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 Draft guidance published in 2007, and now being revised, suggests fines of between 10 and 55% of a convicted company's turnover.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.