Cotswold Geotechnical Holdings has applied for permission to appeal against its conviction under the Corporate Manslaughter and Corporate Homicide Act and the £385,000 fine the judge imposed.
The application to appeal was made yesterday (14 March) and, given the significance of the case, a decision on whether it is granted permission is expected within the next few weeks.
The appeal application was revealed by Kevin Bridges, the solicitor who is representing both the company and its managing director, Peter Eaton, at the IOSH Conference in London today.
Presenting a session on the wider impact of the case – the first since the Act came into force nearly three years ago – Bridges reminded delegates that, under the legislation, the prosecution must prove that the way in which the relevant activities of the accused organisation were managed or organised caused a person’s death; that there was a gross breach of the relevant duty of care to the deceased; and that the role of senior management in the offence was a substantial element.
Describing the background to the incident on 5 September 2008, which resulted in the death of junior geologist Alex Wright when a trench pit collapsed on him, Bridges explained that Eaton left the trench site at the end of the working day, instructing Mr Wright to “finish up”.
However, unbeknown to Eaton, Mr Wright had decided, contrary to the company’s practices, to enter a pit 3.5m deep while unsupervised and nobody else was on the surface.
The prosecution argued that the routine failure by the company to prohibit entry into pits deeper than 1.2m and a failure of Eaton to enforce such a ban amounted to a gross breach of the duty of care. The prosecution said it was a gross breach because Eaton and the firm ignored its own health and safety policy, ignored relevant industry-specific guidance and British standards, and ignored previous HSE advice.
The failure to prohibit entry, said the prosecution, caused the death, and the company’s culture and system of work meant Mr Wright was likely to enter.
The defence admitted: the system of work was deficient in that there was a failure to provide specific training and conduct generic risk assessments and method statements for trial-pit work; and failing to ensure that its health and safety policy specifically related to trial-pit work.
However, said Bridges, none of the admitted failures related to the specific duty to ensure the safety of Mr Wright, as opposed to employees generally.
The defence argued that the industry guidance and British standards were not specific, and that the latter were not as prescriptive as the prosecution made out. It also said others in the industry adopted similar practices, and that Mr Wright’s entry into the pit that collapsed was contrary to company policies and was unforeseeable and unnecessary.
Summing up the impact of the case, Bridges said the case was not a landmark decision, and might have been successfully prosecuted under the old common-law offence of manslaughter by gross negligence.
Questions over the role of senior management and of what constitutes grossness remain open to interpretation, he said.
He went on to describe the case as completely unprecedented and out of proportion to the company’s size and turnover, and suggested that SMEs convicted of corporate manslaughter faced the prospect of being “wiped out”. He also warned that large companies convicted under the Act could expect fines in the millions of pounds.
As a final lesson, he warned that if companies have an incident they should ensure that any documents drafted in response to an internal accident investigation carry with them legal privilege. This will ensure that companies’ own findings are not used against them as part of the prosecution’s case.
Click on the video below to watch Kevin’s summary of the case:
This just shows what a useless piece of legislation this is. They should rename it the “Scapegoat” Act. Who decides whether a fine is “proportionate”? If a small business kills someone, they go out of business. If a corporation kills someone, they change their name & carry on. The legal profession are so obsessed with money they’ve forgotten what they’re really there for, to fight for Justice!
Justice Delayed is Justice Denied.
I think this is applicable Globally.