Corporate Manslaughter and Corporate Homicide Act 2007 The offence came into force on 6 April 2008 and

is called corporate manslaughter in England, Wales and Northern Ireland, and corporate homicide in Scotland. Are there any new duties or obligations under the Act? There are no new duties or obligations under the Act, nor is the new offence part of health and safety law. It is, however, specifically linked to existing health and safety requirements. Who will investigate and prosecute under the new offence? The police will investigate suspected cases of corporate manslaughter/homicide. Prosecution decisions will be made by the Crown Prosecution Service (England and Wales), the Crown Office and Procurator Fiscal Service (Scotland) and the Director of Public Prosecutions (Northern Ireland). What is the role of health and safety regulators like HSE, local authorities etc? As now, there will be a joint approach to work-related deaths between all the relevant regulatory authorities in line with the principles of the Work Related Deaths Protocol. Will directors, board members or other individuals be prosecuted? The offence is concerned with corporate liability and does not apply to directors or other individuals who have a senior role in the company or organisation. However, existing health and safety offences and gross negligence manslaughter will continue to apply to individuals. Prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so. What penalties will a company or organisation face? Penalties will include unlimited fines, remedial orders and publicity orders. A remedial order will require a company or organisation to take steps to remedy any management failure that led to a death. The court can also impose an order requiring the company or organisation to publicise that it has been convicted of the offence, giving the details, the amount of any fine imposed and the terms of any remedial order made. The publicity order provisions will not come into force until the Sentencing Guidelines Council has completed its work on the relevant guidance. USAGE Gloucester firm Geotechnical Holdings has become the first ever company to be convicted under new corporate manslaughter legislation. A jury at Winchester Crown Court found the firm guilty of failure to ensure the safety of 27-year-old geologist Alexander Wright from Cheltenham. Mr Wright died at a development site near Stroud when a trench collapsed on top of him in September 2008. The company will be sentenced on Thursday and could be fined a percentage of their turnover. It is the first prosecution under the new Corporate Manslaughter and Corporate Homicide Act. The firm denied the charge of corporate manslaughter. Company director Peter Eaton, 61, is seriously ill and was unable to appear in court. Charges against him as an individual were dropped last year due to his illness. It has been reported that Cotswold Geotechnical (Holdings) Ltd which, in February 2011, was found guilty of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 and fined 385,000 Views The Corporate Manslaughter Act enables prosecutors to go after senior managers straight up the management chain. Therefore we wont see what the act can really do until a company with a significant management chain is brought to trial."

The Corporate Manslaughter Act was enacted to address the difficulties of convicting larger organisations, so this case doesnt truly test its full scope. "But the case doesnt tell us much about how the Act will operate because the company and the controlling director were more or less the same thing. It will be far harder when you have a large company with a greater distance from the people at the top and those at the coalface who are responsible for the act that causes the death. Until we see a large company involved in a multiple fatality incident, were not going to see how the Act can cope with that kind of case. The Case The case against Cotswold followed the death of an employee in September 2008 while taking soil samples from the bottom of a 3.5 metre trial pit at a building site. The jury heard that the walls of the trial pit were not supported and soil collapsed into the trial pit, burying and asphyxiating the employee. The prosecution's case was that Cotswold's systems had failed to take all reasonably practicable steps to protect the employee from its unsafe system of work in digging trial pits that were unnecessarily dangerous. The company ignored well-recognised industry guidance that prohibited entry into excavations more than 1.2 metres deep and, at the time of the employee's death, Cotswold had left him unsupervised on site. To secure the conviction, the prosecution needed to demonstrate that: Cotswold's conduct caused the employee's death and amounted to a gross breach of a relevant duty of care owed to the employee (section 1(1)). A substantial element of the breach was in the way the organisation's senior management managed or organised its activities (section 1(3)). The successful prosecution of Cotswold demonstrates the importance for businesses to have a health and safety culture and to ensure that everyone takes responsibility for improving health and safety. Precursors: Zeebrugge ferry and Hatfield rail disasters. On 15 November 2007, the Sentencing Guidelines Council issued a consultative document[9] recommending a starting point of a fine of 5% of turnover for a first offence with a not guilty plea, rising to 10% of turnover.[10] The offence: An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised: causes a person's death; and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. An organisation is guilty of an offence... only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1). This offence is indictable only and on conviction the judge may impose an unlimited fine (s. 1(6)). Section 18 states that an individual cannot be indicted for aiding, abetting, counselling or procuring the commission of this offence. Elements of the Offence The following needs to be proved: The defendant is a qualifying organisation; The organisation causes a person's death; There was a relevant duty of care owed by the organisation to the deceased; There was a gross breach of that duty; and A substantial element of that breach was in the way those activities were managed or organised by senior management; and The defendant must not fall within one of the exemptions for prosecution under the Act. Therefore the Court will have to consider how the fatal activity was managed, or organised, throughout the organisation, including any systems and processes for managing safety and how these were

