Food Safety News – March 2011
First Prosecution under the Corporate Manslaughter and Corporate Homicide Act 2007
A Gloucestershire firm was fined £385,000 in February 2011 for Corporate Manslaughter. Gloucestershire based Cotswold Geotechnical Holdings Ltd has become the first company to be convicted of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007. The company was found guilty following a three week jury trial at Winchester Crown Court.
The prosecution followed the death of a 27 year old employee in September 2008. The victim, a geologist, had been taking soil samples in a 3.8m trench at a development site in Stroud. He was killed when the unsupported walls of the trial pit collapsed around him.
The court found that the company had failed to take all reasonably practical steps to protect their employees. In particular, they found that the company's systems were unnecessarily dangerous: it ignored long standing guidance about the maximum depth for unsupported trial pits and left the employee unsupervised. A former employee had raised concerns over the company's approach to trial pitting back in 2005, but the company failed to follow advice provided at the time by the HSE.
What is The Corporate Manslaughter and Corporate Homicide Act 2007?
Despite coming into force on 6 April 2008, this is the first case to be considered by the courts. An organisation is guilty of an offence under the Act if the way in which its activities are managed or organised cause a person's death and amounts to a gross breach of a duty of care to that person.
The Corporate Manslaughter and Corporate Homicide Act 2007 creates a means of accountability for deaths caused by very serious management failings.
Why was it brought in?
Prior to the act coming into force, it was possible for a corporate entity, such as a company, to be prosecuted for a wide range of criminal offences, including the common law offence of gross negligence manslaughter. However, in order for the company to be guilty of the offence, it was also necessary for a senior individual who could be said to embody the company (also known as a 'controlling mind') to be guilty of the offence.
The new law is wider, meaning a company can be convicted if it can be proven that there was a gross breach of duty of care by "senior management," instead of just one individual. It is essential for a conviction under the Act to prove that a substantial element of the breach lies with senior management. On conviction, companies face an unlimited fine, as well as publicity and remedial orders.
The future
The Cotswold case sheds little light on exactly how the court will interpret 'senior management' given the Courts finding that Mr Eaton was essentially the embodiment of the Company. It is likely that a prosecution would have been successful under the previous approach
The successful prosecution of Cotswold demonstrates the importance for all companies to ensure compliance with all health and safety legislation. Undoubtedly other prosecutions will follow and no company can afford to risk a conviction.
The Corporate Manslaughter and Corporate Homicide Act 2007 has many critics and the amount of time taken for the first conviction may reflect difficulties in establishing a gross breach of a duty of care by the senior management to employees or persons affected by the work activity.
However, the Health & Safety at Work etc Act 1974 does allow for prosecutions which can include unlimited fines, and imprisonment as can be seen by the cases already discussed above without the need to rely on The Corporate Manslaughter and Corporate Homicide Act 2007.
Essentially, businesses particularly those that have senior positions within an organisation should be ensuring that health & safety compliance is taken seriously to avoid being the next prosecution.
History of Corporate Manslaughter
Companies have been open to manslaughter proceedings since 1965. Below are examples of corporate manslaughter cases brought to trial before The Corporate Manslaughter and Corporate Homicide Act 2007 became law on 6 April 2008.
Lyme Bay tragedy
The only successful prosecution of a corporation for manslaughter through gross negligence involved a company owned by one man. Peter Kite, owner of OLL Limited, was jailed for three years, and his company fined £60,000 following the 1993 Lyme Bay canoeing tragedy in which four teenagers died.
The judge said Kite was more interested ''in sales than in safety''. He added: ''The parents and the teachers trusted you . . . and you betrayed that trust.''
Herald of Free Enterprise
One of the most famous corporate manslaughter cases came to trial during the late 1980s, when the Herald of Free Enterprise - a Townsend Thoresen car ferry owned by European Ferries capsized in 1987 off the Belgian coast. A total of 193 lives were lost after the bow doors of the ferry failed to close and the car deck was flooded.
An inquest jury returned verdicts of unlawful killing in 187 cases. However, the corporate manslaughter case failed because the various acts of negligence could not be attributed to any individual who was a "controlling mind". Hence the political pressure to hold senior management of large companies responsible for failings to comply with health & safety regulations.
Clapham rail disaster
Britain's worst rail disaster claimed 35 lives after three trains collided on December 12, 1988. The British Rail Board admitted liability for the accident, which was attributed to careless work by signal engineers. As the board was responsible under the "vicarious liability" principle, it paid compensation reaching £1m in some cases, though no-one was prosecuted for manslaughter.
Transco
In 2003, the Appeal Court in Edinburgh rejected a charge of "culpable homicide" (the Scottish equivalent of the law in England, now known as "corporate homicide") against the gas pipeline firm Transco after the death of a family of four in Larkhall in 1999.
Separate charges were brought under Sections 3 and 33 of the Health and Safety at Work Act 1974, and the company was fined a record £15m.
Hatfield disaster
In 2005, executives of Network Rail and maintenance company Balfour Beatty were cleared of individual charges over the October 2000 Hatfield rail crash, which claimed four lives.
However, after an eight-month Old Bailey trial in 2005, Balfour Beatty was fined £10m for breaching health and safety regulations (later reduced to £7.5m). Network Rail, which took over from Railtrack in 2002, was fined £3.5m.
Independent traders
It is not only large companies that can be prosecuted but also small independent tradesman. A roofer was jailed for gross negligence manslaughter in carbon monoxide poisoning case following poor workmanship and a failure to carry out even the most basic safety checks.
Mr Johnson, who was sentenced on the 21st May 2008 to three-and-a-half years in prison for the gross negligence manslaughter of Mr Schenker in March 2006.
Mr Johnson, who was trading as Merlin Building and Roofing Contractors, was employed to demolish and rebuild a chimney stack and flashing. The day after the chimney was rebuilt Mr Schenker was found dead from carbon monoxide poisoning. The investigation revealed that the flue had become virtually completely blocked with debris and mortar from the work activity of Mr Johnson.
As the boiler was switched on, high levels of the carbon monoxide gas were produced, fatal levels were produced in two minutes after being switched on, and that it took just seven minutes for the carbon monoxide to reach the upstairs bedroom, where Mr Schenker was sleeping.
In addition to the manslaughter charge, Mr Johnson was also accused of breaching s3(2) of the HSWA 1974, for failing, as a self-employed person, to ensure that the health and safety of non-employees were not affected by his activities.
Our Health & Safety Consultancy services and Legal support can help you reduce the risk of prosecution and support you through ant issues that do arise.
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