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Posted By Clare Gabriel
The Crown Prosecution Service (CPS) has announced it is bringing the first ever charge under the Corporate Manslaughter and Corporate Homicide Act 2007.
On 23 April, the CPS authorised a charge of corporate manslaughter against Gloucestershire-based firm.
What is interesting is that as I think many of us suspected it is a small 'family owned' company being 'done'.
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Posted By Raymond Rapp
Clare
There is already a thread on the same subject. However, the responses have been rather sparse, which is a shame considering the importance of this development. Is this I wonder indicative of the forum, where 'tit bits' are preferred to a meaningful discussion.
I agree that it is disappointing but predictable that the CPS should choose to prosecute a small company when the CMA was conceived to ensure that large organisations are held accountable for their errors.
Ray
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Posted By Paul Leadbetter
We could just be waiting to hear the outcome as discussion of cases sub judice is often limited by the moderators.
Paul
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Posted By Raymond Rapp
Could be waiting for a long time then...the case may take a year or more to come to court!
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Posted By Rodger Alan Ker
Difficult to have a "meaningful discussion" from the limited information available.
From the CPS press release of last Thursday, the Director, Mr. Eaton will appear at Stroud Magistrates' Court on 17th June, to face two charges:
Gross negligent manslaughter and
Section 37 of HASAWA
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Posted By Dave Daniel See here for details of the case http://www.cps.gov.uk/news/press_releases/124_09/What intrigues me is that this man and his business are to face a manslaughter charge at a Magistrate's court. I'm surprised that such a serious offence has not been taken to a senior and more authoritative court as a matter of course. It will all depend on whether the accused chooses to plead guilty and hope for a small fine or spend money defending himself and his business.
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Posted By SNS
All cases begin in a magistrates court and depending on the seriousness are referred onwards.
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Posted By SteveD-M
From discussions I have been having with members of the law society although this was brought under the new legislation this could have been dealt with under the existing provisions.
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Posted By Raymond Rapp
Steve
Exactly the point I made in an earlier thread. A prosecution pursuant to HSWA would provide an unlimited fine in a Crown court, whereas under the CMA the fine is likely to be a maximum of 10 percent of turnover, which equates to £33,000.
I see no good reason why the CPS have chose to prosecute this particular company except to get an easy win and post a marker for future prosecutions.
Ray
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Posted By Robert K Lewis
As this company only has 4 employees according to the records than I presume it would have been just as easy, as another poster has pointed out, to have used gross negligence manslaughter. Maybe this was some bandstanding by the CPS to publicise the new legislation and claim a spun victory.
However one has also to wonder why they felt that the Director should not have faced prison in view of his clearly close decision making in all this. Perhaps it is a spin off of trying to be equal to all compaies of whaever size.
Bob
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Posted By Alan Nicholls
When the incident was shown on the news, it was evident that the trench or pit as it has been described; had not been supported in any way.
As a result it collapsed onto the guy carrying out the survey.
If the company he worked for is responsible for digging the trench, then the consequences are clear. If someone else dug it then there will be more people in the dock.
Regards Alan
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Posted By Robert K Lewis
I have just read one report that suggests that the charges are Gross Negligence Manslaughter on the individual, CM for the organisation plus the section 37 prosecution
Overkill? Or is it just covering all corners?
Bob
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Posted By Raymond Rapp
Bob
Overkill and covering all corners. The CMA allows for health and safety charges to be included in the indictment, hence s37 charge. Also, the organisation can be found guilty of h&s offences whether they are found guilty of corporate manslaughter or not. It's a bit like charging someone for murder and throwing in grievous bodily harm and common assault for good measure.
Ray
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Posted By MARK BARRETT
Is it just a small firm £333,000 turn over they have decided to "prosecute" as a test case so that they dont get involved with a case against a major firm that may costs £millions.
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Posted By Richard Altoft
Unfortunate slip in the choice of words by some people who I know are caring and considerate. Someone was killed at work, the law should have protected them and their employers or others involved should have protected them. They did not and someone died possibly as a failure to do what was required by law.
It now needs the courts to examine this case and decide on responsibility and culpability. I do not think the use of the toughest law possible is "overkill".
R
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Posted By John Richards
Quite right. At least the directors are alive. The "employee" is not. If only the HSE would decide to prosecute every workplace death as manslaughter. We may even get a system where the employer develops a conscience (sorry: Bad comment)
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Posted By H Baker
I really can't believe some of the comments on here! The consensus seems to be - Shame on the CPS for actually using some of the powers that are avilable to them.
