On April 6th the Corporate Manslaughter and Corporate Homicide Act 2007, will have been in force for three years. During this period only one company (Cotswold Geotechnical Holdings Ltd) has been prosecuted and convicted, although an appeal is pending. Cotswold Geotechnical were fined £385,000 payable over ten years and is small one-man-band organisation, not dissimilar to previous organisations successfully prosecuted under the former common law corporate manslaughter. Moreover, the common law corporate manslaughter did allow for individuals to be prosecuted, unlike the CM&CHA, which only allows for company liability via an unlimited fine. Following the Tebay rail fatalities in 2004 Mark Connolly was sentenced to nine years jail, reduced to seven on appeal. The CM&CH took about 10 years from conception to Royal Assent. The CPS originally indicated that about five prosecutions per year would take place, given that only the most serious cases would be indicted. During the last three years approximately 500 people have lost their lives at work. I wonder whether the Act has been worth all the trouble and indeed, whether it is a worthy replacement for the now abolished common law corporate manslaughter offence?

Only time will tell whether a large organisation will be indicted. The Act was conceived to bring to account large organisations who were insulated by the 'corporate veil' via the 'controlling mind' qualification. The Cotswold Geotechnical prosecution was merely an opportunity to test run the new law. However, it was never going to be a real test as all the boxes had been ticked. Hence it gives no indication of how the Act will stand up against a large organisation and its corporate lawyers. Sadly it is still much easier to convict a small company than it is a large one.

Phil, "common law corporate manslaughter offence" is the correct term as far as I'm aware, albeit a derivative of gross negligence manslaughter through the common law process. It has now been abolished with the introduction of the CM&CHA, which of course is codified statute law. Yes, common law gross negligence manslaughter still applies but only to individuals and not corporations.

My condolences to any family and friends who may read this post. I am sorry to say that this evening the SE Today news programme said that a person had been arrested under the corporate manslaughter act after a trench collapsed killing a 24 year old. This happened in Whitstable and from what I heard the trench was going to a new housing estate. I am only repeating what I heard and cannot verify that the actual facts are correct. Regretfully it seems that the second case may be about to start the long trek through the courts. Take Care

Fletcher Thanks for the info, I have not heard about the trench collapse but I will Google it. Incidentally, HSWA prosecutions are not 'guilty until proved innocent' but via the doctrine of strict liability, which is also the case for most regulatory offences. Technically speaking the CM&CH applies the same strict liability principles ie no proof of intention (mens rea) is required for a conviction. Not wishing to start a debate on the virtues of strict liability...just pointing out the facts. It never ceases to amaze me how many indicted personnel are too 'unwell' to face criminal prosecutions - never mind the victim!

One of the potentially greatest difficulties of the Corporate Manslaughter and Corporate Homicide Act will be when an individual is charged with an offence and must wait possibly for 4-5 years until trial by jury. During this "waiting" time , notwithstanding the immense stress on the individual concerned his/her business could flounder and sink. When the trial eventually concludes the jury might return a Not Guilty verdict. How is that going to help (1) The victim(s) (2) The accused ? Another point - there does not appear to be an appeal mechanism in the Act. Jon

JohnM - just a point of clarification. An individual will not be/can not be charged under the CM&CH Act. It can only be used to charge companies. Of course senior managers may well be in the "hot seat" in that it may be their actions that amounted to the gross negligence that that is the basis of the charge against the company. And it may be that they have been charged with offences under the HaSaW Act or even with common law/gross negligence manslaughter. Ray, As regards an appeal - it is my understanding that any conviction can be challenged i.e. appealed. Whilst no expert I believe this can be done in two main ways: a) on the basis that the conviction was wrong - that there had been an error in law. For example the judge had "made a mistake", wrongly directed the jury, failed to properly take account of expert evidence etc. b) that the actual level of sentence was incorrect e.g. the fine was to large, the prison term too long. This would generally be on the basis that other similar convictions had not resulted in such a heavy fine or long prison term. Phil

Phil I missed your posting on clarification. I am aware as indeed you are that individuals cannot be charged with the "corporate" offence". A natural person can think and act and make decicions. The corporation has no mind so it cannot think. The natural person can be the mind and body of the corporation. If the doctrine of vicarious liability or respondeat superior there is no impediment to imputing the intent and act(s) of the natural person (the employee) to another natural person (the employer). There is a major hurdle to overcome and resolve before liabilty can be imposed on a legal entity - can the intent and act(s) of a natural person be imputed to an amorpheus entity? The larger players with their smart and expensive lawyers will continue to argue that element. The smaller outfits will not. Jon

One very good reason why one must never accept a Safety Director title or role. Jon

As there has only been one conviction under the CMCH Act and it seems likely to be a very difficult instrument to successfully prosecute with why was it necessary to change the law of corporate manslaughter which already existed?

Ray, I think your question is a valid one and I share your frustration, but I would point out that the legal machine generally turns very slowly and the CPS are will not be prepared (or allowed) to bring a corporate manslaughter prosecution that is going to fall at the first hurdle. Although there has only been one corporate manslaughter conviction (and I am informed, a second prosecution is in the offing), it is worth looking at the developments that have occurred around the CM&CHA in the last three years: • Increased awareness of health and safety at board and senior management level brought about by the threat of a corporate manslaughter conviction; • Increased fines for health and safety offences brought about by the Sentencing Guidelines Council guidelines to the courts on corporate manslaughter and health and safety offences causing deaths; • Increase in individuals given terms of imprisonment (actual or suspended) for health and safety breaches – 29 in the last 3 years compared with only 14 in the previous 30 years; and • Increased focus by the HSE (and now local authorities) on leadership and management of health and safety. I have no doubt that a large organisation will be successfully prosecuted for corporate manslaughter but I also accept that it will not be anytime soon, not least because there are a lot of aspects to the offence that still need to be clarified (probably in the courts). Unfortunately, each of these points requires the right case to be brought to enable the point to be effectively argued by both sides and a precedent set. My advice to all is live in hope but look at other (equally important) developments in the law, e.g. the HSE’s “Fee for Intervention” proposals. Regards. DJ

I find that introduction to be quite contradictory. The HASAWA provides (as it always has) potential to punish to the same degree unlimited fine, imprisonment, etc.) as Corp Manslaughter, it just can't be given such an emotive name? The publicity bit is new though.

Hello all Even if - God Forbid - that there is an incident that this legislation could apply to, I would suggest it is highly unlikely that it will be used. CPS do seem to be quietly assisting the Dept of Justice in their cost cutting programme, as from personal experience it appears to be getting harder to get them to agree to prosecuting ANY criminal offence, let alone something as complicated as Corporate Manslaughter.

Can I recommend that members look at the "quieter" developments in this area and in particular at the shift in the HSE's focus towards those that are required to "lead on health and safety". Recent police and enforcing authority actions and guidance to HSE inspectors would indicate that there will generally (if not always) be an individual sitting in the dock during a corporate manslaughter trial and that individuals are likely to be investigated (if not prosecuted) whenever a prosecution is being considered against a company. In addition, in a recent case (which I can't name as we act for the person concerned), the Court has been prepared to look behind the 'corporate veil' and find a director who was responsible for health and safety, liable to pay damages to an injured employee. Although this may not appear so at first glance, this appears to me to be pretty strong stuff. Regards. DJ