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L E G A L U P D AT E
Corporate
Manslaughter
By Catherine Kay of George Davies Solicitors
Catherine Kay
F
or many construction organises its activities causes a types of duty of care which will safety guidance which relates to Next Steps Check whether your liability
companies there has persons death and this amounts be owed by an organisation the alleged breach, attitudes, To reduce the risk of insurance covers legal costs
been growing concern to a gross breach of a relevant under the law of negligence. It policies or systems in the prosecution under the new Act incurred under the new Act.
regarding the liabilities duty of care owed by the states clearly that a duty to organisation that may have you should consider the Consider whether internal
of both the company organisation to the deceased provide a safe system of work is encouraged a management following practical steps: training is required to ensure
and individual directors. Added employee. The police will owed to employees or other failure. Consider the joint guidance that all employees take
to this, The Corporate investigate suspected cases persons working for the The new Act clearly states issued by the Institute of responsibility for improving
Manslaughter and Corporate under the new Act and the organisation (this may include that if the management of an directors and Health and Safety health and safety.
Homicide Act 2007 (the new decision to prosecute will lie contractors, secondees and activity includes reasonable Executive (Leading health and For further information
Act), which came into force last with the Crown Prosecution even volunteers). It will be a safeguards and a death still safety at work: leadership please contact Nicky Collins
year on 6 April makes it easier to Service having regard to the question of law for the judge in occurs this will not result in a actions for directors and board at George Davies Solicitors
pursue successful prosecutions evidence gathered by the police. each case when establishing prosecution. members IND417) which is LLP recently commended
against large organisations in Senior management under whether the organisation owed a available on the HSE website in the Legal 500. Email:
the UK for corporate the Act is not limited to duty of care to a particular Penalties (www.hse.gov.uk) and ensure nickycollins@georgedavies.co.uk
manslaughter. The new Act is directors. Regional managers or person. Individuals cannot be that your health and safety or Tel: 0161 236 8992
not retrospective so deaths divisional managers of large Because the new offence is prosecuted under the new Act leadership complies.
which occurred before 6 April national organisations could based on the law of negligence so there is no penalty of Consider whether the Disclaimer
will be governed by the old law. constitute senior managers. The and not existing health and imprisonment. Instead the systems that you currently have The content of this article does
test in deciding whether safety legislation an punishment is focused on in place have been successful so not constitute legal advice. You
The old law somebody is a senior manager organisation could be financial disaster by the far. Can you make any should always consult a suitably
Under the previous law in order is to establish whether they play prosecuted under the new Act imposition of unlimited fines on improvements? qualified solicitor for
to bring a successful a significant role in the decision and under existing Health and the organisation if convicted. Develop an incident response professional advice about any
prosecution for corporate making relating to the safety legislation. Directors can still be plan to include details of how specific legal matter of concern
manslaughter it had to be management of the convicted of the common law any internal investigations will to you. George Davies Solicitors
shown that an individual at the organisation. What is a gross breach? offence of gross negligence be carried out following an LLP, its partners and staff do not
very top of the company, who The jury in any prosecution Section 1 of the new Act defines manslaughter or held incident and how you will best assume any responsibility for
could be said to embody the will look at the organisations gross breach as conduct which accountable under the existing preserve evidence. information contained within
company in his actions and senior management as a whole falls far below what can health and safety legislation. It may be worthwhile to carry this article and disclaim all
decisions (a “directing mind”) when deciding whether reasonably be expected of the The Health and Safety Executive out an independent health and liability relating to such
was personally guilty of adequate care was taken. Senior organisation in the guidelines state that individual safety audit. information.
manslaughter. A number of key management cannot avoid circumstances. It is for the jury directors will still be prosecuted
prosecutions failed due, in the prosecution by merely to decide in a prosecution where there is: “sufficient
main, to the complex delegating responsibility for whether there was a gross evidence and it is in the public
management structures of large health and safety as the new Act breach. In deciding this they will interest to do so”.
George Davies Solicitors LLP
companies, so often only places a great deal of emphasis consider: The courts can also impose a
George Davies was highly rated, in the North West, in the
prosecutions against smaller on leadership and management • Did the organisation fail to remedial order which requires
2008 Legal 500 review and in Chambers and Partners UK
companies with hands on of health and safety so they will comply with health and the organisation to take steps to
Directory. They specialise in all aspects of commercial
directors were successful. need to ensure that any safety law? remedy any management failure
law and boast a specialist niche Construction team with
delegation is to the appropriate • How serious was that that led to the death.
experience in a full spectrum of construction law
The new Act organisation and is carefully failure? From mid 2009 (following
services. The team was commended in the Legal 500 for
its breadth of expertise, efficiency, and ability to provide
The new Act provides that an managed. • How much of a risk of death publication of the sentencing
specialist advice. Chambers specifically mention its
organisation (which includes The duties owed under the did it pose? guidelines) the courts will also
achievements in Construction. Catherine Kay can be
companies, partnerships and new Act are not new duties; they The new Act goes on to be able to order a publicity order
contacted on 0161 234 8861 or emailed at:
anyone who has employees) is are existing duties owed under provide a list of suggested which requires a convicted catherinekay@georgedavies.co.uk.
guilty of an offence if the way the common law of negligence. factors that the jury may take organisation to publicise details
that its senior management The new Act defines certain into account e.g. health and of the conviction.
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Reader Reply No 12
12 BUILDING SERVICES & ENVIRONMENTAL ENGINEER JULY 2009
VISIT OUR WEBSITE: www.bsee.co.uk
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