The charges brought against all involved (if the above post is correct) are all for different things. As manslaughter is the higher charge, the CPS have a duty to bring charges under that first. They could use many different charges - it's their job to bring the charges that they feel can be supported by the evidence.
Just taking the different charges against each party as an example - manslaughter (corporate or individual) is for the death of the individual and the deficiencies that led to it. HSW charges are for breaches of H&S law where the death is an aggravating factor. It is doubtful that if the higher charge is successful that the HSW charge would be used. You may not think that to be fair but the courts do. If there were any duplicity in the charges at all, the defence would jump on it straight away.
Although HSW has unlimited fine the courts take into account the company's turnover etc so it is unlikely they would receive a higher fine under HSW.
And the last post - HSE do not bring manslaughter charges.
The evidence required for CM is roughly the same as HSW section 2 so I am surprised that more cases aren't being prosecuted BUT - it is the CPS' decision and theirs alone.
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Posted By Robert K Lewis
The evidential requirements for CM are a Gross Breach and not merely a breach. It is the Gross adjective that separates whether a breach of section 2 qualifies a prosecution under CM.
I am not personally criticising the CPS decision but am questioning whether the decision to go with CM is right in a situation where the mind of the director and the controlling mind of the company can be clearly seen. A director with 3/4 employees is likely to be making all the decisions I would have thought. Having said that however If they are able to establish GNM against the director then the original rules for Corporate Manslaughter will also be met. If the GNM fails then the CM will also fail. With a small company the two elements are closely linked.
Bob
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Posted By H Baker
Yes - that's right the "gross" part meaning was the breach of duty (and that duty being the same duty of care as HSW) so bad that it warrants a prosecution - the same four stage test as laid down in Rv Adomako. So - as I siad - the breach of HSW 2 is roughly the same evidence.
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Posted By Robert K Lewis
Gross means something far more severe than merely meriting prosecution. It is a matter of falling FAR below the expected standard not just a falling below.
We need to be very clear in our thinking over this. If we do not keep a focus then we will be confusing many people about when CM is available to the CPS.
Bob
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Posted By H Baker
Surely "we" don't need to be clear on our thinking? That's still CPS' job and their decision as to whether it is FAR below.
After being involved in many meetings with the CPS and discussing the four stage test, generally it is far below the standard if there is a fatality, there is a breach and the accident was preventable, i.e. the company's inaction/action or poor management systems contributed. If the company did all that it could and the accident was not forseeable then HSW charges would not stick either.
You don't get much further below the duty of care than having a fatality which was preventable.. which is what is being discussed.
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Posted By H Baker
"What is interesting is that as I think many of us suspected it is a small 'family owned' company being 'done'."
Isn't this just because small companies are more likely to have accidents rather than the insinuation that it is an easier target?
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Posted By Robert K Lewis
The outcome, ie a fatality, does not necessarily mean that there was a gross breach by senior managers within the company. This is the whole problem. Society believes that the company must have been grossly at fault if a death occurrs. This view is challegeable.
Fatality = Gross Management failure has to be proved in court and cannot be assumed. It is more than a failure of systems.
Bob
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Posted By H Baker
That's not what I said Bob. But you can have the last word anyway!
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Posted By Raymond Rapp
There are several tests that need to be proved within the ambit of the Act be for a conviction. These tests were designed to ensure large corporations did not escape the law as had occurred under the previous common law 'corporate manslaughter.'
Moreover, many observers have agreed the tests are easier to prove the smaller the organisation is. Hence there is a moral aspect as well as a legal one to consider.
No one is questioning whether a person or company should be held accountable for the failings. It is questionable, however, whether the CMA should be used in this particular case for the above and several other good reasons. If you prefer, a personal opinion - rightly or wrongly.
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Posted By Phil Rose
I have slightly lost the plot on this one. Surely the CPS know a little bit about what they are doing and it is reasonable to assume that they have examined the evidence and have decided that there is a case to answer. Haven't they? And isn't that what we as members of the public expect them to do?
I don't think that I agree that the 'double barrelled' action is overkill. Aren't 'double barrelled' actions quite common in both prosecutions and civil claims?
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Posted By Raymond Rapp
Phil
With respect, the criminal and civil law have serve two completely different functions. One is concerned with justice and the other redress for the victim.
In theory the CPS should be in a position to decide if a crime warrants prosecution and how best to use the laws at their disposal. They are however fallible as many cases and appeals will illustrate. Furthermore, they seem indifferent to moral aspects of the law and as we know, the moral high ground is a very moveable feast.
