The Corporate Manslaughter and Homicide Act 2007 came into force on 6 April 2008. This Act makes it an offence for an organisation to manage or organise its activities in such a way as to cause a person’s death, where such management or organisation amounts to a gross breach of a duty of care. An organisation will, however, only be found guilty if the way in which its activities are managed or organised by its ‘senior management’ is a substantial element in the breach of duty.
The first case to be prosecuted under section 1 of the Act has been postponed a number of times and the trial will not now be take place until 24 January 2011.
Cotswold Geotechnical Holdings and its director, Peter Eaton, were initially charged with corporate manslaughter and gross negligence manslaughter respectively following the death of Alex Wright in September 2008. Mr Wright, who had been employed by the company for a number of years as a junior geologist, was taking soil samples from inside a pit that had been excavated as part of a site survey near Stroud in Gloucestershire. During this exercise the sides of the pit collapsed, burying Wright in soil. By the time that a rescue team had managed to reach him, he had suffered fatal crushing injuries.
The trial was initially listed for February 2010 but has since been pushed back on a number of occasions due to concerns regarding Peter Eaton’s health, with a judge commenting that it would be "unfair and oppressive" for him to participate in a trial at the same time as he required medical treatment. However, one can understand that the presiding court will be keen to avoid any further delays, given that the matter will have been delayed by nearly a year come January 2011. This is especially so given that it is likely a number of further prosecutions under the 2007 Act are awaiting the outcome of this first trial before proceeding.
If the company is found guilty of the charges against it then it could face an unlimited fine. In guidance finalised earlier this year, the Sentencing Guidelines Council recommended that the appropriate fine following conviction for corporate manslaughter will seldom be less than £500,000 and may even amount to millions of pounds. There is, however, a lack of certainty over the level of fines, other than the broad certainty that figures of £500,000 or more will be contemplated initially. How this will be applied to a relatively small company like Cotswold Geotechnical Holdings, which will be unable to pay a fine of £500,000, is yet to be determined.
In a hearing earlier this month, the charge of gross negligence manslaughter against Eaton has been dropped, due to continuing concerns regarding his health. While this allegation has been abandoned, he still faces a charge under the Health and Safety at Work Act 1974 in his personal capacity as director of the company, for which he could still face imprisonment if found guilty.
It is hoped that when the trial finally does go ahead it will clarify the extent and scope of the 2007 Act and, in particular, the practical interpretation of section 1 of the Act. It will be interesting to see what factors the court will take into account when deciding whether an organisation’s activities were managed in such a manner as to be causative of a person’s death. As mentioned above, it is possible that a number of future prosecutions under the Act in relation to currently ongoing investigations are waiting to see how the court applies the relevant parts of the statute.
However, given the limited size of Cotswold Geotechnical Holdings – it is not a multi-national corporation – one has to question the utility of this case in shedding light on what in the future is to be regarded as ‘senior management’. In this case there is unlikely to be any detailed consideration of who constitutes the senior management of Cotswold Geotechnical Holdings since it has only one director. If this question is not determined, then the precise scope of the Act will remain as uncertain as it is now, as people will not know to what tier of ‘senior management’ liability will attach. One can only hope that when this matter is finally heard, the court goes beyond merely deciding the facts of this case and issues dicta that are of general application.
Bill Dunkerley is a safety, health and environment lawyer at national law firm Berrymans Lace Mawer
