Fault Lines

Killed anybody lately? Perhaps you have, but nothing much came of it.

Joking aside, from next month you could be prosecuted under the new crime of corporate manslaughter.

You might well be forgiven for having forgotten that this was one of the manifesto promises of New Labour when it came to office in 1997. The debate around corporate manslaughter legislation had actually reached fever pitch a decade before that, following the sinking of the Herald of Free Enterprise when 187 people drowned in the English Channel.

At the inquiry into the disaster the judge was clear about who he thought was to blame: "All concerned in management… were guilty of fault. From top to bottom the body corporate was infected with the disease of sloppiness."

Yet the prosecution failed. And since 1992, despite a number of high profile rail disasters in which certain companies were clearly culpable, only eight organisations have been convicted of manslaughter as a result of their gross negligence - none of them big corporations.

In fact, it seems the bigger you were the more likely you were to get off. As lawyer John Williams explained at a recent seminar, organised for the hospitality industry by licensing solicitors Poppleston Allen, the Herald of Free Enterprise case demonstrated that in order for a prosecution to succeed it would have to pin the blame on an individual - something which is extremely difficult to do in a large, complex organisation.

Crucially, the new Corporate Manslaughter and Corporate Homicide Act makes it possible, in Williams' words, "to aggregate the faults of different managers" and find the whole company guilty.

The penalties are severe. Depending on the seriousness of the case a company can be fined up to 10 per cent of its annual turnover - running into many millions for a lot of pubcos. The minimum fine is 2.5 per cent, not small beer either.

The courts also have wide ranging powers to impose 'remedial orders' to put failures right - such as compulsory training for staff.

But in some ways the most damaging penalty for a people-facing hospitality business are 'publicity orders'.

A pubco found guilty of corporate manslaughter may be instructed to advertise its lethal shortcomings - in the press, on its website and to its own shareholders and customers. It is conceivable that a pub chain may be ordered to put up posters at all its pubs warning anyone tempted to pop in for a drink that their prospective host has been known to kill its customers.

"Think how uncomfortable that might be," said Williams. Not to mention the impact on trade and recruitment.

But should the pub industry worry? After all, it doesn't run cross-Channel ferries or trains. Williams' answer is an emphatic yes, citing a current case in which a barman died after being electrocuted by an unearthed glasswasher. But one can think of plenty of other examples - food poisoning especially springing to mind.

Who would be responsible? The new corporate manslaughter law uses the phrase 'senior management' - the people who make the decisions about how work is organised or who directly manage the work.

So for a pub that could be anyone from board directors through regional and area managers down to the manager of the house. If any of them have been in 'gross breach' of their responsibilities - for instance, in making sure food safety procedures happen - the company itself could be prosecuted.

It may be that they failed to spot an obvious health and safety risk, that they showed indifference to a risk, that they made a conscious decision to take a risk or that they were incompetent when it came to minimising a risk.

The scope of the new law is broad. Killing people just won't be so easy to get away with any more.