Ray
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Posted By Phil Rose
Raymond
With the greatest respect to you also, I am VERY well aware of the differences between civil and criminal law (been doing this job long enough!). I was merely trying to point out that double barreled actions are not uncommon and that they are frequently used in both (HSE) prosecutions and personal injury claims cases - which they are. It seems to me to be a perfectly reasonable and sensible course of action for the CPS to take, and similar actions have been taken in the past. The Barrow case was more than double barrelled, in that BOTH the Council AND an officer where prosecuted for BOTH CM,and H&S offences and GNM and H&S offences respectively. While the CM and the GNM both failed (for different reasons) both 'Barrow' and the officer were subsequently found guilty on H&S offences. Good job the CPS took the double barrelled approach.
Interestingly, I think some people would argue that the criminal system is not necessarily concerned with 'justice' (upholding the law - yes) and more so that it frequently doesn't deliver justice in the eyes of the 'victims'. It is also arguable that some people actually resort to the civil system in order to get some 'justice', where they feel that the criminal system has failed to do so.
I was interested in your comment "I see no good reason why the CPS have chose to prosecute this particular company except to get an easy win and post a marker for future prosecutions". Someone has been killed at work, I assume that they feel that the various 'tests' for a CM conviction are likely to be met. Isn't that reason enough?
Of course the CPS are fallible, that goes without saying, and as you say many cases serve to illustrate that. The fact that there is an appeal isn't in itself a measure of the fallibility or otherwise of the CPS. Some appeals are successful, some aren't and those that are, aren't necessarily attributable to the fallibility of the CPS.
I for one am assuming that the CPS know a lot more about the case than any of us on here! If I were a member of the family of the victim I would think that I would be satisfied that the CPS were taking the prosecution, double barrelled, triple barrelled or otherwise. .
Phil
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Posted By Raymond Rapp
Phil
It is clearly a matter of personal opinion. I disagreed with the CPS prosecuting ex Met commissioners Condon and Stevens for health and safety offences following the death of a police officer for which they were found not guilty. I also disagreed with the HSE prosecution of of the Met police following the de Menezes killing, even though they were convicted of h&s offences.
It follows that I have little faith in the authorities judgement when it comes to health and safety offences. I disagree with the CPS using the CMA in this particular case, particularly when there were other options open to them. Just my opinion and nothing to get excited about.
Ray
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Posted By H Baker
What is your reasoning Raymond?
What should they have done?
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Posted By Raymond Rapp
Presumably you are referring to the CM case? In which case I have made a number of observations and opinions in this thread. There is also the issue of charging an individual with gross negligent manslaughter and his company with corporate manslaughter. Which case gets tried first? Whatever, one or the other could have an unfair bias on the other.
As for a charge, I think it is quite clear this case was not designed for the CMA and a charge under s37 HSWA or an individual charge of gross negligent manslaughter, plus a charge under s3(1) HSWA seems to be perfectly reasonable to me.
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Posted By Raymond Rapp
Sorry, should have been 2(1) HSWA!
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Posted By Phil Rose
Raymond
I am still struggling with your reasoning. What cases are 'designed' (!) for CMA then?
Phil
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Posted By Raymond Rapp
Phil
I don't wish to draw this matter out forever...I have made my thoughts quite clear I believe.
For the record, the CMA was conceived to ensure LARGE corporations (MNEs) are held accountable for their failures in health and safety. The so-called tests were designed to ensure LARGE organisations did not escape justice. The sanctions in the Act are designed to ensure LARGE organisations are properly penalised.
Ray
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Posted By Phil Rose
Ray
I don't think that is quite right. I think that large orgs have always been held accountable for their failings for 'H&S' (there have been many significant fines for 'H&S' offences in large companies) just not for CM.
'For the record' CMA is intended to level the playing field and ensure that ALL orgs can be successfully prosecuted for CM, NOT just small ones (e.g. Lyme bay)as was the case in the past. CMA effectively removes the old test of the 'controlling mind' that was difficult to pinpoint in the large orgs which essentially prevented large orgs from being found liable in previous CM prosecutions.
CMA was not conceived for large orgs ONLY, is NOT intended for LARGE orgs ONLY, and as such the current approach to the prosecution, of which we have little detailed knowledge, seems entirely reasonable and in keeping with the purpose of CMA.
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Posted By Raymond Rapp
Phil, if you know all these things (some I would dispute) about the CMA why did keep pestering me?
If it was to make yourself look clever, then sadly I think you have failed.
Good day.
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Posted By Phil Rose
Ouch! I didn't realise I was pestering you! Nor do I suspect you realise you were patronising me ('with respect' and 'for the record') I thought this was a discussion board and I was (as other people have) 'challenged' your thoughts.
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