UNISON Scotland's response to the Justice Department Expert Group on Corporate Homicide

June 2005

Introduction

UNISON is Scotland's largest trade union representing over 150,000 members working primarily in the public sector but also in some of Scotland's largest private sector areas included energy. UNISON has long advocated that there should be a criminal offence covering corporate homicide. We therefore welcome the opportunity to comment on the issues raised by the Expert Group as set out in the Justice Department letter dated 6 June 2005.

Our response to the specific questions raised is set out below.

Responses

• Do you agree that the law in Scotland needs to be changed to enable prosecutions of organisations for culpable homicide?

Yes. It is clear from recent cases that the current legal provisions are ineffective. Strong and effective legislation will send a clear message to organisations, shareholders and senior directors about the importance of safe working practices and their accountability where death or serious injury occurs.

• What is your preferred option for change and why?

UNISON Scotland supports a specific offence of corporate culpable homicide with a secondary offence for Directors for the reasons set out above. The level of workplace deaths in Scotland is simply not acceptable and legislation has to have real teeth if it is to be effective.

There are two main areas in which the Home Office proposals are unacceptable. They are in relation to:

The need for the wrongful act to be committed by Senior Management will undermine the legislation. It would allow corporations to pass the buck and to avoid responsibility.

There are other ways in which this could be approached. In America, they have a system of "vicarious responsibility" where the company is responsible and guilty for Corporate Manslaughter. Where the conduct of any of its employees causes death of another unless the company can establish a statutory defence to show that they had taken all steps to properly train etc. that employee (known as Due Diligence).

Whilst we have no direct experience of this approach we believe it should be explored in more detail. Our experience of many US health and safety systems, particularly in the energy industry, would indicate that this approach leads to management taking health and safety seriously.

Of equal importance is the need for the Scottish legislation to provide for a secondary offence in relation to individual Directors. Again the common law speaks for itself insofar as the lack of successful prosecutions against individual Directors for Culpable Homicide/Manslaughter shows that the law is lacking. Accordingly an entirely new offence is required.

In our view the English Legislation falls short in two other respects:

As a matter of principal the legislation should apply to every type of commercial organisation and is clearly another gap in the legislation. We accept that offences outwith the United Kingdom is a developing area of jurisprudence but we believe in an increasingly global industrial climate that this loophole should be closed.

• Should there be a secondary offence and if so what should it be?

There should be a secondary offence to cover individual Directors/Senior Managers. The common law is clearly insufficient and we require a new offence. The main problem with the common law is in relation to causation. An individual Director's conduct can be seen from a common sense viewpoint to have made a material contribution to a worker's death but may not be sufficiently linked to it in terms of common law causation to result in that Director being successfully prosecuted for Culpable Homicide. The solution is for there to be a secondary offence where an individual's conduct materially contributes to the death. In the most extreme examples prosecution for Culpable Homicide is still possible. This is analogous with the situation where an individual can be prosecuted for Culpable Homicide in relation to driving a car but, more often than not, is prosecuted under the separate statutory offence of causing death by dangerous driving.

• Should individual Directors be subject to a new offence and how would this vary from existing homicide legislation in relation to individuals?

This question has been answered under the previous heading and the limitations of the current common law provisions are also discussed above.

• Is the term "Senior Management" too restrictive? Do you have alternative suggestions?

As set our above this phrase is too restrictive. There is a real concern that companies would use it as an escape route to organise their companies in a way to ensure that the "Senior Managers" can never be considered to be the direct cause of a death. In addition when a company is being prosecuted efforts will no doubt be made to identify a middle manager who will acknowledge fault but the company will avoid prosecution because that individual cannot be considered a "Senior Manager."

Health and safety is often treated as a buck passing exercise - both ways. We would also be concerned that some managers would be pressured not to highlight concerns to senior management in an effort to avoid prosecution at higher levels. For example when maintenance budgets are cut to increase profits.

For alternative suggestions the Australian/Canadian model is one as is the American vicarious responsibility model and the expert group may wish to consider these models. We are having further discussions with our sister unions in these jurisdictions and will pass on any experience.

• Should any new offence apply to the Crown?

Yes. The days of the Crown avoiding its health and safety responsibilities should have long gone.

 

• Should any reform extend to serious injury falling short of death?

Yes. The difference in any one incident between death and serious injury can be highly marginal.

• What penalties would you consider to be appropriate

we agreed that the following penalties should all be included within the legislation?

There should be a range of penalties available to the courts including; public shaming, corporate probation, confiscation of assets and Prohibition of Corporation from certain business activities.

In addition possibly the most effective measures might be:

We have considered Dissolution (corporate equivalent of the death penalty). However, we would be concerned about the effect this would have upon innocent employees. In addition companies would no doubt simply set out again under the same management but under a slightly different name a short time after dissolution.

• Do you foresee significant additional costs with the new offence?

We cannot identify any additional costs which the offence itself should create. Provided companies are already complying with their existing duties under the Health & Safety legislation they should not need to do anything else. If they do need to take any additional action to make their workplaces safer then they ought to have already been doing so under the existing law.

• Do you consider that organisations and enforcers may become risk averse as a result of this legislation?

The corporate identity was established to protect and encourage would-be entrepreneurs taking financial risks. However, the creation of a separate corporate identity never has and never can be used to encourage organisations to take risks with peoples health and safety.

• Are you aware of any aspects of legal reform in Australia and Canada in respect of corporate homicide that you would consider to be appropriate for Scotland?

One key difference is the provision of specialist prosecutors charged with enforcement of the criminal law as it relates to companies and similar institutions. Prosecutions of any type for matters related to health and safety are remarkably rare in Scotland given our poor record on safety and workplace death. If legislation on corporate homicide is to be used effectively there must be a review of the need for a small dedicated resources within the prosecution service to ensure effective enforcement of the criminal law across the legal spectrum.

However, we have a limited understanding of the legislation in Australia/Canada and it would appear to present a better model than the one offered by the Home Office. However, as set out above we are having discussions with our sister unions and we agree the expert group should consider these models.

 

Conclusion

UNISON Scotland supports the provision of a new offence covering corporate homicide. However, to be effective it has to have real teeth and we do not believe the model being considered in England and Wales meets that test.