Criminal liability of directors and senior managers for deaths at work

Criminal Law Review

Volumn , Issue DEC., 2007, Pages 949-968

  Wright, Frank B ^a  

^a UNIVERSITY OF WARWICK   (United Kingdom)

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EID: 36749039747     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (129)

1. C.M.V. Clarkson, "Corporate Manslaughter: Yet More Government Proposals" [2005] Crim. L.R. 677. Professor Clarkson observes that "The capsize of the ferry, Herald of Free Enterprise, which caused the deaths of 192 people in 1987 and the failure to obtain a conviction in the subsequent prosecution was the initial prompt to much of the interest in this topic".
2. In Scotland the offence is called corporate homicide.
3. That an indictment for manslaughter could lie against a company was assumed by the Divisional Court in R. v HM Coroner for East Kent Ex p. Spooner (1989) 88 Cr. App. R. 10 and decided at trial in P&O European Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72 and applied in OLL Ltd, December 10, 1994, Crown Court. Crown immunity does not apply to the offence although a number of public bodies and bodies will be exempt from it. The statute sets a standard for the organisation and culture of the organisation. An organisation owes a duty to take reasonable care for the person's safety in certain circumstances. An offence will have been committed if there is a management failure by its senior managers which amounts to a gross breach of that duty which has resulted in a person's death.
4. See CBI Response to the Home Office Consultation Document: Corporate Manslaughter, the Government's Draft Bill for Reform (CBI, June 17, 2005).
5. See Corporate Manslaughter Report (IoD Press Office, December 19, 2005).
6. In England the underlying assumption is that corporate criminality is designed to deter managerial criminality. See L.H. Leigh, The Criminal Liability of Corporations in English Law (London: Weidenfeld and Nicolson, 1969), p.113.
7. See fn.24 below.
8. P.R. Glazebrook, "A Better Way of Convicting Businesses of Avoidable Deaths and Injuries" [2002] C.L.J. 405 and G. Williams, Criminal Law: the General Part (2nd edn, London: Stevens, 1963).
9. C. Wells, "Corporations: Culture, Risk and Criminal Liability" [1993] Crim. L.R. 551 at p.565; C. Wells, "The Corporate Manslaughter Proposals: Pragmatism, Paradox and Peninsularity" [1996] Crim. L.R. 545 at p.553 and C. Wells, Corporations and Criminal Responsibility (Oxford: Oxford University Press, 2001).
10. C.M.V. Clarkson, "Corporate Manslaughter: Yet More Government Proposals" [2005] Crim. L.R. 677 at p.689.
11. N. Gunningham and R. Johnstone, Regulating Workplace Safety (Oxford: Oxford University Press, 1999), pp.215, 219
12. Director disqualification powers in relation to the management of a company have been in place since the coming into force of the Company Directors' Disqualification Act 1986. Those powers are not confined to directors or shadow directors, but extend also to persons involved in the management of a company. The trigger for the disqualification powers being made available is conviction for an indictable offence, which thus makes the disqualification sanction of potential relevance to health and safety prosecutions which involve statutory offences triable on indictment. This potential is not confined only to convictions under s.37 of the Health and Safety at Work etc. Act 1974. It is open to the prosecution to make a specific application for a disqualification order to be made, or, alternatively, the court may decide of its own motion to invoke the powers granted under die 1986 Act.
13. In 2000 the government proposed that individual directors should be disqualified if they were shown to have had some influence or responsibility for the management failure in a corporate killing prosecution, Home Office, Reforming the Law of Involuntary Manslaughter: the Government's Proposals (London: HMSO, 2000). The Parliamentary Under-Secretary for the Home Department (Mr Gerry Sutcliffe) said that one of the problems has been a lack of will on the part of the Health and Safety Executive "to deliver on disqualifications" HC Deb., col.44 (December 4, 2006).
14. See also Regulatory Enforcement and Sanctions Bill. Draft Legislative Programme 2007/8, http://www.cabinetoffice.gov.uk/regulation/ erforcement_sanctions_bill/
15. Health and Safety Commission, Directors' Guidance Note INDG 343. This guidance note is currently being revised.
16. See further, The Use and Effectiveness of the Company Directors' Disqualification Act 1986 as a Legal Sanction against Directors Convicted of Health and Safety Offences, A.C. Neal and F.B. Wright, Warwick Law School, University of Warwick for the Health and Safety Executive 2005.
