Management teams in councils up and down the land will remember the discussions that took place a couple of years ago, on the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007. Whereas previously, proof was needed that a “directing mind” of an organisation was personally guilty of manslaughter, now an organisation would be guilty of an offence if its activities are managed in way that causes a person’s death and amounts to a gross breach of a relevant duty of care. By focusing more on senior management actions (rather than those who lead the business) the Act ultimately makes it easier to prosecute organisations.
In most councils, this led to reviews, and councils checked that they did have the right, adequate systems in place. However, recent events serve as a good reminder that such things need to be reviewed from time to time to make sure that those once adequate systems remain so, especially if the council has had a few changes; and underlines the importance of having a well-developed and integrated health and safety management culture in place.
There has now been the first prosecution under the 2007 Act. On 15 February 2011, a jury at Winchester Crown Court found Cotswold Geotechnical (Holdings) Ltd (a relatively small company) guilty of corporate manslaughter, and fined £385,000. The gravity of the fine was said to reflect the seriousness of the offence and will, ultimately, cause the company’s insolvency. Criminal fines cannot, of course, be covered by insurance, and as under the Act they are unlimited, could be extremely large if a sizeable organisation was involved. Indeed, the Sentencing Council last year indicated that fines should start at £500,000.
The facts were that in September 2008, a geologist was taking soil samples from the bottom of a 3.5 metre trial pit at a building site. The walls of the pit were not supported and the soil collapsed, burying the employee.
The prosecution’s case was that management systems had failed to take all reasonably practicable steps to protect the employee from its unsafe system of work. The company had ignored well-recognised industry guidance and had left the employee unsupervised on the site.
Whilst it is unlikely that there will be a sudden rush of similar cases, it will be interesting to see what happens if there is a case against a larger organisation when complex and lengthy debates will probably take place involving issues such as exactly what amounts to a “gross breach” and how to identify culpable senior management. There is no doubt however, that the Act was intended to give prosecutors the power to go “up the management tree” and that if the circumstances show that there were problems here, they will do so.
Just recently on 28 February 2011 it was also announced that there is enough evidence for a realistic prospect of a conviction against Warwickshire County Council for failing to protect the health and safety of their employees under s2(1) of the Health and Safety at Work etc Act 1974, following the deaths of four fire-fighters during a warehouse blaze in Warwickshire back in 2007. Three fire-service managers also face charges of manslaughter by gross negligence.
So, if you haven’t already done so, it might be wise to reconsider your systems especially if your council has made significant changes since the last time you carried out such a review.