CWU welcomed the Home Office proposals for the reform of the law of corporate manslaughter but are disappointed with how little is on offer. The Home Office bill only provides for the penalty of a fine. We feel that unless this was so large as to threaten the very existence of the company it would not act as a deterrent at all. The absence of any attempt to target the decision makers means the bill is seriously flawed where serious management failure led to a death.

On the other hand the ‘draft’ culpable homicide [Scotland] bill introduced by Karen Gillon MSP offers the opportunity for the Scottish Parliament to address the cloak of immunity which has time and again been thrown around directors. The bill will enable Scottish law to reach those managers who abuse the safety laws of this country. If not, work related deaths will not be prevented and justice will still be denied. The CWU supports the Corporate Homicide (Scotland) Bill, introduced as a private members’ bill by Karen Gillon MSP.

The draft Bill also addresses the current legal discrimination whereby under current law individuals in large organisations are highly unlikely to ever be charged or convicted of culpable homicide as opposed to those in small organisations.

Any reformed law should act as a good deterrent; it should protect workers and members of the public. The continual annual carnage as a result of work related activity and a series of major rail disasters is evidence enough that the present system is no deterrent. In particular any reform should deter employers from taking risks with other people’s health and safety. Life is precious and all reasonable steps should be taken to preserve it. Lives after all are irreplaceable.

The victim should be recognised as a person with a right to live. The negligent killing and injuring of workers and members of the public should be seen as a crime. The Government, Scottish Executive and the investigative agencies insist on calling such events “accidents” no matter how easily they could have been foreseen and prevented. They effectively decriminalise the act either because they do not see workers as people or because they fail to accept that a businessman or company executive in a suit can be a criminal unless he is caught embezzling money.

By adopting the “Karen Gillon bill” the Scottish Parliament will ensure that Westminster’s Corporate Manslaughter Bill will not result in many involuntary deaths in Scotland going unpunished, with the real perpetrators continuing to be able to hide behind the corporate veil while innocent people lose their lives. We believe that the Scottish Parliament should legislate on this issue to ensure that those who suffer the loss of loved ones receive justice.

CWU Response to Question in Section 4 of the Culpable Homicide [Scotland] Bill Consultation Paper:

Do you have any comment to make on the need for legislation of this type as detailed in this paper to ensure equality across companies in relation to culpable homicide?

The CWU believes that reform of the law of Culpable Homicide is necessary following the collapse of the charges brought by the Crown against Transco following the deaths of a family of four in Larkhall in December 1999.

Despite an unacceptable rate of involuntary deaths of workers and members of the public in Scotland not one company or individual director has been held to account following the involuntary deaths of others as result of that organisations operations.

Transco successfully appealed the decision of the Crown Office to prosecute the organisation for Culpable Homicide. The reason given by the Court of Appeal was that the prosecution had failed to identify the controlling mind or minds within the organisation who were acting on behalf of the company in committing the errors or omissions that led to the deaths.

This judgement clarified the situation relating to the prosecution of companies and made it clear that, as a result of the identification doctrine, it would be impossible to prosecute larger organisations that invariably have more complex structures and many layers of management.

While Transco was the first company to be charged with Culpable Homicide in Scotland this has not been the case in England and Wales where charges of manslaughter brought by the Crown Prosecution Service. The ensuing successful prosecutions have all been against directors of smaller companies.

This would tend to suggest that the law in Scotland (and that in England and Wales for that matter) as it stands discriminates against smaller businesses making it more likely for them to be charged with such a serious offence as Culpable Homicide.

The law should not be allowed to discriminate against any particular group of employers or individuals nor should it be seen to protecting others.

We are not aware of any other area of law where discrimination of this kind is tolerated.

It is therefore imperative that any new legislation brought forward in Scotland has to be seen to be fair and apply to all organisations irrespective of their size and complexity of their structures.

Families of those killed as a result of the reckless or negligent of other individuals or organisations deserve justice and there is a public expectation that those responsible should be accountable for their actions. The justice system in Scotland needs to be seen to be transparent and apply to the largest and smallest of organisations.

The justice system is currently failing those who suffer the most while those at fault are immune from prosecution. This situation has to be remedied and we believe the proposed legislation will deliver justice and plug the loopholes in the Transco judgement. This was the intention of the Justice Minister at the outset of this process and we do not believe this will happen if we only implement the Home Office proposals that will still leave many organisation immune form prosecution.

Do you have any comment to make on the proposals outline that suggest that there be two different statutory kinds of culpable homicide – culpable homicide by causing death recklessly and by gross negligence?

The CWU welcomes the proposals for two new statutory offences of “Culpable Homicide by causing death recklessly” and of “culpable homicide by gross negligence”.

In the case of the first new proposed offence we believe it would allow for prosecutions, mainly of individuals, if they should have been aware of the risk of their actions but carry on regardless resulting in the death or deaths of others.

