When the Herald of Free Enterprise sank off the port of Zeebrugge in March 1987, killing192 people, eight months passed before the police initiated a criminal investigation into the conduct of the owners of the vessel, P&O European Ferries. Indeed, there would have been no criminal inquiries at all had an inquest jury not returned a verdict of unlawful killing.
Again, when the Marchioness sank in the Thames in August 1989, killing 51 people, the police took a gentle approach to the owners of the dredger Bowbelle, with which the Marchioness collided. The initial request for records of safety meetings went unanswered for three months. Yet powers of search and seizure were never used. One of the senior police officers in the investigation said that the Director of Public Prosecutions decided to “do it in a more gentlemanly way; he felt they were dealing with honourable people”.
So we should probably be thankful that, a decade on, the police immediately treated the location of the Paddington train crash as a “crime scene” and established a criminal incident room at nearby Hammersmith police station with 40 officers. According to British Transport Police, the railway companies have provided all the documents and papers requested. Which is probably wise of them, since the police say they are willing to get court orders if the companies don’t co-operate.
There the good news ends. In other respects, the position on corporate accountability isn’t much different from what it was in 1987. The train companies and their directors will probably escape prosecution for corporate manslaughter because two legal loopholes, clearly identified at the time of the Zeebrugge disaster, remain in place to this day.
First, the law does not impose safety duties on directors as individuals. This laxness over safety is in sharp contrast to the rigorous financial obligations imposed upon directors which, if breached, can result in up to seven years imprisonment. The inquiry into the Zeebrugge disaster stated that the board of directors did not “appreciate their responsibility for the safe management of the ships. The directors did not have any comprehension of what their duties were.” In opposition, Labour recognised the problem. Michael Meacher, now the Environment Minister, told parliament when he was shadowing the position in March 1996: “I emphasise that responsibility for health and safety must be vested at the highest level of each organisation. Companies should appoint an individual at board level with overall responsibility for health and safety.” In power, Labour seems to have dropped this commitment.
The second legal defect relates to the offence of corporate manslaughter. P&O European Ferries escaped conviction for manslaughter over Zeebrugge principally as a result of the archaic legal test required to prove that a company is guilty of such an offence. Under the test, the court has to decide, not whether a company as a whole was grossly negligent, but whether a “guiding mind and will” of the company – in effect, a director or senior manager – was guilty as an individual. In the absence of anybody having responsibility for safety, such guilt is difficult to prove.
In 1996, the Law Commission proposed a reform to put this loophole right – the courts would be able to judge a company’s management systems – and in October 1997, Jack Straw, the Home Secretary, told the Labour Party conference that he would act. Two years later, we don’t even have a consultation document.
But something even bigger is required if safety is ever to be taken seriously in British boardrooms: a change in the way that the Health and Safety Executive (HSE) acts. You don’t have to be a cynic to recognise that, without proper policing, companies have little incentive to put safety before profits.
Disasters are rare. But each year the HSE gets reports on more than 20,000 major injuries and 250 deaths – and it’s how it deals with those that largely determines how companies such as Railtrack treat safety. Each amputation, blinding or serious burn reported to the HSE could be the result of criminal recklessness or negligence on the part of a company or one of its senior officers. If investigated, this conduct may justify proceedings under health and safety legislation, or, if recklessness is suspected, a prosecution for a GBH offence.
Yet the HSE only sends inspectors to investigate in 11 per cent of these cases. In 89 per cent of major injuries, the conduct of company directors remains totally unscrutinised, giving the boardroom automatic immunity from criminal justice. It is because directors know that they are unlikely to receive a knock on the door, however culpable they may have been, that safety can so easily slip to the bottom of their priorities.
The official lassitude extends to the railways. The railway inspectorate, a branch of the HSE, admits in its annual report that its “modest aim” of investigating “20 per cent of train accidents” is “not likely to be achieved”. In contrast most police forces arrive at the scene of a road traffic injury within 20 minutes of it being reported.
While all sudden workplace deaths are investigated, the prosecution rate – and this is just for health and safety offences, not manslaughter – is below 20 per cent. For major injuries, it is only 10 per cent. In the past two years no individual manager or director has been prosecuted in relation to any major injury or death. Yet the HSE’s reports suggest that 70 per cent of deaths are the result of “management failures”.
This high level of corporate immunity is partly due to inadequate resources. The government does not give the HSE anywhere near enough money. The railway inspectorate, for example, has only 35 inspectors. The HSE’s total budget of £180 million is less than one-third of that of the Environment Agency. Yet is it hammering on ministerial doors demanding more, as the police constantly do? It is not, being apparently quite happy with its present number of inspectors and its present levels of investigation and prosecution.
The HSE, rather than trying to hunt down corporate law-breaking, prefers to “negotiate compliance” with companies. Advice and guidance, it argues, should get a higher priority than the rigorous enforcement of health and safety law. Prosecution should, it states, be used only as a “last resort”.
This propensity for dialogue rather than action is nowhere better illustrated than on the railways. Immediately after the disaster, the HSE announced to much fanfare that it had imposed a prohibition notice at the Ladbroke Grove site of the crash, which was hardly necessary since no trains were going to run through the area for several days in any case. Yet in the previous two years, it had imposed only 23 such notices on railway companies, none of which related to signalling. In the same period there were 3,616 train accidents which resulted in 73 deaths, 661 worker injuries and 5,473 injuries to members of the public. While many of these may not have been the responsibility of the railway companies, it seems extraordinary that the HSE prosecuted in only 13 cases.
Unfortunately Lord Cullen’s terms of reference for the public inquiry into Paddington do not include serious consideration of how the HSE operates. But this is hardly surprising since the Health and Safety Commission, which directs the HSE, appointed him and then wrote his terms of reference.
This month happens to be the HSE’s 25th anniversary. It is surely time that somebody took a fresh look at it and at the rest of our law on safety.
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