17. CDDA 1986 s.2(3).
18. Law Commission, Legislating the Criminal Code, Involuntary Manslaughter, HC 171, 1996
19. fn.18 above, 4.
20. Influenced no doubt by the findings of the Sheen Inquiry in its investigation of the Zeebrugge Ferry Disaster, UK, Department of Transport, MV Herald of Free Enterprise (1987) Report of Court No.8074, para.14.1.
21. Tesco Supermarkets Ltd v Nattrass [1972] A.C. 153.
22. Wilsons & Clyde Coal Co Ltd v English [1938] A.C. 57.
23. Notwithstanding the Accessories and Abettors Act 1861 s.8 as amended by the Criminal Law Act 1977 s.65(4) Sch.12. The section, which placed the common law on a statutory footing, provides: "Whosoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed, shall be liable to be tried, indicted, and punished as a principal offender." The TUC said in their evidence to the House of Commons Joint Select Committee for Home Affairs and Work and Pensions on the Draft Corporate Manslaughter Bill that the government must look at the responsibilities of directors with a view to tighter regulation. Written Evidence, the House of Commons Joint Select Committee for Home Affairs and Work and Pensions on the Draft Corporate Manslaughter Bill. HC 540-11 Ev17 (2005).
24. Law Commission, Legislating the Criminal Code, Involuntary Manslaughter, HC 171 (1996), para.8.58.
25. Professor Lord Wedderburn of Charlton, Q.C., F.B.A., HL Deb., col.539 (February 5, 2007).
26. Robens, Report of the Committee on Safety and Health at Work, Cmnd.5034 (1972), 83, para.264.
27. See C.M.V. Clarkson, "Corporate Manslaughter: Yet More Government Proposals" [2005] Crim. L.R. 677. In Great Western Trains (1999) Scott Baker J. stated: "There is little purpose in the Law Commission making recommendations if they are to be allowed to lie for years on a shelf gathering dust. . . It has remained notoriously difficult for the Crown to establish manslaughter against a corporation and as far as I am aware they have only succeeded once and that was in the case of a one-man company,"
28. Great Western Trains Co Ltd, July 27, 1999, Central Criminal Court.
29. The collision at Ladbroke Grove on October 5, 1999 cost 31 lives, with over 400 people suffering injuries, many of them serious. This was a major disaster that led to a public inquiry, held by Lord Cullen, into safety on the nation's railways. See Thames Trains, April 5, 2004, Central Criminal Court.
30. Balfour Beatty Rail Infrastructure Services Ltd [2007] I.C.R. 354, CA.
31. In October 2005 the Crown Prosecution Service (CPS) advised: "After giving careful consideration to the large volume of evidence provided, the CPS has advised that it does not provide a realistic prospect of conviction for an offence of gross negligence manslaughter against any individual or corporation."
32. HMA v ICL Plastics Ltd and ICL Tech Ltd, August 28, 2007, High Court, Glasgow, http://www.crownoffice.gov.uk/News/Releases/2007/08/ 28121737, Financial Times, August 29, p.4.
33. Corporate Manslaughter and Corporate Homicide Act 2007, c. 19. See also Bob Sullivan, "Corporate Killing-Some Government Proposals" [2001] Crim. L.R. 32.
34. Rt. Hon. John Denham M.P., HC Deb., cols 46 and 47 (December 4, 2006).
35. See Directors' Responsibilities for Health and Safety: the Findings of Two Peer Reviews of Published Research, F.B. Wright, Salford University and P.S. James, Middlesex University Business School for the Health and Safety Executive 2006 (Research Report 451).
36. See also Enlightened Shareholder Value and the New Responsibilities of Directors, P.L. Davies, London School of Economics, lecture delivered at the University of Melbourne Law School, October 4, 2005 and C.A. Williams and J.M. Conley, "An Emerging Third Way? The Erosion of the Anglo-American Shareholder Value Construct" (2005) 38 Cornell L.R. 493.
37. See, for example, The Government Reply to the First Joint Report from the Home Affairs and Work and Pensions Committees 2005-2006, HC 540. Draft Corporate Manslaughter Bill, Cm.6755 (March 2006) and the Health and Safety Commission's decision on May 9, 2006 to develop new authoritative guidance on director responsibility for health and safety. Letter from Bill Callaghan, chair, Health and Safety Commission to Lord Hunt, Parliamentary Under-Secretary, Department of Work and Pensions, May 15, 2006. This standard setting has been assisted by the OECD Principles of Corporate Governance - VI. The Responsibilities of the Board (ISBN 92-64-01597-3).