We would have been concerned, had this been the only proposal put forward, as there are clearly difficulties in ensuring this offence applies to organisations. However, the proposals for the second offence involving gross negligence would close the loopholes identified in the Transco case and this is an essential element for the CWU and our affiliated organisations.

Do you have any comment on the definition of organisations and office holders in section 8 and 9 of the Bill?

The CWU welcomes the broad and fully inclusive definition of an organisation outlined in Section 8 of the Bill and particularly that it does not focus solely on incorporated bodies. As outlined in our response to question 1.1 we feel that this legislation needs to be seen to be transparent and not to discriminate against any particular group. In order for this to happen it has to apply to all employing bodies, including government departments, partnerships and other non incorporated bodies. We welcome the provision to amend this definition as necessary.

Similarly in relation to the definition of an office holder we feel that the definition laid out in Section 9 properly reflects the way decisions are taken within organisations and does not seek to restrict the liability to any particular level of management. The CWU would have concerns that any such restrictive definition could result in a continuance of the controlling mind principle in another form and therefore welcome the broad definition of an office holder contained in this section.

The primary intention of the Bill must be to correct the current legal loophole that allows large corporations to escape prosecution for manslaughter because of the difficulty in determining who the “directing mind” which followed from the failed prosecution of P & 0 following the Zeebrugge ferry disaster.

Do you have any comment to make on the provisions of the Bill applying to Ministers, civil servants and Crown bodies in the same way as they apply to natural persons and organisations, as set out in sections 12 and 13 of the Bill?

The CWU believes that Crown immunity for prosecution should be removed again mainly for the reason given in our response to question 1.1. It is inconceivable that Crown employers including Scottish Ministers should be given immunity from prosecution when the purpose of this Bill is to ensure that any natural person or organisation, irrespective of size or status, whose actions lead to the death of an individual is accountable for their actions in a Court of Law.

Do you have any comment to make on the way that causing death recklessly is defined in paragraph 3.5 of the proposal and detailed in section 2 of the Bill?

The CWU welcomes the definition of causing death recklessly as it covers, not only those that act deliberately and through this behaviour cause death, but also those who may not be aware of the risk and consequences of their actions but should have been.

This is based on the Draft Criminal Code for Scotland and is a model that the CWU feels clarifies the definition of reckless behaviour, through the use of an objective standard, ensuring that ignorance of potential risk to life is also punishable under the offence.

We also appreciate the difficulty of attributing liability for this offence to companies and recognise the importance of the additional offence that will close the loopholes in the current legislation.

Do you have any comment to make on the proposal that an organisation is made responsible for the actions of their employees for this offence (made vicariously liable) as proposed in Section 4 of the Bill?

The CWU is of the view that making organisations responsible for the actions of their officers and employees can only serve to ensure that organisations at board level and their directors or managers take personal responsibility for ensuring that organisations take the necessary precautions to meet their legal obligations to all individuals affected by their operations.

We accept the difficulties outlined in section 3.6 but do not believe that these concerns should prevent the inclusion of vicarious liability within the legislation.

It is clear that on some occasions the actions that led to a death may be as a result of the behaviour of a rogue manager rather than organisational failings. It may be that in such cases that it is not appropriate to attribute liability to the organisation. However, in other cases the lack of involvement or knowledge of their officer’s or employees actions may not be so clear cut and it would be for the legal process to decide on liability of the organisation.

The CWU believes it is important that organisations should be liable directly and personally for any failures in the way they are run that leads to the death of any person. We do not believe that the original purpose of giving organisations distinct personas was to allow them to evade justice. This offence in itself does not address the problem of direct liability of organisations although the CWU is aware that this concern is addressed in other parts of the proposed Bill.

Do you see any difficulties as to how aggregation as proposed in Section 4(2) of the Bill will work in practice?

The decision of the appeal Court in the Transco decision made it clear that the liability of different individuals over a period of time could not be aggregated and then attributed to the organisation.

We are of the view that the issues of aggregation needs to be addressed and the inclusion of section 4 (2) will ensure that the Courts consider the aggregation of the actions of different individuals within the company, and at different times, when considering whether the offence has been committed.

We realise that, in practice, the issue of attributing liability through aggregation may well lead to instances where individuals may have acted in different ways and for varying reasons. We believe that this eventually will be off set by the increased responsibility placed on organisations to ensure that their officers and employees are fully aware of what is expected of them.

A systemic failure should be regarded as criminal and therefore open to prosecution so that a wider view is taken of the organisation and its “track record” of competencies.” It is often the cumulative effect of multiple failings rather than a single obvious “hammer blow”.

Is it any less criminal to combine the effects of failing to do a risk assessment with understaffing, using otherwise safe equipment in an unsafe manner and providing no training, supervision or co-ordination than simply using one unsafe machine? Yet the latter is likely to result in prosecution but not the former.

