The trial date has now been set for the first prosecution under the Corporate Manslaughter Act. It is due to take place from 23 February 2010 in Bristol Crown Court and has been listed to run for six weeks. This trial is expected to give considerable guidance as to how the Act is going to be interpreted and used.
The Corporate Manslaughter Act came into effect in April 2008 after a number of failed corporate prosecutions – including those relating to the Southall rail crash and the difficulties in succeeding in such prosecutions. Much debate was had as to the implications and as to how widely and when it would be used.
The first prosecution under the Act was announced a year later in April 2009, against a geotechnical firm – Cotswold Geotechnical Holdings - in relation to the death of a 26 year old employee who was killed when the trench he was working in, collecting soil samples, collapsed. Company director Peter Eaton has been charged with gross negligence, manslaughter, and for a breach of Section 37 of the 1974 Health and Safety at Work Act.
Of particular interest will be the way in which the court approaches any sentencing at the end of the trial. Under the Act there is no upper limit on fines to be imposed and it was widely expected that the Act would be used to 'make an example' of companies with poor attitudes to health and safety. Much of the expectation of the Act was that it would focus on large corporate entities but Cotswold Geotechnical holdings is a small company. A large fine would probably be the end of the business. It will be interesting to see how the courts approach this. There is scope to make a 'publicity order' and it is anticipated that, if the prosecution is successful, this is the more likely route to be used by way of penalty.
One of the key features of the Act is looking at the responsibility of 'senior management' – the definition of which will be different for each company. It was hoped that further clarity would be given as to the scope of this definition but in this case, with a two director business, it is unlikely that this issue will be addressed.
Are you aware?
Some 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 straight away as a result of the events in question – and the events in question 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 applies 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. The duty of care, however, is not limited to employees but covers, amongst others, 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 is shown by the recently announced prosecution – whilst the Act is aimed at companies, individual directors can still be prosecuted for common law manslaughter by gross negligence.
What are the penalties?
If an organisation is successfully prosecuted under the Act, then the court has the following options available to use individually or in combination (although guidance is still awaited on the detail of these):
Fine - guidelines awaited
Remedial Order - requiring the organisation to take steps to remedy its failings within a specified time period and demonstrate the steps taken
Publicity Order - to name and shame the company and to publicise the steps that it is being required to take to prevent a further similar occurrence
What can you do?
The Act does not impose new or more onerous obligations on businesses. If businesses are operated in accordance with current health and safety legislation, then 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 more than one) arises which can, potentially in any way, be linked to their activities, this is likely to prompt consideration of the possibility of prosecution and, if significant failings are found, a prosecution is likely. It is felt that the Act may well be utilised 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 target companies where health and safety issues are not taken seriously on the ground and where 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.
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 you think.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.