38. HMA v Transco Plc (2005), http://www.Copfu.gov.uk/news/ releases/2005/09/14110121.
39. Thirty-one people died when a First Great Western train hit a Thames Trains service at Ladbroke Grove, West London. This follows a fine of £2 million on Thames Trains on April 5, 2004 in relation to the same incident.
40. See J. Gobert, "Corporate Criminality: New Crimes for the Times" [1994] Crim. L.R. 722. A wider range of sanctions will shortly be available: see the Draft Regulatory Enforcement and Sanctions Bill (Cabinet Office, 2007). The Penalties Review, established under the leadership of Richard Macrory, made a number of recommendations that aim to ensure that regulators have access to a flexible set of modern, fit-for-purpose, sanctioning tools that are consistent with the risk based approach to enforcement outlined by Philip Hampton. Alternative sentencing options will be available in criminal courts. A new penalties regime is expected to be introduced in 2007-2008.
41. F Howe & Son (Engineers) Ltd [1999] 2 Cr. App. R. (S.) 37.
42. Capitalisation in excess of £100 billion.
43. Oppenheimer & Co, the broker-dealer and investment advisory firm, estimated that BP may have lost $25 billion in market value over the last 12 months as a result of operating setbacks.
44. It was announced in May 2007 by the US Transport Department and Hazardous Materials Safety Administration that BP is likely to be heavily fined for spilling 200,000 gallons of crude oil in Prudhoe Bay, Alaska in 2006. See also the remarks of US Representative George Miller (D-CA), chairman of the House Education and Labor Committee, US House of Representatives, Thursday, March 22, 2007, http://edlabor.house.gov/. On July 20, 2007 the US Occupational Safety and Health Administration issued one wilful and four serious citations with penalties totalling $92,000 to BP Products North America for violations found at BP Texas City refinery, Houston following the explosion in March 2005, http://www.osha.gov/pls/oshaweb/owadisp.show_document? p_table=NEWS_RELEASE.
45. Representative John Dingell (D-MI), chairman of the House Committee on Energy and Commerce said on March 20, 2007: "In the light of Texas City and the Prudhoe Bay spill, BP's management must make safety their top priority. The millions of dollars in fines that were levied against BP after the explosion have done little more than close the door after the horse has left the stable. It's clear that both additional oversight measures and sweeping cultural changes are critical." http://energycommerce.house.gov/Press_110/110nr17. shtml.
46. See the Public Company Accounting Reform and Investor Protection Act of 2002
47. Internal Control: Guidance for Directors on the Combined Code (Revised Turnbull Guidance on Internal Control was issued in October 2005. Since the publication of the Cadbury Report in 1992, Britain has seen over a dozen inquiries.)
48. On this point see also, C Wells Corporate Manslaughter Reforming the Law (Freedom to Care, 1993), http://www.freedomtocare.org/page166.htm.
49. E. Wymeersch, Enforcement of Corporate Governance Codes, Law Working Paper No.46/2005 (Ghent, Belgium: European Corporate Governance Institute).
50. See further, A. Belcher, "Corporate Killing as a Corporate Governance Issue" (2002) 10 Corporate Governance 47.
51. This statute will be fully in force from October 2008.
52. Companies Act 2006 s.172.
53. Draft Guidance, Leading Health and Safety at Work (London: Health and Safety Commission, 2007), 12pp.
54. Companies need to improve their descriptions of resources available to the entity, in particular intangible items such as brand strength, corporate reputation and natural resources not reflected in the balance sheet. They also need to describe more carefully their principal risks and uncertainties, and set out their approach to managing and mitigating those risks, rather than simply providing a list of all their risks and uncertainties
55. Bishopsgate Investment Management Ltd v Maxwell (No. 1) [1994] 1 All E.R. 261 at 264.
56. S. Dawson, P. Willman, M. Bamford and A. Clinton, Safety at Work: the Limits of Self-regulation (Cambridge: Cambridge University Press, 1988). The matter was recently addressed in the courts in Network Rail Infrastructure Ltd (formerly Railtrack Plc). On September 6, 2005, Network Rail (Railtrack) was found guilty of health and safety charges, but the five individuals involved were found not guilty. On October 7, 2005, Network Rail was fined £3.5 million and Balfour Beatty was fined £10 million and both were ordered to pay £300,000 costs each. The fine for Balfour Beatty was subsequently reduced on appeal to £7.5 million.
