| Part
of Section 3 of the CCA Response to Home office Proposals
to Reform the law of Manslaughter
Directors and the new offence
of Corporate Killing
| 3.54 |
The Home Office has proposed
two possible legal reforms which - though not
concerning the new individual "manslaughter"
offences - would have a direct impact upon company
directors. This relates to the proposed offence
of "corporate killing" which is itself
discussed in section five below.. |
| 3.55 |
Option of Disqualification:
The Home Office is proposing that a director or
other company officer "who could be shown
to have had some influence on, or responsibility
for, the circumstances" which resulted in
a company being convicted for its proposed new
offence of corporate killing, "should be
subject to disqualification from acting in a management
role in any undertaking carrying on a business
or activity in Great Britain." It is proposed
that the "ground for disqualification would
not be that of causing death but of contributing"
to company's "management failure" which
resulted "in the death". It is suggested
that there would, in most cases be separate (presumably
civil) proceedings taken against the director,
once the company had been convicted of the offence. |
| 3.56 |
Under the Company Directors
Disqualification Act 1986, directors can now be
subject to a disqualification order if he has
been convicted of an "indictable offence"
concerned with the "promotion, formation,
management, or liquidation of a company".(i)
At present, therefore, a company director convicted
of either manslaughter or a health and safety
offence(ii) could be subject to disqualification.
What the Home Office is now proposing is that
the director could be disqualified even when he
has not been convicted of any offence - though
there would have to be evidence, that satisfied
the civil law burden of proof, that the conduct
of the company director "contributed"
to the "management failure" committed
by the company. |
| 3.57 |
A new Offence?:
The Home Office document also contains a suggestion
- upon "which the government has reached
no firm view" - that there should be an
additional criminal offence which would allow
the prosecution of a director who "substantially"
contributed to the offence committed by the
company. Such an offence would, in effect, be
intermediate between:
- a regulatory offence
- where it is necessary to prove that a health
and safety offence committed by the company
is the result of "neglect, consent or
connivance" on the part of a director
or manager(iii) ; and
- one of the individual
new homicide offences
|
| 3.58 |
It is not entirely clear
whether the Home Office is suggesting that the
second option of a new offence would displace
its disqualification proposal, or whether it
is proposing one of the two options below:
- that the same evidence
about the conduct of a director could be used
either as a foundation for prosecution
or/and as the basis for disqualification
proceedings; or
- that there would be
a clear distinction between the levels of
evidence required for disqualification on
the one hand and prosecution on the other.
For example, is it being suggested that disqualification
could take place simply on the basis that
the director "had some influence on or
responsibility for" the company's management
failure, but that prosecution could only take
place if there was evidence of a higher level
of contribution (i.e. a "substantial"
or "significant" contribution).
|
| 3.59 |
The Centre's Views:
In our view, for reasons set out in paragraphs
3.4 to 3.19 above, that it is crucial to focus
on the conduct of company directors - since it
is they who control companies. Even if the Government
imposed safety duties upon directors, permitting
prosecutions against them when they have caused
death through reckless or grossly careless omissions,
the number of prosecutions is unlikely to be very
high. The most serious culpable conduct would
be required of directors before they could be
prosecuted. Safety duties and manslaughter prosecutions
would therefore only effect the most culpable
company directors. |
| 3.60 |
It is therefore important
that sanctions are available against company
directors who are "culpable" - in
that their conduct has directly resulted in
the safety failure of their company - but not
culpable enough to allow for a homicide prosecution.
We support the view set out in the Home Office
document that:
"the public interest
in encouraging officers or undertakings to
take health and safety seriously is so strong
that officers should face criminal sanctions
in circumstances where, although the undertaking
has committed the corporate offence, it is
not (for whatever reason) possible to secure
a convictions against them for either of the
individual [homicide] offences."
It is crucial that company
directors and others at the top of a company
are appropriately deterred from putting the
lives of people at unnecessary risk. It is always
going to be difficult - because of the nature
of seriousness of the offence - to prosecute
individual managers and directors for homicide
offences, and it is therefore important that
conduct, that does not merit prosecution for
the individual homicide offences, but is still
seriously culpable, can result in a prosecution
for an offence with proper stigma and penalties
attached.
|
| 3.61 |
It is not enough in our
view for such a person to be subject to civil
proceedings for disqualification. Apart from
anything else, this could otherwise have rather
bizarre results. It could mean that where a
director's "consent, connivance or neglect"
has resulted in his company "failing to
comply with a duty", the director could
be prosecuted under the HASAW Act 1974 (and
indeed be subject to imprisonment if the Government
amends the act as it says that it intends to(iv)
), but where he contributes to his company causing
the death of a person through gross carelessness,
he will only be disqualified.
In our view, a company
director should be able to be prosecuted if
he has "significantly"(v) contributed
to his company's "management failure".
Disqualification in civil proceedings is not
enough.
|
| 3.62 |
What about the Home Office's
disqualification proposal? In addition,
to the new criminal offence, should a company
director be able to be disqualified even though
he has not committed any offence? On balance,
we think that this option should also be available.
It should be noted that this option would only
be available in a limited set of circumstances:
where (a) a death has taken place; (b) it is the
result of gross carelessness on the part of the
company's management and (c) that the director
had some responsibility for the management failure.
No disqualification could take place without a
death and a corporate conviction for a homicide
offence. However it would be important, to avoid
confusion with the criminal offence, for this
sanction to be available at a lower standard of
proof than the criminal offence. Proof of "significant
contribution" should not be necessary. |
(i)Health and safety
offences are "indictable" offences and involve
the "management" of a company. Therefore the
HSE can at present seek a disqualification order against
a director, if he has been convicted of an offence under
section 37 of the Act.
(ii)Under section 37 of the Health and Safety at Work
Act, for example
(iii)section 37 of the HASAW Act 1974
(iv)See DETR, "Revitalising Health and Safety:
A Strategy Statement"
(v)It is our view that the wording of the offence should
be clear and not contain the words of "neglect,
consent or connivance".
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