The first trial under the Corporate Manslaughter and Corporate Homicide Act 2007 has been subject to delay, certain charges have been dropped and there are now doubts as to whether the trial will continue.

On 23 April 2009 the Crown Prosecution Service in England and Wales authorised a charge of corporate manslaughter against Cotswold Geotechnical Holdings Ltd ("CGH Ltd").

CHG trial – the facts

On 5 September 2008 Mr Wright, employed as a junior geologist by CGH Ltd, was taking soil samples from inside a trench which had been excavated as part of a site survey when the sides collapsed, crushing and killing him. Mr Wright was declared dead at the scene. Rescue workers took more than two days to recover his body from beneath several tonnes of mud.

The trial was adjourned in February this year to allow Mr Eaton (the sole director of CGH Ltd) to receive urgent medical treatment. Hearing of the case resumed briefly in October when Mr Eaton's solicitors argued successfully for charges brought against Mr Eaton under the Heath and Safety at Work Act 1984 to be permanently stayed owing to his ill health. The case stands further adjourned to January 2011. Meanwhile, application has been made by Mr Eaton's solicitors calling for the remaining charges, to include those brought against the company under the Act, to be dropped: there is doubt as to whether Mr Eaton is fit to give evidence and, if he cannot, whether the company can be tried. That application is expected to be heard in December.

Comment

There is a growing trend in society towards criminal prosecutions following transport disasters (be at those occurring on the railway system, at sea or on aircraft) and/or deaths in the workplace. In the aviation context the most obvious potential defendants to charges following an air disaster include front line operators such as pilots and air traffic controllers. However, with the advent of the Act (which came into force on 8 April 2008) increasingly the focus of prosecution in this jurisdiction is likely to be those on the corporate ladder from within aircraft product manufacturers, airport operators and air traffic agencies.

The first prosecution under the Act was expected to offer some much needed guidance. If the CHG case does continue it is unlikely to provide much by way of meaningful assistance as to the interpretation and application of
the Act:

  • One of the vexing questions under the Act is who, within a company, falls within the definition of "senior management" (an organisation is guilty of the offence of corporate manslaughter if the way in which its activities are managed or organised by its senior management is a substantial element in the death of an employee). In the CHG case, Mr Eaton was the sole director of the company.
  • Under the Act an organisation guilty of the offence is potentially liable to unlimited fines. Definitive guidelines were issued by the Sentencing Guidelines Council ("SGC") only in February this year. The SGC's guidance is that fines "may be millions of pounds and should seldom be below £500,000". If a conviction under the Act is secured it is unlikely to result in significant financial penalty against CHG Holdings which is essentially a shell company.

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