57. See also, Attorney-General's Reference (No.2 of 1999) [2000] 3 All E.R. 182.
58. Robens, Report of the Committee on Safety and Health at Work, Cmnd.5034 (1972), pp.15-17.
59. See generally, F.B. Wright, Law of Health and Safety at Work (London, 1997).
60. See, for example, Theft Act 1968 s.18; Fire Precautions Act 1971 s.23; Trades Description Act 1968 s.20 and Banking Act 1987 s.96(1).
61. By s.53 the term "the relevant statutory provisions" includes the provisions of Pt 1. Health and Safety at Work etc. Act 1974 s.2(1) states that it is the duty of every employer to ensure so far as is reasonably practicable, the health, safety and welfare at work of his employees. Section 3 provides that employers and the self-employed should conduct their undertakings in such a way as to ensure that those who are not in their employment should not be exposed to risks to their health and safety. See C.D. Drake and F.B. Wright, The Law Relating to Health and Safety at Work: the New Approach (London: Sweet & Maxwell, 1983). In 2005 in oral evidence to the House of Commons' Home Affairs and Work and Pensions Sub-committees, the Parliamentary Under-Secretary of State at the Home Office, Fiona Mactaggart MP, argued that "the individual gross negligence manslaughter and the capacity to prosecute individuals under health and safety legislation do give one a framework where the individual level of responsibility can properly be dealt with".
62. Limited Liability Partnerships (LLP) are bodies corporate. See Limited Liability Partnership Act 2000.
63. Mackay J. held in Network Rail Infrastructure Ltd (formerly Railtrack Plc) (2004) that the Act is looking to place within its reach those whose seniority and subjective knowledge of the fact constituted criminal conduct.
64. J.C. Smith, "Criminal Liability of Directors" [1997] Crim. L.R. 55.
65. In Davies [2003] I.C.R. 586 it was held, obiter, that: "The reverse onus only applies to breach of the duties laid down by ss.2 to 6 of the Act. It does not apply to s.7, so there is no reverse onus of proof where it is alleged that an employee has breached his duty, The same applies to s.37 where a company's officers may be convicted if the company has committed an offence and they are proved to have consented, connived or contributed to it by neglect."
66. The prosecution must show that the body corporate committed an offence as part of the s.37 case. Under the common law an acquittal of an alleged principal at an earlier trial is no bar to the subsequent conviction of an accessory since it is irrelevant, being merely evidence of the opinion of the first jury see Hui Chi-Ming v R. [1992] 1 A.C. 34.
67. [1996] 2 Cr. App. R. 320.
68. [1996] Crim. L.R. 576.
69. Huckerby v Elliott [1970] 1 All E.R. 189 re Customs and Excise Act 1952 s.305.
70. Wotherspoon v HM Advocate (1978) J.C. 74 (High Court of Justiciary). In a case concerned with "neglect" it is necessary for the prosecution to prove (a) the predicate offence; (b) the person is a "director, manager, secretary or other similar office holder" within the terms of s.37; (c) the person had a duty to inform himself of the facts which made up the predicate offence; (d) the person had a duty to act in relation to those facts; (e) the officer was neglectful of those duties; and (f) the commission of the predicate offence was attributable to that neglect.
71. Armour v Skeen [1977] S.L.T. 71; [1977] I.R.L.R. 310.
72. Lord Justice-Clerk.
73. Armour v Skeen, fn.67 above.
74. P Ltd, fn.78 below.
75. Armour v Skeen, fn.67 above.
76. P Ltd, fn.78 below.
77. HC Deb, 1062W (January 20, 2005).
78. Provisional figures are the only ones currently available.
79. Leigh has argued that when Parliament uses directors' liability clauses in regulatory legislation it sets out its clear intention that "not only shall corporate officers not commit or facilitate the commission of regulatory offences, but that they should also police the corporation to the extent that the nature of their functions permits, and shall be held personally liable for a failure to do so". See L.H. Leigh, The Criminal Liability of Corporations in English Law (London: Weidenfeld and Nicolson, 1969), pp.175-178.
80. Sandra Dawson, et al., m.53 above.
81. The use and effectiveness of the Company Directors' Disqualification Act 1986 as a legal sanction against directors convicted of health and safety offences. A.C. Neal and F.B. Wright, Warwick Law School, University of Warwick for the Health and Safety Executive 2005.
