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The first of many?
August 2009
The first of many?
A Gloucestershire geotechnical firm, Cotswold Geotechnical Holdings Ltd (“the Company”), has become the first organisation to be charged with the new criminal offence of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 (“the Act”) in relation to the death of Alexander Wright on 5 September 2008.
Mr Wright, a junior geologist who was employed by the Company, was taking soil samples from inside a pit which had been excavated as part of a site survey when the sides of the pit collapsed, crushing him, and ultimately killing him.
The Prosecution should send a shiver down the spine of every Director, Partner and Senior officer, particularly because Peter Eaton, a Director of the Company, has also been charged with gross negligence manslaughter, which carries a maximum sentence of life imprisonment upon conviction.
Charges under the Health and Safety at Work etc Act 1974 (“the HSWA”) have also been brought, with Mr Eaton being charged under Section 37 (with penalties up to 2 years imprisonment and unlimited fines) and the Company being charged with failing to protect the health, safety and welfare of Mr Wright, contrary to Section 2(1) of the HSWA.
For the Company to be convicted of the offence of corporate manslaughter, the Prosecution will have to prove that the way in which its activities were managed or organised by its “senior management” constituted a “gross breach” of a “relevant duty of care” owed by it to the individual who has died and, as a result, was a substantial element of the cause of that person’s death. A breach of a duty of care is described as “gross” if the conduct of the organisation fell far below what could reasonably be expected of it in the circumstances.
Kate Leonard, reviewing officer for the Crown Prosecution Service’s Special Crime Division, has concluded that “there is sufficient evidence for a realistic prospect of conviction for this offence” in this case.
The maximum sentence for the Company upon conviction under the Act is an unlimited fine. This may be coupled with remedial and/or publicity orders. Remedial orders allow the Court to order that steps be taken to remedy the failures which are found to have caused or contributed to the death, whilst publicity orders require a convicted organisation to publicise details of the conviction along with specified particulars including the amount of any fine.
Mr Eaton appeared at Stroud Magistrates’ Court on 17 June 2009. This hearing was the first hearing where the charges were entered before the Court. Mr Eaton spoke only to give his name, address and occupation. No pleas were entered at this hearing.
Whilst this case is significant, as it is the first prosecution for corporate manslaughter brought under the Act, because of the relatively small size of the Company (the business had a turnover of £330,000 in 2008, according to documents filed with Companies House), it may be that the Company, prior to the implementation of the Act, would have been charged with gross negligence manslaughter in any event as there is an identifiable “controlling mind” in this case. The Act was introduced to try and gain traction on large and medium-sized organisations. The real test for the new legislation will therefore come when a substantial corporate body faces prosecution under the Act, and it will be at this point that the guidance upon the Act and the practical implication of what constitutes a management failure etc will become available.
This case is however a timely reminder that organisations that fail to keep their employees safe face prosecution on a grand scale and it is expected to be the first of many prosecutions brought under the Act. Since the Act came into force in April 2008, many other work-related fatalities are under investigation for corporate manslaughter. Commentators have speculated that the construction and engineering sectors may be particularly vulnerable, because of the significant number of workplace deaths that they account for each year.
In light of this prosecution, it has never been more important to ensure that organisations are aware of the scope of their health and safety obligations and what they must do to comply with them. Organisations should ensure that they are properly managing health and safety at all levels and that all applicable legislation and guidance is adhered to.
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