I have just read the Sentencing Remarks in the case of R v Lion Steel Equipment Ltd and it is incredibly complicated due to the fact that the accident occurred only a few weeks after the Act came into force. For anyone that has an interest in this topic, I would pose one question - Given that the judge did NOT give a Remedial Order, NOR a Publicity Order and the company ended up with a fine - WHY did the CPS decide to prosecute for Corporate Manslaughter and not just for a breach of the Health and Safety at Work etc Act 1974? Answers in a Master's dissertation please .......................

And the judge also said that he had to strike a balance between punishing the company and endangering the jobs of 142 employees. Their average profits for the previous 3 years ranged between £370k and £180k, so a fine of £480k, I think, is not unsubstantial. Added to that will be a major Civils claim, more legal fees and increased insurance premiums. I suspect that the company will be more vigilant regarding health and safety in the future. PH2

The Lion Steel case is a bit of an oddity all round. First, it was (wrongly) presumed that a prosecution for CM would not proceed until a fatality occurred for at least a year after the Act came into force. Originally three directors were prosecuted for common law gross negligent manslaughter, following an acquittal of one of them, a deal was brokered with the CPS to drop the remaining charges and to continue with a prosecution for CM. The publicity and remedial orders should be sought by the prosecution after consultation with the regulator. However, the remedial order is not likely to be pursued because in the time taken to reach court it is most likely that remedial measures have already been implemented. I cannot say for sure why a publicity order was not imposed, but my best guess is that it would have made little impact on a relatively small organisation such as Lion Steel. Finally, I suspect one of the main reasons in prosecuting Lion Steel for CM, as opposed for HSAW offences, is that there is a degree of tactics involved with the CMA. Being a relatively new and untried Act the CPS are being selective in who they prosecute, or so it appears. The various tests in the Act required to gain a conviction is much easier to with a SME, hence the CPS are likely to up the ante in the future for a conviction of much larger organisation.

I don’t think the act is complicated: it might be a bit vague but then it is not dealing with absolutes. This issue is not like speeding; I don’t see how a law could be passed that would catch people ‘bang to rights’. The reason the act was brought in was to make prosecutions easier. It is much simpler to prove that an organisation’s actions or inactions ‘Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased; — and the way in which its activities are managed or organised by its senior management is a substantial element in the breach’, than to prove that a controlling mind was culpable. The option of prosecuting individuals still exists but for that to occur there has to be enough evidence, which can be tricky. There have never been that many manslaughter cases relating to H&S matters, a couple of dozen, since time began. I think once this law has settled in it will be effective. Remember the point of this law is not to catch people to encourage managers and organisations to take their responsibilities more seriously. The test will not be the number of prosecutions but the number of lives saved. Reading some of the responses to this question I sometimes get the impression that what some people would like it if whenever someone dies at work the whole management gets the chop. Is that what we want?

The fact is we do not really know how complex the Act will be until it is fully tested with a prosecution against a large organisation, although some lawyers have described the Act as a 'lawyers charter'. Thus far the three prosecutions have not been any real test for the CMA. The difficulty will come where an organisation has many tiers of management; the senior management test will undoubtedly become embroiled with arguments about who is and who is not a senior manager. In effect, the senior management test is an 'aggregated' mens rea test, which was the nemesis of the common law CM. Then there is the 'factors for the jury' to consider. I suspect section 8(2) is likely to be the most contentious, although it could turn out to be a fait accompli because by definition a fatality must surely involve a breach of health and safety legislation. The difficulty for the jury will also include considering 'the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure as is mentioned in subsection (2), or to have produced tolerance of it'. In effect, the jury will be asked to consider the safety culture of the organisation in relation to the breach - watch this space!