In business, reputation is everything. So the prospect of having to take out advertising space detailing exactly how your company managed to kill people all the evidence of negligence, incompetence and indifference that has led to your conviction and the size of the fine you must pay, is likely to be a major deterrent to careless boardrooms.
That is now likely to be the new legal landscape following the Royal Assent of the new Corporate Manslaughter and Corporate Homicide Bill, according to David Leckie, the partner specialising in health & safety and corporate man- slaughter with "Big Four" law firm Maclay Murray & Spens.
The bill passed its final stage last week and could be on the statute book as early as this week. It has been a long time coming, say legal experts.
More people are killed each year at work than in wars - and the new law will do something about it, says Gary Slapper, director of the Open University law programme. He said: "The new law is one of the most significant legislative changes to corporate responsibilities since the principles of the modern company were crystallised in the 14th century.
"The legislation makes it easier to convict culpable organisations. But the new law has not lowered the threshold of guilt: it criminalises only an organisation whose gross negligence results in death."
Its enactment is of particular interest to Scotland, which, until relatively recently, was to have its own corporate killing legislation - one that would have seen guilty directors go to prison if convicted. Now, however, the country will be bound by Westminster law. In Scotland, the Act will create a new offence of corporate homicide, which will be equivalent to corporate manslaughter in England and Wales.
In England, a series of high-profile accidents including the Southall and Paddington rail crashes fuelled the case for change. In Scotland, it was the Larkhall gas explosion in 1999. They showed the huge burdens in mounting a successful prosecution against negligent companies because of the need to identify one senior person in the company who knew enough to be liable.
But an attempt to criminalise negligent killing, and attach culpability directly to individual directors of a company in the wake of that explosion, failed. The Larkhall blast, caused by a corroded pipe, killed a family of four and wrecked a suburban street. Transco directors were personally charged with culpable homicide, but the charges were thrown out at the High Court.
However, the case brought by the Health and Safety Executive against the company stuck, and Transco was fined £15m - still the biggest fine in UK legal history.
Lessons were learned, and to convict a company under the new offences of corporate manslaughter in England and Wales, or corporate homicide in Scotland, the prosecution must only prove that there was the "gross breach" of senior management's duty of care.
Until now, in Scotland, all successful prosecutions for corporate culpable homicide have been brought under Health and Safety legislation and investigated by the Health and Safety Executive.
Under the new legislation, because it will not seek to attach personal blame, such actions - even though now criminalised - are more likely to succeed, and similar fines can be expected.
"The only difference now", says Leckie "is that the company being prosecuted will have the police crawling all over them, not just some HSE inspectors."
Leckie added: "Although the Act is the product of many years of debate, consultation, lobbying and rigorous scrutiny, it will disappoint many campaigners who wanted to see senior management behind bars. No directors or other individuals will be prosecuted under the new law, there will be no sentences of imprisonment and many organisations which are unincorporated will not be caught by the provisions of the Act.
"There are many positive aspects to the Act. The stigma and reputational damage which a corporate manslaughter conviction will cause should ensure the enactment of this new law will help to make safety a priority on the boardroom agenda. Although senior management cannot be prosecuted as individuals under the Act, their actions and omissions will be under the microscope as never before and will form a major part of the prosecution's case. For the first time, the question of safety culture - or lack of it - is specifically addressed by the Act and will be a key battleground at trial.
"The fines for corporate manslaughter convictions will almost certainly be significantly higher than under health and safety law. In addition, the Act provides the courts with a new power to make a publicity order', so that companies will be required to publicise the details of their conviction.
"As a result of the new law, almost all workplace fatalities are likely to result in a joint corporate manslaughter investigation by the police and the Health and Safety Executive. Although only a handful of these investigations will lead to a prosecution, the impact of a lengthy and intrusive man- slaughter investigation on a company will be enormous."
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