Following the conclusion of the Hatfield trial the question now on everyone’s lips is whether this case will be the straw that breaks the government’s inertia in getting a new corporate manslaughter law onto the statute books. A draft bill was published in March of this year for consultation concluding in June.
Nevertheless, however tempting it is to seek to draw conclusions from the result of a case in which manslaughter charges and corporate manslaughter charges in particular have, once again, failed to stick, this was, in truth, an over-charged, over-ambitious prosecution. Manslaughter charges should never have been brought against these companies or individuals. It was, as one defence Counsel told the jury, an "overblown and over-hyped case without real substance." As the Judge said in his dismissal judgment, the conduct of these individuals did not reach the threshold of gross negligence. Moreover, the jury, having heard over 70 days of evidence and having considered their verdicts for 15 hours, found no breach of duty on the human defendants’ part at all. They convicted Network Rail of breaching health and safety, Balfour Beatty having already pleaded guilty to this charge earlier in the trial.
Of course, it is understandable that yet another failure in the corporate accountability arena should lead to renewed calls for reform. The Judge himself referred to the vexed question of reform in his ruling on dismissal of the manslaughter charges, when he said, "This case continues to underline the pressing need for the long-delayed reform of the law in this area of unlawful killing."
But it does not follow that because this prosecution failed, the current law failed to deliver justice. That is a tempting conclusion but it should be resisted. In our view, this prosecution would have failed whether or not a reformed law of corporate manslaughter had been introduced.
One of the fundamental difficulties with the current law of corporate manslaughter is the requirement that before a company can be convicted of manslaughter an individual who can be said to be a ‘directing mind’ or the ‘embodiment’ of the company must first be convicted. The main difficulty is proving that such a senior director or manager is also personally responsible for a grossly negligent act or omission, which results in death. Under the current law it is inevitably the case that the larger a company, the more complex the management structure and the more difficult it is to identify a ‘directing mind’. Of the 34 manslaughter prosecutions for causing deaths in the workplace brought since 1992, only six small companies have been convicted. A major corporate defendant is yet to be convicted. The failure of high profile cases, such as the Great Western Trains, P&O Ferries cases and now Hatfield, has led to widespread public concern that the law is unable to hold large organisations to account and that justice is not being done.
The new offence creates a legal framework where a company’s failures can be more easily attributed to the way those at the top of the organisation organise and manage its activities. Under the proposed law, for an organisation to be convicted of the offence of corporate manslaughter "senior managers" must be identified who have organised or managed a company’s activities in such a way as to have caused a person’s death and in a way that amounts to a gross breach of their duty of care towards the deceased. According to the consultation document, this principle of identifying the senior manager is intended to better reflect the complexities of decision taking and management within modern large organisations. However, the definition of senior manager is not without its own problems – for instance there is the requirement that a senior manager’s role must extend to the whole or a substantial part of the organisation.
We do not believe that the proposed law would have made any difference at all in the Hatfield case. That is because, as one of the defence Counsel put it, the context of this prosecution was of five professional men working in an under-funded, under-invested railway system, neglected by governments of all parties for over 40 years, which had undergone a botched and unworkable privatisation; it was a railway system which the defendants had tried to make work for the benefit of the travelling public against overwhelming odds. He went on to say that it was a sad reflection on political correctness and the blame culture of modern day Britain that five men at modest job levels were blamed for Hatfield, whilst the concerned and grieving relatives and the press and the public were spun the line that the buck stopped with them. We agree. A reformed law would have changed nothing as far as this case was concerned. It is essential not to look for convenient scapegoats but to make a reasoned, careful and impartial analysis of the genuine underlying causes of any tragedy such as this.
The law should not be reformed because of Hatfield. The Hatfield verdicts were correct. Of course Hatfield was a tragedy. But a change in the law would not have changed the result in this case. The public should not be seduced into thinking it would do. The causes of this tragedy were far more complex.
Judith Seddon and Rod Fletcher
Partners at Russell Jones and Walker who represented one of the defendants in the Hatfield trial.
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