operated in practice. A substantial part of the failure within the organisation must have been at a senior level. IMPORTANT NOTE sections 2(1)(d) and 2(2) are not in force and are unlikely to be brought in for several years. Relevant H&S Law Section 2(1): 'It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health and safety at work of all his employees.' This includes the maintenance of plant, systems of work, training, supervision, access and egress so that the work environment is 'safe and without risks to health'. Section 3: Extends similar provisions for those other than employees who may be exposed to risks to their health and safety' as a result of the employers 'undertaking'. In evaluating the degree of risk, foreseeability is an issue as the phrase qualifies the word 'ensure' - see R v Hatton Traffic Management (2006) EWCA Crim 1156). It is a qualified duty so one does not refer to this or s. 40 as a 'defence'. Note that the employer retains responsibility for his 'undertaking' even if he sub-contracts it, subject to the reasonably practicable steps to ensure that the contractor does not expose non-employees to risk (R v Associated Octel Co Ltd (1996) 1 WLR 1543). It is not necessary that the public was in fact put in danger, simply that the possibility of danger existed and the defendants had not done all that was reasonably practicable to prevent it (R v Board of Trustees of the Science Museum (1993) 1 WLR 1171). Nor is it relevant that the defendant did not create the risk. In R v British Steel (1995) 1 WLR 1356 the defendant could not escape liability by showing that, at a senior level, it had taken steps to ensure safety if, at the operating level, all reasonably practicable steps had not been taken. Regulation 21 Management of Health and Safety Regulations 1999 states that it is no defence to claim that the breach was caused by an act or omission of an employee if it was reasonably practicable for the employer to have ensured safety. This confirms the decision in R v Nelson Group Services (Maintenance) Ltd (1999) 1 WLR 1527 that just because an employee has breached the Act this does not mean that the employer has also done so. 'Reasonably practicable' means that the risk of accident must be weighed up against the measures placed to eliminate the risk, including the costs involved. If the risk is small but the measures great he may be exonerated. (Austin Rover Group Ltd v HM Inspector of Factories (1990) 1AC 619). Section 4: Refers to the general duties of persons concerned with premises to persons other than employees access to entry and egress. Section 6: Sets out the general duties of manufacturers regarding safety of equipment including fairground equipment. Section 7: States that 'it shall be the duty of every employee while at work, to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions while at work'. This section does not create a free-standing duty of care. It describes the nature and standard of any common law duty that may exist which is to take reasonable care. A prosecution for gross negligence manslaughter on the basis of an omission can only be considered if the suspect's job required him to perform certain tasks (see R v Pittwood (1902) 19 TLR 37). It is also important to recognise the policy of the HSE (see below). They do not prosecute under this section unless there is real culpability in the employee's conduct of the employee. Thus they will not prosecute an individual where the employee's actions can be attributed to a systems error by the employer. Section 33: Makes the failure to discharge a duty under sections 2-7 an offence. Note that there is an extended summary time provision in section 34. Section 37: 'Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any

