Privileged Offenses

[Michael Smart]

The public see these fines as the value the courts put on human life. Widows and families are shattered by the size of them.
What do sums of a few hundred pounds mean to these companies? They spend more in the bar afterwards than they pay in fines.

—— Roger Lyons
Burgoyne Committee, Glasgow Herald, June 24, 1981

In Scotland, it is a matter of public policy for prosecutors to use their office to stamp out crime.² They see the arrest and conviction of lawbreakers as part of their duty to safeguard the public interest, and punishment “a valuable component of the criminal justice process, largely because of its capacity to deter future crime.”³ But not all violations of the criminal code are viewed equally. Murder, rape, robbery, for example, occupy a higher echelon than say public drunkenness or driving without a license. And when it comes to crimes against the industrial labor force, Professor Carson says Britain has had a long history of placing corporate crime into a special category where it was “rarely thought of as ‘real’ crime.”⁴

Moreover, as this view penetrated the modern day offshore arena, tolerance towards infringement of the regulations became so pervasive and “institutionalized at a fairly high level,”⁵ that when oil companies were actually caught violating the law, those violations were “only rarely subjected to criminal prosecution.”⁶

Indeed, the Diving Inspectorate had the power to prosecute wrongdoers, but preferred instead to rely upon exhortation to convince contractors to mend their ways.⁷ Added to this dynamic were other troubling factors. Carson discovered that the legal branch of the Department of Energy and the Scottish legal system did not always see eye to eye “over whose responsibility it was to lay the groundwork for possible prosecution.”⁸ And London was not always anxious to cooperate with the investigations of Scottish prosecutors,⁹ refusing in one case to comply with a fiscal’s request for a copy of a lease which would have established the identity of a concession owner,¹⁰ and managing to persuade Scottish authorities not to prosecute an offender, in another.¹¹

This tension between the two legal powers spilled over into another fundamental law enforcement area. DOE officials believed it was the job of the police to investigate criminal activity and the coroner’s inquest to decide whether there were grounds for prosecution. But north of the border, Carson interviewed a fiscal who said it was not the job of the police officer to go offshore “looking for offences.” That was the job of the DOE inspector.¹²

Still, even if inspectors were inspired to look for lawbreakers, Parliament had removed any chance of catching them in the act. Unlike their Norwegian counterparts, who had the power to make sudden inspections without notice, UK inspectors were required to give the oil operator advance notice when they intended to fly out to have a look.¹³

The Department’s reluctance to prosecute is not surprising when one takes into account that bringing an oil company to court was inherently at odds with its role as sponsor. When Energy Secretary Tony Benn held up a bottle of crude oil in front of press reporters in 1975 and declared, “I hold the future of Britain in my hand,”¹⁴ he wasn’t just rallying the country with an inspirational slogan; he was pledging official support. To men like Commander Warner who worked under Secretary Benn, that declaration must have resonated deep within their spines because they had to know that shutting down operations and hauling rule breakers off to court was not going to help get the country out of its economic mess. As Commander Warner best describes the situation, “there were no ‘Brownie points’ for convictions.”¹⁵

Lastly, one must never discount the power of the Association of Offshore Diving Contractors. Had Chief Inspector Warner taken a harsh stand against offenders, the AODC would not have taken the matter lying down. Complaints from the Association would have rained down upon the oil companies, who in turn would have brought pressure to bear upon Warner’s superiors. When this scenario was put to one of the leading diving contractors of that era, he was unable to suppress a smile: “We would have worked it that way, so none of us are totally innocent.”

While the DOE was reluctant to prosecute, Carson discovered that the agency was not alone in that feeling.¹⁶ Against the usual rhetoric about “safeguarding the public interest,” and prosecution being “a deterrent,” it turns out that Scottish authorities also ranked offshore crime far down on its list of illegalities. Among government records, from 1977 to 1980, Carson found 29 reported fatalities, 168 serious accidents, and 368 dangerous occurrences involving all aspects of offshore work, diving and non-diving alike.¹⁷ And yet, Carson was able to find only 13 cases where prosecutors had initiated criminal proceedings.¹⁸ These 13 cases (involving 23 companies or individuals) concluded with ten convictions, four not guilty, four deserted, and five dismissed as incompetent.¹⁹

Moreover, even when the accused were found guilty, the level of fines was so deplorably low that it made the conviction virtually meaningless. In the 1977 K. D. Marine case, for example, when divers Howard Spensley and Charles Meehan drowned, the company and the diving supervisor were fined £200 and £25 respectively after pleading guilty to one of the charges. In 1978, after Philip Baxter of Dundee fell 80 feet to his death through a badly fixed grating, Shell Oil was convicted of negligence and paid a fine of £200.²⁰ These fines were near the level of what might be imposed for a serious motoring offense in Scotland, such as driving while drunk or without insurance.

