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Corporate killing's legal eagle

SAFETY

Barrister Gerard Forlin has just been appointed adviser to the General Council of the Bar on the Corporate Manslaughter Bill. He tells Emma Crates why the noose is tightening on directors who do not take safety seriously enough

TIME is at a premium for Gerard Forlin.He sweeps into the interview at his chambers at Gray's Inn hotfoot from an air traffic controllers' conference in Holland. First he has to take a call about a fraud trial, later he has to get to the launch of a book to which he has contributed, in between preparations for his next case.

It is not surprising people make demands of Mr Forlin.Described in legal publications as an 'excellent' and 'flamboyant' orator, he has made his name as one of the Bar's few specialists in workplace death.He deals with around 40 workplace fatalities a year and has acted for house builders, developers, railway maintenance companies and a slew of blue chip clients.

He has seen at close hand how mistakes in procedure have ended up with senior executives in the dock.

'As I was saying at the conference this morning, it's understandable that the air industry is concentrating on risk airside, but the danger is that companies take their eye off the ball landside. Everyone's looking out for the big crash, the big collision. But it is important to bear in mind that lots of prosecutions are triggered from more mundane types of accidents - reversing lorries, forklift truck accidents and falls from height, ' he says.

Mr Forlin has just been nominated adviser to the General Council of the Bar on the Corporate Manslaughter Bill.Assuming Labour gets re-elected, the Bill is expected to be announced in the next Queen's Speech in autumn.The Government has already attracted criticism for watering down the Bill.

'There is no longer expected to be a change in the law regarding individuals, ' confirms Mr Forlin.'But the law against corporations will change.'

The unions may be furious that the Bill is no longer specifically targeting individual company directors. But directors, equally, cannot afford to be complacent.

'Things are going to get more wintry, 'warns Mr Forlin.He predicts there will be a higher rate of prosecutions in the future, possibly 50 or 60 a year.

'You'll find more examples of bosses and directors alongside their company in the dock on manslaughter charges. Let's be quite blunt. Juries' best friends are not corporations and, once bosses get in front of the jury, life is going to get difficult, ' he says.

This was demonstrated last month when Lee Harper, managing director of Harper Building Contractors in Cannock, was jailed for 16 months after an inexperienced roofer fell to his death on one of the company's sites.Mr Harper is believed to be the first construction boss to plead guilty to the manslaughter of an employee.

More managers than in the past are being prosecuted over industrial accidents. Sentences are also going up.

'There is no doubt about it.And the Court of Appeal has made it quite clear that they will continue to go up, 'Mr Forlin adds.

In time, he believes, changes to the law will give judges greater powers to link fines to company turnover.

'In the future judges will be able to impose on certain companies fines large enough to shut them down for not taking safety seriously, ' he warns.

Mr Forlin is also expecting to see increased powers of prosecution of British firms operating overseas. Currently British companies can be prosecuted if UK nationals die working for them abroad.

He would not be surprised to see future prosecutions over the deaths of foreign employees working for UK firms abroad.

The stigma that corporate manslaughter prosecutions could bring with them is a strong incentive for firms to take safety more seriously than some do at present. It is one thing for a company to have a health and safety conviction, quite another for it to be convicted for corporate killing.

Companies tainted with the shame of a corporate killing conviction could find themselves shunned by shareholders. Equally damaging could be the cost of insurance premiums.Already stratospherically high for some contractors, they could rocket out of reach for companies that have had serious accidents.

'There are a lot of organisations acting as policemen, observes Mr Forlin.

'In many ways the shareholders and insurers are as important in this role as the regulators.'

Nor should the clients be complacent.

'I don't think a lot of clients and developers understand that it's very difficult to divorce themselves from a contractor's negligence in criminal law, ' he says.

Last year he defended a property developer who was prosecuted for manslaughter over the death of a construction site worker.

'He was acquitted. But I think it was one of the first cases ever of a property developer being prosecuted for manslaughter, ' he says.

Mr Forlin warns that prosecutors are increasingly looking to show that human error, responsible for 80 per cent of all construction accidents, is a problem of the system and that the system is the responsibility of the board and management.

'I don't think that's fully understood at board level yet. Especially in the construction industry, ' he says.

So bosses need to ensure that the company rules are not only enforced, but that the workforce understands them. Recently Mr Forlin prosecuted a very large company.A rigger had gone into a roof vault without a harness and had fallen to his death.At the trial the company pleaded guilty at the first opportunity, because its systems had not been robust enough to prevent the man from going into a place of danger without appropriate safety equipment.

'The fact that the man should not have been there in the first place didn't negate the company's criminality, ' says Mr Forlin.'Because someone has clearly violated all procedures does not automatically absolve the responsibility of the employer in criminal law.'

Some safety campaigners argue that, because manslaughter and accident prosecutions invariably wind up in long, drawn-out cases, potential safety lessons that could be learned by the sector as a whole become submerged in the trial, then lost.Mr Forlin admits that this can be a problem.

'It's probably in everyone's interest that details about the accident are out in the sunshine. But you can't expect people you are prosecuting to be tremendously happy about helping, ' he says.

But what can companies do to help themselves guard against potential safety breaches? Mr Forlin's concern is the problem of poor communication from management to site worker level.

'Safety is very heavily documented but I don't always see that documentation being cascaded down in a palatable form to the site.

Instead of passing over lever arch files, tool box talks are more effective, ' he says.

The new Bill

LABOUR MP Stephen Hepburn is in the process of introducing a Private Members Bill with the aim of ensuring that directors are held to account by law.

Mr Forlin does not think that the Bill is necessary.'There is clear guidance on the duty of boards that has been in existence since 2001, ' he says.'So I'm not sure to what extent a Bill is going to make a huge amount of difference.

'Boards are pretty clear on their responsibilities.And there is a danger of overregulation. If you're not careful, you're going to get people - non-executive directors, for example - unwilling to act for companies on a voluntary basis.

Also, if regulation is perceived as too intense, it will have an adverse effect on foreign investment.'

Gerard Forlin has published extensively on corporate manslaughter issues and is general editor of Corporate Liability: Work-Related Deaths and Criminal Prosecutions, published by LexisNexis Butterworths in 2004.He will be speaking at the Construction News Health and Safety in Construction Conference, which takes place in London on April 14. For more information visit: www. constructhealthandsafety. co. uk or email constructconferences@emap. com