The Crown Prosecution Service is bringing its first ever prosecution against a company under the Corporate Manslaughter and Corporate Homicide Act 2007, which entered into force last year, following the death of an employee in an accident. One of the company's directors is also being prosecuted.
Please click here to see our earlier Law-Now, which discussed the potential effect of the Act, with a particular focus on the potential liability of companies' management.
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Full Article
The Crown Prosecution Service is bringing its first ever prosecution against a company under the Corporate Manslaughter and Corporate Homicide Act 2007, which entered into force last year, following the death of an employee in an accident. One of the company's directors is also being prosecuted.
Please click here to see our earlier Law-Now, which discussed the potential effect of the Act, with a particular focus on the potential liability of companies' management.
The prosecution
The prosecution follows the death on 5 September 2008 of a junior geologist employed by a Gloucestershire-based geotechnical company, Geotechnical Holdings Limited. The employee was taking soil samples from inside a pit that had been excavated as part of a site survey. The sides of the pit collapsed, crushing him to death.
Following the accident, the Police and Health and Safety Executive investigated, and the matter was referred to the CPS to determine whether a prosecution should be brought. In recent weeks, the CPS decided that there were sufficient grounds to prosecute both:
- the company (under the Act and under health and safety legislation); and
- a director of the company (under the common law offence of gross negligence manslaughter and under health and safety legislation).
If found guilty under the charge of gross negligence manslaughter, the director faces a maximum sentence of life imprisonment.
To secure a conviction of manslaughter against the director under established common law, the CPS will have to prove that a reasonably prudent person would have foreseen serious and obvious risk of death, and that the individual's conduct fell so far below the standard of a reasonable prudent person as to amount to a criminal act or omission. As this is a criminal matter, the elements of the offence will need to be proven beyond reasonable doubt. This is a higher threshold than the usual 'balance of probabilities' test in civil proceedings.
Comment
The news of the first prosecution under the new Act, little over one year since it entered into force, is significant not only for companies but also for management.
Although management cannot be prosecuted under the new Act, they are likely to be the focus of attention in determining the adequacy of their organisation's health and safety procedures in the course of prosecutions. As further prosecutions are brought against companies under the Act, it is inevitable that the actions (or otherwise) of management will also be under closer scrutiny than ever before, which may lead to an increase in the number of prosecutions against management. In addition, with the coming into force of the Health and Safety Offences Act 2008 earlier this year, the courts have increased powers to impose both fines and imprisonment on individuals. This will make it more likely that the CPS will consider the potential liability of management as a matter of course alongside any health and safety breaches that are committed by the company.
It remains to be seen how the trend for corporate prosecutions develops across corporate Britain. The company being prosecuted in this instance is a small, family company where the directors are closely involved with the day-to-day running of the company. The case is unlikely to provide much guidance on how the new Act will be applied to larger corporations.
The message to directors and individuals with managerial responsibility remains: to ensure that health and safety risks are properly managed in the organisations that they run, and that adequate health and safety procedures are both established and, thereafter, maintained. Management may also wish to consider what insurance may be available to meet the costs of defending prosecutions of this nature. Creating a paper trail in the form of audit - and particularly legal compliance audit - will also be essential if the necessity arises to prove before a jury that existing health and safety regulations, codes of practice and guidance have been complied with. The potential consequences of failing to do so, as this case demonstrates, are severe.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 18/05/2009.
