UNISON Scotland's response to the Justice Department
Expert Group on Corporate Homicide
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.
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.
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 use of the term "Senior Management"
- The lack of a secondary offence for Directors
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:
- Lack of accountability for Partnerships/Sole Traders and
- Lack of provision for offences committed out with the UK
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.
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.
This question has been answered under the previous
heading and the limitations of the current common law provisions
are also discussed above.
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.
Yes. The days of the Crown avoiding its health and
safety responsibilities should have long gone.
Yes. The difference in any one incident between
death and serious injury can be highly marginal.
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
In addition possibly the most effective measures
- Equity fines - hitting the company where it really hurts
- in the pockets of its shareholders
- Fines being assessed on a percentage of a company's profit/turnover
- this will ensure that fines are proportionate and that companies
will not go to the wall to the cost of employment.
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.
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.
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.
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.
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.