News
Health and Safety Update (June 2009)
First case of Corporate Manslaughter due in Court
The Crown Prosecution Service (CPS) has authorised the first
ever charge under the Corporate Manslaughter and Corporate Homicide
Act 2007 against a Gloucestershire based Company over the death of
a 27-year-old employee.
The employee, a junior geologist, was killed in September 2008
when the sides of the pit in which he'd been collecting soil
samples collapsed and crushed him under several tonnes of mud. The
pit had been excavated as part of a survey at a site in Stroud. The
man was declared dead at the scene but emergency services were
unable to recover his body for two days.
As well as corporate manslaughter, the Company has been charged
with breaching Section 2(1) of the Health and Safety at Work Act
(HSW Act) for failing to protect the employee.
The Company Director has been charged with gross negligence
manslaughter and with breaching Section 37 of the Health and Safety
at Work Act. This states that where a company's offence is
committed with the consent, or due to the connivance or neglect of
a director, the director will also be guilty of that offence.
Under the Corporate Manslaughter and Corporate Homicide Act 2007
an organisation is guilty of corporate manslaughter if the way in
which its activities are managed or organised causes a death and
amounts to a gross breach of a duty of care to the person who died.
A substantial part of the breach must have been in the way
activities were organised by senior management.
Though this is the first charge brought under the new law,
experts suggest it may not be the best test of how it will work in
practice.
David Bergman, director of the Centre for Corporate
Accountability which campaigned for the new Act, stated that the
purpose of the new offence is to try large and medium sized
companies. He pointed out to the Financial Times that the accused
Company only recorded turnover of £330,000 in 2008.
It appears unlikely that this case will give any guidance on new
elements of the Act such as senior management and management
failure due to its small size. However, one aspect of the case that
will stimulate interest, if the corporate killing charge succeeds
will be how the judge sets the penalty. The offence carries the
potential for an unlimited fine, but the Sentencing Guidelines
Council is not expected to produce guidance for judges before the
end of the year. Draft guidance published in 2007, and now being
revised, suggests fines of between 10 and 55% of a convicted
company's turnover.
The Director will appear before Stroud magistrates on 17 June to
face charges as an individual and on the company's behalf.