First prosecution brought under Corporate Manslaughter Act

The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect in April 2008 after a number of failed corporate prosecutions – including those relating to the Southall rail crash. There was much debate as to the implications and as to how widely it would be used. One year on the first prosecution is taking place. Most business people have heard about the Act, but many have not appreciated how wide the remit can be.

Potentially a prosecution under the Act can cover a vast range of circumstances and can occur many months after the event in question. It is targeted at making management take health and safety seriously and enabling prosecution where the management approach has permitted serious health and safety failings which have resulted in a fatality or fatalities. Penalties can include a fine, an order to take steps to remedy failings and a publicity order detailing failings and any remedial action ordered.

The first business to feel the teeth of the Act is a geotechnical firm – Cotswold Geotechnical Holdings. The prosecution relates to the death of an employee, Alexander Wright, a junior geologist, who was taking soil samples within a pit when it collapsed in on him in September 2008. The company has been charged with the criminal offence of corporate manslaughter under the Act and its director, Peter Eaton is being prosecuted individually – for the common law offence of gross negligence manslaughter. It was previously debated as to whether the Act would be used to pick up smaller businesses who do not properly manage health and safety as well as large organisations. Perhaps not surprisingly, the prosecution is against a business in the construction field and is in relation to an employee – this area being one of high risk and where the government and Health and Safety Executive are keen to identify and address high accident rates and safety issues.

Factors to consider under the Act:

· For there to be a prosecution there must have been a fatality. However that fatality need not have occurred straightaway as a result of the events in question – and these events need not be the only factor in the resulting death. It is sufficient for the failures of the business concerned to have contributed to the death.

· The Act applies to any corporate entity operating within the UK and to partnerships where there are employees.

· A prosecution will only take place if there has been a gross breach of the duty of care owed by the business to the victim. However the duty of care is not limited to employees but covers any visitors to premises, consumers of goods and services, and those affected by the commercial activities of the organisation. Potentially therefore the scope is extremely wide and a company may be unaware of those that have been affected, possibly until a prosecution is instigated.

· However the test is reasonableness – the way in which the business was managed or organised must fall far below what could reasonably have been expected.

· The Act focuses on senior management – but the definition is wide ranging, covering those making the decisions but also those effectively running the day to day activities.

· As shown by the recently announced prosecution, while the Act is aimed at companies, individual directors can still be prosecuted for common law manslaughter by gross negligence.

What can you do? The Act does not impose more onerous obligations on businesses. If business are operated in accordance with current health and safety legislation, they should have nothing to fear. However, where businesses are not up to date with legislation or not complying or considering its scope, then if a fatality or fatalities arise which can be linked to their activities, this is likely to prompt consideration of the possibility of prosecution. If significant failings are found, then a prosecution is likely. It is felt that the Act may well be used to highlight areas of health and safety that are often overlooked and to make examples of companies, as well as addressing cases of obvious relevance. It is also likely to be used to address companies where health and safety issues are not taken seriously on the ground and the operative culture fails to implement and enforce appropriate practices. It is not sufficient to have policies and procedures in place – they must be seen to be implemented and monitored and there will be a real focus on the culture.

Philippa Luscombe, a partner in the personal injury group at Penningtons Solicitors LLP which provides a full range of services for those making personal injury claims, comments: “Companies would be well advised to consider carefully their compliance and to seek advice – showing that health and safety is taken seriously will go a long way towards establishing a ‘reasonable’ approach and providing protection. One of the key things is to consider who would be defined as ‘senior management’ under the Act and therefore subject to scrutiny – it may be far wider than people think.”

Author: Tony Gibbs | May 27th, 2009

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Tony Gibbs
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