Don't turn bosses into scapegoats

MUST someone be to blame? Recent legal cases suggest that the prosecuting authorities are seeking to propel the criminal law for health and safety further towards holding senior managers and directors accountable, instead of just organisations.

Examples of this include the failed prosecution of the current and former Metropolitan Police Commissioners for alleged health and safety breaches when an officer tragically died during a chase from a burglary scene.

In one respect, this is understandable. People at the top are usually paid handsomely for managing their organisations. But there is a huge difference between someone being ultimately responsible for failures in an organisation, and holding them personally and criminally liable for its every failing.

Plainly, it is right that where a duty of care is breached that there must be accountability, and there must be laws in place to punish the guilty, whatever position they hold.

But it will assist no-one if the threshold of accountability is lowered to a point where managers and directors are unable to manage efficiently, due to the constant fear of being prosecuted. That will lead to recruitment problems in multi-risk industries, where such individuals may be called upon to make hundreds of safety judgments every day.

It will also lead to overly bureaucratic systems, designed primarily to avoid liabilities, rather than to improve safety or levels of service.

To seek to target either one or a few people for supposedly causing an accident inevitably leads to unfairness.

History tells us that the reasons for accidents are never straightforward. They normally involve the complicated interaction of numerous elements.

Clear-cut circumstances - for instance, a driver crashing because he is drunk - are by their very nature unlikely to involve senior managers or directors.

This is not to say that a manager or director should not be accountable for manslaughter or other offences.

But it should be only in cases where they have procured, directed or authorised the act or omission that caused the death, rather than having some tenuous link.

Some argue that enforcement against corporations is only effective as a deterrent when it is accompanied by action against managers.

But that is not a reason for unfairly penalising individuals. A great deal of publicity has been given to the government's proposal for a statutory offence of corporate killing to replace the law of corporate manslaughter.

The latter requires the conviction of an individual so senior in the organisation that he is classified as the 'controlling mind'. The statutory offence would be based upon the collective management failure of an organisation, where that failure fell far below what could reasonably have been expected.