82. P Ltd, unreported, July 11, 2007, CA, http://www.lawreports.co. uk/WLRD/2007/CACRIM/jul0.2.htm.
83. Current guidance is given in "Proceeding against 'Director, Manager, Secretary or Other Similar Officer' HSWA s.37" (Health and Safety Executive), http://www.hse.gov.uk/enforcementguide/investigation/identifying/ directors.htm
84. 1974 Act ss.2-6.
85. Davies v Health and Safety Executive [2002] EWCA Crim 2949; [2003] I.C.R. 586 (obiter). The reasoning in this case was informed by the decision in R. v DPP Ex p. Kebilene [2000] 2 A.C. 326.
86. Mackay J. in Network Rail Infrastructure Ltd (formerly Railtrack Plc) (2004) , No similar difficulties beset the Crown Court in a number of other cases.
87. See, for example, the Crown Court at Snaresbrook in Sullivan Management Control Ltd and CT Sullivan, September 16, 1985. Sullivan pleaded not guilty but was convicted and sentenced to a fine of £1,500 for breach of s.37 and to a term of one-month imprisonment, suspended for two years, for contravention of a prohibition notice.
88. See fn.56 above.
89. Home Office, May 2000.
90. HC Deb., col.44 (December 4, 2006).
91. 85A. Walters and M. Davis-White, Directors' Disqualification and Bankruptcy Restrictions (London: Sweet & Maxwell, 2005).
92. See also, G. Slapper, "Crime without Conviction" (1992) 142 N.L.J 193;
93. F.B. Wright, Law of Health and Safety at Work (London: Sweet & Maxwell, 1997), p. 152.
94. [1998] 1 B.C.L.C. 676.
95. Between 2003 and 2004, over 1,500 UK company directors have been disqualified from management for between 2 and 15 years.
96. L.H. Hoffman, "The Fourth Annual Leonard Sainer Lecture" (1997) 18 Co. Law 194 at p.197.
97. See also, the views of Jonathan Parker J. in Re Barings Plc (No.5) [1999] 1 B.C.L.C. 433 at 484.
98. HC Deb., cols 1429-30 (November 22, 1991).
99. HC Deb., col. 1234 (March 4, 2005).
100. See the comments of the Law Reform Committee of the General Council of the Bar, Written Evidence, the House of Commons Joint Select Committee for Home Affairs and Work and Pensions on the Draft Corporate Manslaughter Bill. HC 540-11 Ev 121 (2005), the Law Society Written Evidence, the House of Commons Joint Select Committee for Home Affairs and Work and Pensions on the Draft Corporate Manslaughter Bill. HC 540-II Ev 223 (2005), the Association of Personal Injury Lawyers, Written Evidence, the House of Commons Joint Select Committee for Home Affairs and Work and Pensions on the Draft Corporate Manslaughter Bill. HC 540-II Ev 243 (2005) and Professor G.R. Sullivan, Written Evidence, the House of Commons Joint Select Committee for Home Affairs and Work and Pensions on the Draft Corporate Manslaughter Bill. HC 540-II Ev 33 (2005).
101. C. Wells, fn.46 above, p. 162.
102. The Use and Effectiveness of the Company Directors' Disqualification Act 1986 as a Legal Sanction against Directors Convicted of Health and Safety Offences, A.C. Neal and F.B. Wright, Warwick Law School, University of Warwick for the Health and Safety Executive 2005.
103. By virtue of ss.22A-22C, s.2 of the 1986 Act applies expressly to building societies and NHS foundation trusts. The scope of the Act is further expanded by s.22, which, inter alia, provides that (with the exception of s.11) the expression "company" in the Company Directors' Disqualification Act 1986 includes any company which may be wound up under Pt V of the Insolvency Act 1986.
104. The Company Directors' Disqualification Act 1986 s.2 applies to European Companies (SE), provided that the head office of any such body is situated in the United Kingdom (see Council Reg.2157/2001) and to foreign companies in relation to which British courts have jurisdiction, as well as to European Interest Groupings registered in Great Britain.
105. CDDA 1986 s.2. See s.16(2) as to the wide categories of persons who may apply for a disqualification order under this provision, but note Juer v Lomas [2001] All E.R. (D) 309;
106. affirmed [2001] EWCA Civ 1568 (need for applicant to have legitimate interest in the relief sought). An application for disqualification can be made under this provision even though the court which has convicted the individual director has refused to make an order: Re Samuel Chandler Ltd, Secretary of State for Industry v Nimley [2002] All E.R. 283.