So both the individual decision makers and the employing organisation should be investigated and prosecuted if the evidence indicates that this is warranted. The present system of requiring the identification of a “controlling mind” is too complicated and allows criminal employers to escape justice.

Do you have any comment to make on proposals set out in paragraph 3.7 to re-introduce culpable homicide by gross negligence into the law in Scotland?

The CWU is of the view that the re-introduction of this offence is imperative if it is to be possible to hold organisations directly liable for the offence of culpable homicide. It is appropriate that an organisation's culpability is based around the concept of management failure - which focuses on the way in which an organisation is managed and organised - rather than individual conduct. This is a more appropriate way of assessing whether an organisation has culpability or not. We therefore welcome the fact that there is no requirement to identify any individual connected with the organisation, make the organisation vicariously liable or prove any mental element to the crime.

Do you have any comment to make on how these proposals are defined in section 5 of the Bill?

By focusing on the wider management failings within the organisation it will hopefully make the prosecution of organisations more likely. It is important to emphasise here that no one is talking about prosecutions for the sake of it however we do need the threat of prosecutions if corporate responsibility on health and safety is to be improved. While we cannot bring back those who have died, we can help prevent the death toll being added to. At the same time it is important that the relatives of those killed as a result of corporate failings see that justice is done.

The CWU supports the concept of management failure of any organisation being used as the basis on which liability can be attributed to the organisation.

We do not have a problem with the proposals being based on the Draft Corporate Manslaughter Bill but welcome the inclusion of a number of additional elements that again clarifies what is expected of organisations and their officers namely;

1. A duty of care being placed on organisations to organise its activities in a manner that will not cause harm to workers and members of the public. We welcome that this duty of care is placed on the organisation other then “senior manager” or any other narrowly defined group of individuals.

2. The inclusion of a provision that allows the management failure to be viewed as the cause of death even although the immediate cause followed the failure by an individual. Trade unions believe that this will put an end to the corporate veil, a protection that has effectively rendered organisations immune from prosecution in Scotland following work related deaths

The CWU welcomes the draft Bill’s new offences which targets very serious failings in the strategic management of a company’s activities which result in death.

Do you see any difficulties with what is proposed to define what is meant by that offence where it is committed by a natural person in section 3 and by an organisation in section 5 of the Bill?

One potential difficulty could well be that the natural person may not be in full possession of the facts regarding potential actions or behaviours that could be classified as a breach of their individual duty of care. However, in workplaces we see this as the employer’s responsibility to ensure policies and procedures are in place, and training provided, to make individuals at every level aware of what is expected. If employers take this responsibility seriously or, indeed are forced to do so, the net result will be that everyone knows what is expected of them.

The CWU supports the straight forward definition of the offence as it relates to organisations and through this simplicity avoids the potential difficulties of continuing with any identification principle in whatever shape or form as we believe to be the danger in England and Wales.

Do you have any comment to make on the definitions of a duty of care and gross breach as proposed in section 6 and 7 of the Bill?

We support the broad definition of a duty of care and would be strongly against any restrictions being placed on the limit of an organisations breach of this duty of care.

We believe the definition of duty of care contained within the draft Bill will ensure that breaches of this duty will extend further than acts of negligence and could extend to other misdemeanours and transgressions.

We agree with the definition of gross breach in relation to the duty of care placed on individuals and organisations and welcome the fact that it applies equally to organisations and individuals.

At present you have to show that an individual director or senior manager of an organisation is liable. This requires evidence of “gross negligence” and without that there is no case against an organisation. This means that unless a senior manager can be found guilty of manslaughter a company can get away without facing any charges. The proposed new legislation will make it possible to prosecute an organisation and senior manager if there is a breach of their duty of care and that a senior manager of the organisation knew, or ought to have known, about this breach. We therefore welcome the new proposals of culpable homicide by causing death recklessly and of culpable homicide by gross negligence as mentioned elsewhere. This will allow for prosecutions where employers and managers should have been aware of the risk of their actions but carry on regardless resulting in the death or deaths of others.

Do you see any difficulties with the definitions of a duty of care and gross breach as proposed in sections 6 and 7 of the Bill?

The CWU do not envisage any difficulties in the definitions due to the non discriminatory nature of the definitions brought about by their simplicity.

Do you have any comment to make on the penalties detailed in section 11 of the Bill?

The CWU believes that those who are found to be criminally liable for the deaths of other individuals under the terms of the proposed Bill should be liable to the equivalent range of penalties, including terms of imprisonment as others convicted of involuntary killing elsewhere n our society.

Ideally, we would have preferred the sanctions on the organisations to be far wider reaching than unlimited fines but appreciate there are other opportunities to consider more innovative penalties that could potentially be imposed on organisations.