Posted By Raymond Rapp No David to the best of my knowledge you have not missed anything. Furthermore, I agree with your sentiments. As you have rightly pointed out the Corporate Killing law is nothing but a 'white elephant' and considering it was designed to replace an equally ineffective Corporate Manslaughter law it is a bit of a joke. Ray

Posted By Lawrence Waterman There are a number of reasons why the new proposed law is appropriate, but the first is undoubtedly to do with fairness. Under current legislation and common law, there is the potential to find a Director (or any other agent) guilty of manslaughter if it is possible to show a link between their action or inaction and the death. For the owner/director of a small firm, this controlling mind argument can lead to a conviction of the individual and the company, because the relationship between what the director thinks and wants to happen is usually translated into action in a fairly clear manner. In large corporate bodies, with several layers of management between boardroom and shop floor, there are too many mediations between decision and action. The failure to secure a conviction at a high level within the operators of the Herald of Free Enterprise, after its capsize caused the deaths of 189 people, compares with the successful prosecution and imprisonment of the managing director of the activity centre at Lyme Bay following the deaths of four teenagers. So large companies effectively cannot be found guilty of an offence which can apply to small businesses - that's unfair. The second argument is one of seriousness of outcome. There are laws in place which distinguish between offences not through evaluating causes and motivations but outcomes - and there is little doubt that if falling below reasonable standards results in someone's death most people would regard this as more serious than if it caused a near miss. In H&S law, the offence would be the breach of standards, while manslaughter recognises that extra opprobrium should be heaped on the guilty party if someone was killed as a result. Because of this, the stigma of manslaughter, and the impact that this would have on the organisations - very few court cases in any period - would be far greater than any size of fine under H&S law. Finally, although the argument is more detailed than this, and I have asked for our evidence to the DWP Select Committee to be posted on the website, it is worth remembering that IOSH is not solely supporting a change in the law as proposed. It is true that many Directors are renewing their interest in H&S because of the debate, that taking H&S seriously in this area is a counter to the "H&S is stupid, a barrier to business and a constraint on freedom" arguments that form part of the bonkers conkers coverage etc etc. But we are also arguing for clearer guidance to Directors, perhaps converting the current short guide into an ACoP; we hosted the conference last week at which the new Noise Regs guidance was launched; we are on the management board for the Worker Safety Adviser initiative; we are developing proposals for more innovative penalties than fines, etc. etc. But the arguments for revision of the existing corporate killing law which has grown up through common law are compelling, so this forms a very small part of what we are speaking out on. Our priority remains competence - and getting everyone, including HSE, to publicly and clearly recognise the value to organisations of every type from having access to competent health and safety advice.

Posted By Robert K Lewis It is good to see both Lawrence and Richard engaging in the debate and I actually have no ultimate problem with Manslaughter verdicts as appropriate but the issue is that the proposal is not personal but corporate and in the end will the opprobium actually change anything? Will the government countenance the whole Network Rail board being disqualified in one hit because of a gross failure in management? I rather think the pulic good argument will be brought forward to prevent this even if it is probably the right and just punishment. Directors must carry the full burden of responsibility if their grossly negligent acts cause the deaths of others whether empployed or not. For me the question is in the end - Will the new laws put these recalcitrant directors behind bars? The answer is no, only section 37 holds this possibility at this moment, and will do so after the event. I for one would be happy to see the charge sheet read a) Breach of section 2,3 or 6 b)Breach of section 37 c) Corporate Manslaughter d) Individual gross negligence manslaughter and for these to be put to the jury. The problem at the end of the day is that the news media have created a view that H&S breaches are not serious criminal offences. That they are somehow merely related to a speeding ticket for a 35 mph in a 30mph zone infringement. IOSH undoubtedly has a role in lobbying for better enforcement and doubtless the addition of this form of CM charge may make some directors more careful about the company reputation but we do need to lobby strongly to get the legislation we currently have better enforced such that victims are able to perceive that justice was done. Bob

Posted By Adrian Watson Dear All, I also think that the proposed corporate manslaughter law is a red herring. If this law gets through parliament, then it is unlikely to have any effect. What we will get is a watered down offence of reckless killing. As you cannot put a company in jail and cannot shame a brass plaque, the company will pay the fine and life will go on! Until and unless individual directors are convicted, where they are culpable, then nothing will change. So why not use the existing law? It is currently possible to convict an individual director of a large company where it can be proven beyond reasonable doubt that they have committed manslaughter. However, the reason these prosecutions are not sought is because it is difficult to collect sufficient evidence to obtain a conviction. However, there is still S37 of the HSWA 1974. This should be used against directors as a matter of course where there is sufficient evidence for a realistic chance of conviction. I have no doubts that this would produce results, especially if convicted directors are disqualified from their directorships! Regards Adrian Watson

Posted By Robert K Lewis Apparently the CCA and the HSE see it as unclear! Bob

Posted By Ian Waldram I'm surprised no one has mentioned the useful conferences on this issue held by HSE in recent weeks - useful because they include new research as well as the older stuff. All the documents are available on their website - see the 'What's New' item for w/c 26/9. There's a slight problem because some of the work isn't quite finished, but even so at the event in Edinburgh all the speakers agreed there is a pretty strong evidence-based case for having better guidance for Directors, and most wanted an ACoP. The new IOSH book "Questioning performance" seems well-timed, and I look forward to reading it when it's published soon - do members who regularly deal with directors have it on order pre-publication, it might make a suitable Christmas gift for your Board?

Posted By Eric Burt There is an excellent book available on this topic written by David Bergman for Disaster Action called "The Case for Corporate Responsibility - Corporate Violence and the Criminal Justice System" It is available directly from Disaster Action, Holborn Studios, 49 - 50 Eagle Wharf Road, London N1 7ED. I think it is about £15.00 The ISBN number is 0 9538331 0 0 The author examines the law in great detail and looks at a number of disasters and the ensuing enforcement action. It is well written, easy to read and has useful references for further reading material.