107. Austen (1985) 7 Cr. App. R. (S.) 214.
108. See also Corbin (1984) 6 Cr. App. R. (S.) 17;
109. Georgiou (1988) 4 B.C.C.322. In Goodman [1993] 2 All E.R. 789; [1994] 1 B.C.C. 322 a director had been disqualified following a conviction for insider dealing in his company's shares while in possession of unpublished information regarding the company's trading position. He argued that he should not be disqualified since the insider-dealing offence was not an offence committed in connection with the management of the company. The Court of Appeal held that it was not necessary to establish that the offence related to the management of the company itself-it was sufficient that the offence did have some factual connection with the management of the company. On the facts, the insider dealing offence of which he was convicted was an offence in connection with the management of the company and he was properly disqualified.
110. A director who has been formally appointed in accordance with the appropriate procedure set out in the relevant company's articles of association and has consented to act is known as a de jure director.
111. The assistance provided by the s.22(4) definition of "director" is not complete, so that further assistance has to be derived from relevant case law.
112. See Millett J. in Re Hydrodam (Corby) Ltd [1994] B.C.C. 161
113. and Re H Laing Demolition Building Contractors Ltd, Secretary of State for Trade and Industry v Laing [1996] 2 B.C.L.C. 324.
114. CDDA 1986 s.22(5). See Re Euro Express Ltd, Secretary of State for Trade and Industry v Deverett [2001] Ch. 340. The provisions setting out the definition of "shadow director" have been subject to modification, notably by the Insolvency Act 2000 ss.8 and 15, and Schs 4 and 5. The relevant provision is now set out in s.6(3)(c), for the purposes of ss.6 and 7 of the 1986 Act.
115. Goodman [1993] 2 All E.R. 789.
116. CDDA 1986 s.2(3).
117. [1990] B.C.C. 765 at 780.
118. [1988] 4 B.C.C. 415 at 419.
119. L.H. Hoffman, "The Fourth Annual Leonard Sainer Lecture" (1997) 18 Co. Law 194 at p.196.
120. [1993] B.C.C. 312.
121. The Crown Prosecution Service, Association of Chief Police Officers (ACPO), the Health and Safety Executive (HSE), Local Government Association (LGA) and British Transport Police (BTP) have published Work Related Deaths - a Protocol for Liaison. The protocol provides a framework for effective liaison and is based on best practice. It aims to achieve a consistent approach between HSE's operational directorates and divisions, the 43 police forces in England and Wales and the respective CPS offices. At the same time, it allows flexibility on a case by case basis. It addresses the Attorney-General's "Prosecutors' Convention", which requires prosecuting authorities to have adequate arrangements for liaison in cases of mutual interest.
122. P.R. Glazebrook, fn.9 above.
123. The Fraud Advisory Panel, Working Party Papers: The Legal Relationship between the Serious Fraud Office and the Police, C. Dickson, P. Hyatt, J. Knox, S. Low and D. Roberts (1998), http://www.fraudadvisorypanel.org/ newsite/PDFs/publications/Relationship%20of%20SFOPolice.pdf.
124. See, N. Gunningham and R. Johnstone, Regulating Workplace Safety - Systems and Sanctions (Oxford: Oxford University Press, 1999), pp. 197-198 and Written Evidence submitted by Eversheds, solicitors, to die House of Commons Joint Select Committee for Home Affairs and Work and Pensions on the Draft Corporate Manslaughter Bill. HC 540-II Ev 189 (2005). There has been criticism by some because the Health and Safety Executive only brings a prosecution in 20 per cent of cases where death has occurred at work.
125. See D. Bergman, The Case for Corporate Responsibility (Disaster Action, 2000).
126. Health and Safety Commission, Directors' Guidance Note INDG 343. This guidance note is currently being revised.
127. Re Barings Plc (No.5) [1999] B.C.C. 433 at 487.
128. The reluctance of the criminal courts to impose disqualification orders was noted in the Report on Parallel Proceedings by the Financial Regulation Working Group of the Society for Advanced Legal Studies published in 1999 (chairman: George Staples Q.C.) as follows: "Although there are exceptions, criminal courts have not always been willing to exercise their powers in the field of company director's disqualification, perhaps because it is a jurisdiction that is slightly esoteric and with which they are not familiar."
129. See fn.54 above.