[ Spotlight: Corporate manslaughter ]
executive or another senior director. The larger and more diffuse a company structure, the more difficult it was to attribute negligent acts to a single individual and, therefore, the organisation. It was for this reason that there were so few prosecutions; it was also a feature of those organisations that were successfully prosecuted that they tended to be small, where it was relatively straightforward for the prosecution to show that the director or executive in question was the ‘controlling mind’. Under the new law, the prosecution no longer needs to
identify the ‘controlling mind’. The legislation ensures that the prosecuting authorities will scrutinise the way in which an organisation’s activities are managed and organised by senior management. ‘Senior management’ means those persons who play significant roles in: n How the decisions about the whole or a substantial part of an organisation’s activities are managed or controlled; and
n The actual managing or organising of the whole or a substantial part of those activities.
In the legal case mentioned above, Mr Eaton was the sole
director and the ‘controlling mind’ of Cotswold Geotechnical Holdings Ltd. As such, the company would have been vulnerable to prosecution for corporate manslaughter under the old law. Therefore, the case is not an example of how the new Act makes prosecutions more likely to succeed. More practical guidance as to what or who constitute ‘senior managers’ will hopefully emerge once more prosecutions are brought and when, in particular, the regulatory authorities target larger organisations with more diffuse management structure. In large corporate entities, identifying a body of individuals
who constitute senior management may prove difficult. For example, an employee might be killed because of failings of senior managers at a particular site. If the site in question is one of many operated by the organisation, the persons concerned may not actually be responsible for the way in
The consequences of conviction Because the Act does not target individuals, imprisonment is not an option. The consequences of conviction are: n An unlimited fine; n A publicity order; and n A remedial order. Unlimited fines and remedial orders are not new initiatives
for convictions in the Crown Court; certain offences under the Health and Safety at Work Act can give rise to unlimited fines and remedial orders. In February 2010, the Sentencing Guidelines Council
published its definitive guidelines for sentencing in cases under the Act, and for other health and safety offences causing death. The guidelines state that the appropriate fine for an offence of corporate manslaughter will seldom be less than £500,000 and may be measured in terms of millions of pounds, depending upon the circumstances of the case. Although the Council resisted the temptation to link fines to a defendant’s turnover or net profit, its guidelines make it clear that the court will look carefully at a defendant’s resources and will also consider the financial consequences of a fine. So far as remedial orders are concerned, on conviction,
the court can require the organisation to remedy any relevant breaches, any matter that appears to the Court to have resulted from the breach and to have been the cause of death, and any health and safety deficiencies in the organisation. Publicity orders aim for maximum stigma, with the threat
of reputational damage. An order would require the convicted defendant to publish the fact that it has been convicted of the offence, the particulars of the offence, the level of any fine and the nature and terms of any remedial order imposed. The defendant could be required to make a public announcement via newspapers, television or radio or other specified means.
n This feature was written jointly by the Electrical Contractors’ Insurance Company (ECIC) and Berrymans Lace Mawer Solicitors (BLM).
May 2011 ECA Today 43
which the whole or a substantial part of the organisation is managed, and prosecution or conviction could be avoided. It is for the jury to decide, on a case by case basis, if a gross
The penalties are high, and all electrical contractors must ensure corners are not cut just to meet business pressures
breach of duty has been committed. In considering whether there has been a gross breach, the jury must consider if there has been a failure to comply with health and safety legislation and, if so, the magnitude of the failure and how much of a risk of death was posed. Other factors for the jury will range from the systems of work used by employees, the question of supervision, the existence and/or adequacy of risk assessments and the auditing of processes. As an example, if it can be demonstrated that a company has encouraged or sanctioned unsafe practices because it has put business interests before safety, there will be a greater likelihood of the jury concluding a gross breach. It is also clear that corporate manslaughter legislation will
encourage investigators to focus upon the culture within an organisation. Those with adverse safety cultures should take urgent steps to reverse negative trends, and relevant risk management strategies should be driven by senior management.
SHUTTERSTOCK
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