neglect on the part of any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he, as well as the body corporate shall be guilty of that offence...'. For the appropriate qualifying levels, see R v Boal (1992) 3 All ER 177. For the meaning of neglect in the context of s. 37 see R v P Ltd [2007] EWCA Crim 1937 (This is in terms the offence of permitting the corporate body to commit an offence. Note that this does not have an equivalent in the Corporate Manslaughter Act). This offence (which is used infrequently by the HSE) may be appropriate where individual gross negligence manslaughter cannot be proved but the director etc has a level of culpability that would, under the HSE Policy (see below) justify a prosecution. Thus if the directors etc know that essential safety equipment is required but have failed to provide it, the company will have committed an offence under s. 2 or s. 3 and the directors will be guilty under this section. Section 38: HSE inspectors, and the Environment Agency are authorised prosecutors - anyone else requires the consent of the DPP. Thus make a file note that you are giving the necessary consent under this section. For reasons of fairness and consistency, CPS Prosecutors considering offences under HSWA need to take account of and apply HSE enforcement policy. death was a result of a breach of the legislation; the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it; there has been reckless disregard of health and safety requirements; there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance; there has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a formal caution. New Legislation CD235 - HSE proposal for extending cost recovery This consultation sets out the HSE proposal to revise the Fees Regulations to reinstate existing fees and to extend the range of activities for which HSE recovers costs. Consultation began on 22 July 2011 and will end on 14 October 2011. CD236 Proposed Replacement for the Licensing Regime for Adventure Activities Established Under the Activity Centres (Young Persons Safety) Act 1995 in England. This Consultation Document sets out proposals for replacement arrangements for adventure activities following the planned abolition of the Adventure Activities Licensing Authority. Consultation began on 29 June 2011 and will end on 21 September 2011. CD233 - Proposed amendment to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) via Lord young Common Sense common Safety. This consultation sets out the amendment to regulation 3(2) of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) proposed by Lord Young in his report "Common Sense, Common Safety". If adopted, the period of incapacitation after which an injury to a person at work must be reported to the enforcing authority, will change from over three to over seven days. It seeks views on the proposal itself and on the impacts that it would have if it became law. The consultation began on 31 January 2011 and ended on 29 April 2011. There is an existing obligation on EU Member States to report injuries or illnesses resulting in three days off work under EU law, from the Eurostat Framework Regulation. Seven days bring reporting in line with Fitnote,but RIDDOR reporting will be extended from 10 days to 15 to accommodate. Consultations and discussions that ended during 2010 Consultation on the implementation of EU pesticides legislation This consultation is being carried out by the Chemicals Regulation Directorate of HSE on behalf of Defra. It concerns the approach to be taken in implementing a Directive on the Sustainable use of Pesticides (Directive 2009/128/EC) and two provisions in a Regulation on Plant Protection Product Authorisations (Regulation (EC) No 1107/2009) which may need to be

implemented by domestic legislation. It also seeks views on the case for developing new charging arrangements using powers in the European legislation on pesticides. Consultation began on 9 February 2010 and ended on 4 May 2010. CD231 - Proposals for amendment of the Genetically Modified Organisms (Contained Use) Regulations 2000 This Consultative Document sets out proposals from HSE to amend the Genetically Modified Organisms (Contained Use) Regulations 2000 (S.I. 2000 No. 2831). Consultation started on 31 March 2010 and ended on 31 May 2010. CD230 - Consultation on the Legislative Reform Order to amend the Health and Safety at Work etc. Act (1974) This consultation seeks comments on the proposed Legislative Reform Order that will allow HSE to make regulations for the protection of animal health under the Health and Safety at Work etc Act 1974. This will enable HSE to introduce a new Single Regulatory Framework to cover all contained use work (for example, in laboratories) with biological agents and genetically modified organisms, covering both human and animal pathogens. Consultation started on 1 February 2010 and ended on 28 March 2010. CD229 - A consultative document on revision of the Quarries Regulations 1999 Approved Code of Practice HSE seeks comments on the proposed revision of the Quarries Regulations 1999 Approved Code of Practice. Consultation started on 1 February 2010 and ended on 30 April 2010. CD228 A consultative document on the proposed amendments to the Pipeline Safety Regulations (PSR) 1996 and the Health and Safety (Fees) Regulations The 1996 PSR Regulations provide for the management of pipeline safety and apply to all pipelines in Great Britain and to all pipelines in UK territorial waters and on the UK Continental Shelf. The consultation began on 7 December 2009 and ended on 1 March 2010. CD227 - A consultative document on legislation to implement the Physical Agents (Artificial Optical Radiation) Directive 2006/25/EC The consultation seeks comments on the draft new regulations entitled Control of Artificial Optical Radiation at Work Regulations 2010. The consultation began on 9 November 2009 and ended on 5 February 2010. CD226 - Removal of the docks form HSE seeks comments on a proposal to remove the requirement in Regulation 8(2)(f) of the Docks Regulations 1988 for a certificate confirming the safety of a vessel used to transport a person at work in dock operations to or from any working place in docks premises (excluding such vessels as tugs and pilot boats). Consultation started on 12 October 2009 and ended on 22 January 2010.

Individuals jailed under the Gross Negligence Manslaughter Act not the CMCH 2007. The biggest change to the Act holds all employers accountable for the actions and decisions of their senior managers. A companys strategic approach to health and safety could also be investigated, as well as its arrangements for assessing risk, monitoring and auditing its processes. Investigations will not just look at formal systems for managing an activity, but how in practice it was carried out. This will include assessing the companys overall attitude to health and safety. The introduction of the new Act is an opportunity for employers to satisfy and prove that their systems and processes for managing health and safety are adequate and compliant. A senior manager is defined as someone who plays a significant role either in the making of decisions about how the organisation? activities are managed or in the actual management of those activities. s