FIRST CONVICTION UNDER THE CORPORATE MANSLAUGHTER AND CORPORATE MANSLAUGHTER AND CORPORATE HOMICIDE ACT 2007

The employer of a young geologist who died while excavating a site is the first company to be convicted under the Corporate Manslaughter and Corporate Homicide Act 2007.

The Act, which came into effect in April 2008, was designed to make it easier to bring corporations both large and small to justice in the event of a gross breach of a duty of care to the deceased. Under previous legislation, prosecutions were rare because of the requirement to identify a specific senior individual who could be held to be accountable. The larger the organisation, the less likely that this would be possible due to the level of proof required.

Under the provisions of the new Act an organisation may incur significant penalties if convicted of corporate manslaughter. In particular, these include:

• Financial penalties: the court can impose an unlimited fine.
• Damage to reputation: where appropriate, the court can force an organization to publicise the conviction.

In addition, while individuals cannot be convicted under the Act, a successful prosecution will be one which, among other things, shows that the way in which the company’s activities were managed or organized caused the person’s death and it is the senior managers and directors who will ultimately be held responsible for such management and organization.

In practical terms, to avoid such a scenario employers would have to show that they conducted an assessment of the particular dangers inherent in a specific situation and that they put in place actual measures designed to mitigate these risks. If the situation is considered high risk, such as a sports day for employees for example, then it would be a good idea either to not hold it at all or at least to identify any potential risks to the participants (and other relevant third parties such as spectators and staff at the venue) in writing (although acceptance of the risk by them will not absolve an organization from its responsibilities or prevent it from being prosecuted in the event of an accident). In addition, significant controls on the activity should be implemented on the actual day.

It should be noted especially that it is not sufficient to merely have liability insurance in place and if there is a successful criminal prosecution for corporate manslaughter, insurance cover will not be available to the company for any fine or costs order. If a defense is successful, cover may be available for any legal costs incurred. The precise basis depends on the policy, so companies should check the position with their insurers.

Ultimately, however, the Act requires employers to have coherent and reasonable health and safety policies and procedures in place and to conduct activities in accordance with the same. If this is done and an accident unfortunately does occur, it should be difficult to hold the organization responsible under the Act.

Jane Laidler

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