Besides illustrating the degree to which negligent acts were being punished, the magnitude of these fines reflects the prosecutor’s view of the seriousness of the crime and his judgment of the accused. In Scotland, he plays no part in recommending to the sheriff what sentence should be imposed upon a convicted offender. But he does affect the sentencing when he chooses what prosecutorial procedure to employ. With the exception of the Infabco trial, all the defendants in Carson’s study were prosecuted by the less time-consuming, less expensive procedure of Summary Complaint rather than by the more serious process of Indictment. This decision was not insignificant because Parliament had restricted the maximum penalty upon conviction by Summary Complaint to £400, whereas a company convicted on Indictment could have received a larger fine at the discretion of the sheriff. Thus, when the fiscal chooses summary procedure, he not only limits the sentencing options of the judge, he is also “in effect helping to define what constitutes serious crime,” as legal experts Moody and Tombs point out.²¹ And it’s clear from the record that during the 1970s, authorities did not view the types of infringement going on offshore as serious crime.

As for the accused, the likelihood of serving jail time was more a legal fiction than a reality. In 1979, when Richard and Skip died, the Crown was not indicting company directors for their managerial actions. According to Health and Safety expert Gareth Watkins, more than a decade would have to pass before Britons would hear of a managing director in the UK being found guilty of manslaughter.²² And it would not be until 1997 that a person working in the North Sea oil industry,^a would receive a prison term for committing a crime offshore.²³ Furthermore, had Infabco been convicted in 1980, it is unlikely that the court would have imposed an exemplary fine on Masterson’s company. More likely Infabco would have received a small fine as was the case when Sub Sea Offshore^b lost two divers in 1984.

On February 21, David Bowmar and Thomas Mackey died while performing a welding test in a hyperbaric chamber at Sub Sea’s base of operations on Greenwell Road in Aberdeen. The supervisor neglected to analyze one of the gas mixtures to the diving system, and in the course of the simulated dive, Bowmar and Mackey were fed, not air as was intended, but pure nitrogen. Sub Sea and the company that supplied the gas were subsequently prosecuted under Indictment, and after pleading guilty to the charges, paid £2,500 and £1,000 respectively for the dual fatality.²⁴

To officials at the Crown Office in Edinburgh, it was not the seriousness of the accident that determined the scale of the fine, it was the “degree of negligence.” In their view, oil companies pay a premium for all the bad publicity and lawsuits generated by the loss of life.²⁵ That attitude coincided with the Department of Energy’s. The year Richard and Skip died, it made this comment to the Burgoyne Committee regarding the current level of penalties:

Prosecutions are rare but where they have been undertaken, particularly in Scotland, it has been the adverse publicity which has hurt rather than the available penalties. It must be remembered that the fines which can be imposed can never themselves have much financial impact on a multi-million pound international oil company.²⁶

Indeed they cannot if the actions of the legislature and prosecutors prevent the courts from imposing adequate penalties. As for using adverse publicity to backstop abuse and neglect: given the fact that the oil industry operates as a closed society far out at sea, it seems unreasonable to rely upon press coverage to act as a substitute penalty system.

What was needed to stop the flow of preventable deaths was an independent oversight agency, with the will to beat the tom-toms and enforce the law. Had the Diving Inspectorate not been encumbered by conflicting interests, then it would have stopped the outbreak of scuba deaths in 1976, and it would have instituted reforms after Canopus and before Richard and Skip went on their fatal dive. But those actions did not occur because the DOE was unable to keep the priority of safety separate from the political goal of pushing forward the national oil policy.



a) A diving supervisor in the Bradley Westell case.
b) Formerly Sub Sea International.

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Endnotes:
1 The title of this chapter is taken from Discipline and Punish: The Birth of the Prison, Michel Foucault,p. 78.
2 Susan R. Moody and Jacqueline Tombs, Prosecution in the public interest, p. 89.
3 Susan R. Moody and Jacqueline Tombs, Prosecution in the public interest, p. 59.
4 W. G. Carson, The Other Price of Britain’s Oil, p. 231-232.
5 W. G. Carson, The Other Price of Britain’s Oil, p. 232.
6 W. G. Carson, The Other Price of Britain’s Oil, p. 7.
7 W. G. Carson, The Other Price of Britain’s Oil, p. 250.
8 W. G. Carson, The Other Price of Britain’s Oil, p. 266.
9 W. G. Carson, The Other Price of Britain’s Oil, p. 266-267.
10 W. G. Carson, The Other Price of Britain’s Oil, p. 266.
11 W. G. Carson, The Other Price of Britain’s Oil, p. 250.
12 W. G. Carson, The Other Price of Britain’s Oil, p. 266.
13 The Burgoyne Report, Offshore Safety, p. 61.
14 The Chronicle p. 1093.
15 Jackie Warner and Fred Park, Requiem for a Diver, p. 33.
16 W. G. Carson, The Other Price of Britain’s Oil, p. 248-249.
17 Brown Book, 1982, p. 60.
18 W. G. Carson, The Other Price of Britain’s Oil, p. 267.
19 W. G. Carson, The Other Price of Britain’s Oil, p. 267-268.
20 Glasgow Herald, June 24, 1981.
21 Susan R. Moody and Jacqueline Tombs, Prosecution in the public interest, p. 32, 82.
22 Gareth Watkins, The Health and Safety Handbook, p. 3.
23 Case No. T960640. Regina v. Kenneth Roberts, July 2, 1997.
24 Press and Journal, May 10, 1985.
25 Glasgow Herald, June 24, 1981.
26 The Burgoyne Report, Offshore Safety, p. 229.