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Point of law - The buck stops where? by Stephen Cirell and John Bennett

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15 April 2005

Calls for a corporate manslaughter Act have intensified over the years after a series of man-made disasters. Now a draft Bill has been published that could make it much easier to prosecute public sector organisations

In late March, the government published a draft Bill for reform of the law on corporate manslaughter. The impending election and the dissolution of Parliament means the Bill has not yet reached the starting blocks. However, if the current government is returned, it will certainly reappear, with the final consultation having been completed and a clear path ahead.

The risk of public bodies being charged with the present criminal offence of corporate manslaughter has been highlighted by the recent case brought against Barrow-in-Furness Borough Council. This is the first case against a local authority for this serious criminal offence, and the final ruling is awaited as the trial continues in relation to other matters. But the judge has already directed that the council itself should be acquitted of the principal charge.

The prosecution case against Barrow as an organisation was understood to be based on the council's design services manager being the 'controlling mind' of the authority, and therefore creating a situation where the council itself was implicated by her alleged actions.

The case against her is not concluded and she continues to deny any personal liability. The facts of the case relate to an outbreak of legionnaires' disease allegedly caused by inadequate cleaning of the air conditioning at the authority's arts centre, resulting in seven deaths.

The current law of corporate manslaughter has existed for many years and has been marked by a failure to secure any conviction against a corporate entity in any of the large and well-known cases (such as the Zeebrugge ferry, Marchioness riverboat and Paddington rail disasters).

The public clamour for organisations to be responsible for fatalities and so to atone for their actions is such that the government has long been committed to a change in the law.

In 1996, a royal commission recommended that a new statutory offence of 'corporate killing' should be introduced. It concluded that the lack of convictions was due in part to the difficult burden of proof required, namely that there must be an individual so closely identified with the making of key decisions that led to the fatality (the so-called 'controlling mind') as to implicate the organisation as a whole.

The royal commission therefore recommended a change in the law by the introduction of a new offence with a different test — one of 'serious management failure'.

The new Bill has, instead, proposed to reform the law by replacing the current legislation with a new offence of corporate manslaughter. If it is enacted, while there will still be the need to prove that the death has resulted from a very high degree of negligence — a proposed test of 'grossly failing to take reasonable care' — the link to the 'controlling mind' concept will be broken. Instead, the organisation would itself be responsible where the 'gross failing' is that of an organisation's 'senior management'.

This means that the Bill recognises the new devolved structures that exist in most corporations and public authorities, where significant decisions are made without recourse to the whole organisation.

It seems certain that cases will continue to flow. If the new Bill is enacted in the current form, convictions should be easier to come by. It was reported recently that the Health and Safety Executive reviewed 52 cases prosecuted under the Health & Safety at Work etc Act 1974 between 1996 and 1998, and applied the royal commission's proposed test for corporate killing. It concluded that a significant 21 of the cases that were brought under that Act would have been prosecuted under the more serious offence had the law been available at the time.

When looking at the risk for local authorities, the smart money is on the highways function. Last year, it was reported that the prosecuting authorities were looking into a handful of cases where deaths had occurred on dangerous stretches of road, basing the investigations on whether the relevant highway authorities were criminally responsible for manslaughter.

This means that the prosecution and subsequent acquittal of Barrow is unlikely to be the end of cases against public sector organisations.

The lesson for local authorities and other public bodies is to assume that the risk of similar cases will continue and to put in place a diligent process of risk management and to be aware of the importance of this issue within the corporate agenda.

Stephen Cirell is head of local government and Professor John Bennett is a consultant solicitor with Eversheds. They are authors of Best Value Law and Practice and Charging and Trading in Local Government

PFapr2005

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