Getting away with murder... but for how much longer?
The recent announcement by the Crown Prosecution Service in England that rail bosses would not face criminal charges over the Potters Bar train disaster has once again raised concerns that we live in a world where corporations are quite literally "getting away with murder".
Indeed statistics show that since 1992 there have been 34 prosecutions for work-related manslaughter but only six organisations have been convicted. Six small organisations.
However, as early as next year a new corporate manslaughter law could be introduced in England which would allow charges to be brought against corporate giants responsible for accidents like Potters Bar. But will the "Kill Bill" meet the high expectations of those who want to see senior staff at such organisations take clear responsibility for the consequences of their actions?
At present in order for a company to be charged with manslaughter an individual who is in charge of the company's procedures, "the controlling mind", needs to be identified. There then must be evidence to establish the guilt of this individual and that they have committed gross negligence, which has led to death. Disasters such as the Herald of Free Enterprise tragedy in March 1987 in which 187 people died; the Southall rail crash in September 1997 where seven died; and the Larkhall gas explosion in 1997 where four people died, show that the current legislation is inadequate when it comes to prosecuting big corporations.
In all these cases charges were raised against officers of the firm but were dropped because "the controlling mind" behind the negligence could not be identified.
It is possible to use the current law to convict companies of breaking health and safety laws. For example, Transco were fined £15 million in August over the explosion that killed four members of a family in Larkhall. Balfour Beatty and Network Rail received a total fine of £13.5m in relation to the Hatfield rail disaster five years ago. However, in relation to both of these disasters no-one in the company was actually held responsible. This has led to criticism that those guilty for carrying these accidents are not being held accountable. And this in turn has led to the Government introducing the draft Corporate Manslaughter Bill - a Bill which sets out the proposals for a new specific crime of corporate liability for manslaughter.
This creates a new offence, which is based on the failures in the way an organisation's activities are managed or organised rather than trying to find a "controlling" individual. This is referred to as management failure and is the responsibility of senior managers. The intention of the Bill is therefore to pin the management failings of an organisation collectively on to its senior managers rather than individually.
If companies are found guilty of an offence under this Bill they will be liable to an unlimited fine if prosecuted as well as subject to orders to remedy breaches of health and safety legislation.
However, if the Bill becomes law it will only apply in England and Wales, and to the actions of firms that take place there. So, if an accident takes place in Scotland, even by an English company, it may be possible to have them prosecuted in England if the accident resulted in a breach of English law.
Moreover, if the Bill is enacted in England it is unlikely that the Scottish Executive would be able to resist the public clamour to have a similar Act in Scotland.
Indeed the Scottish Executive has already set up a working group to monitor the Bills programme. This group has recently provided its interim report which recommends making corporate killing a specific offence and could give Scotland the toughest corporate killing laws in the UK. However, even if this Bill does come to Scotland in its present form, it does not make individuals accountable and will only result in the firm being fined. It is unlikely that this will be enough to satisfy the public appetite to have someone held accountable if another disaster strikes.