A historic legal case making it far easier for crash victims to win a conviction against a company for manslaughter was delivered to the Attorney General - on the same morning as the Paddington rail disaster, writes Paul Harris.

The ground-breaking document is written by Queen's Counsel Richard Lissack, who prosecuted Great Western Trains after the Southall rail crash and was defence counsel during the Lyme Bay corporate manslaughter trial.

In future, entire companies could be convicted of manslaughter without the need to prove that any senior executives knew of any gross negligence, if his appeal against the judgement made during the Southall case becomes law. The case is due to heard by the Court of Appeal shortly.

Mr Lissack told the Oxford Mail: "If I am right and we succeed in the argument, it will mean that a large corporation will be able to be convicted of manslaughter, without the need to fix upon any identifiable human being as being responsible for the crime first.

"If it succeeds there will be a new law.

"It would make the prosecution of companies for manslaughter infinitely more easy." Mr Lissack realised the need for a new law following the failure of successive British Governments to put a draft Bill by the Law Commission - enshrining the same ideas - on the statute book in 1995.

He said: "The Law Commission's Bill did not become law because no Government has found time for it in their legislative programme.

"It is just not a high priority for them.

"The Law Commission have recommended that the law requires changing in order to fix a corporation with liability. "No Government has yet found the time for such recommendations, and none is envisaged.

"I would not be surprised, however, to see the Law Commission's draft Bill given a much higher priority in the light of these two terrible train crashes.

"The Bill would completely change the approach to prosecuting companies for manslaughter in this country.

"I think that the law of manslaughter by gross negligence is simply not keeping pace with the modern corporate structure. "In the Southall case, I argued that in fact there is a completely different way of prosecuting manslaughter with gross negligence.

"The argument is that the law of negligence in crime becomes the same as the law of negligence in civil cases. The only difference is whether or not the conduct was so bad as to be categorised as gross.

"In civil negligence, if you are killed after a train crash you sue the company which is automatically liable directly to you.

"Why should it be any different in crime? I think the argument has an irresistible logic. "I think before the decision in the Zeebrugge case (the Herald of Free Enterprise ferry disaster), there was not the certainty that a corporation could be convicted of the offence of manslaughter.

"In English law, after the Zeebrugge case that established beyond doubt it could even when the case failed, there has been no real incentive to address the issue of corporate liability for manslaughter, because there are other offences which carry the same unlimited financial penalty. For example, the breaching of the Health and Safety at Work Act. "Recent events have caused a clamour of people saying 'why cannot companies where they do serious wrong be prosecuted for manslaughter? Why is the train driver up in court and the train company cannot be?'.

"In my view, there is a perfectly sound basis for prosecuting for manslaughter in the English criminal law, without the need to identify a particular senior officer as being to blame as a pre-condition to convict the company.

"In the Lyme Bay case, OLL Limited was convicted because their managing director was convicted. "As the law stands now, to convict a company you must first convict a senior officer of it. This is where the law and public opinion part company. The larger the company the more difficult it is to say that any given senior director is personally to blame.

"For example, if you have a large railway company you have a main board of directors at which decisions are taken as to the safety systems that should be operational on their trains. "Unless you can say first of all which director it was, and who was responsible for that particular decision, and go on to say that as regards the specific incident a particular director personally authorised or procured the wrong-doing alleged, then the director cannot be convicted because it is a limited company and they have certain legal protections.

"It means the bigger the company the more diffuse the safety systems. The more diffuse the chain of command as to the safety decisions the harder it is to prosecute them for manslaughter. "The large company escapes conviction and the small company does not.

"In respect of the Southall case against Great Western Trains, the judge ruled that there was not a case in manslaughter against the company.

"The company pleaded guilty to the Safety at Work Act and got the biggest fine in related legal history to that effect.

"We are currently appealing the judge's decision on manslaughter in the Southall case to the Court of Appeal, and then if necessary to the House of Lords in an attempt to have the law reinterpreted. This is a route we are taking in anticipation of there still being no change in the law of corporate liability for killing - as proposed by the Law Commission. "I do not think the Court of Appeal will hear this case until early next year. The report is called an Attorney General's Reference, where the Attorney General refers a major legal question to the High Court for its opinion.

"Across Europe and in the USA companies are regularly prosecuted for manslaughter. There has not been much will to prosecute companies for manslaughter in Britain.

"It was seen as being slightly inappropriate to expose companies to that threat. It was not very British."

After the Southall disaster, Great Western trains denied seven charges of manslaughter by gross negligence. Mr Lissack, the prosecuting barrister, said at the time: "It seems that the criminal law stands guilty of failing to keep pace with the changing face of corporate life in the last part of the 20th century.

"For if a company is large with responsibility to safety assumed by no-one and avoided by everyone, it may conduct its undertakings as negligently as it wishes and know that unless the prosecution can prove beyond doubt that a directing mind of the company personally authorised, procured or directed the specific wrong, neither that individual or the company can ever be convicted of manslaughter." Mr Lissack was also defence counsel at the Lyme Bay trial - the first in this country where a company was convicted of manslaughter following the deaths of four teenagers on a canoeing trip on the south coast.

By chance, the papers of his case to the Court of Appeal were delivered to the Attorney General's office, near Buckingham Palace, on the morning of Tuesday, October 5. The same morning as the Paddington rail disaster.

Story date: Friday 15 October

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