Pictured above: Berryman's Alan Millband, Partner and head of the firm's Business Defence Team

Last week, Cotswold Geotechnical Holdings became the first organisation to be convicted and sentenced for corporate manslaughter since the 2007 Corporate Manslaughter and Corporate Homicide Act came into force, marking a major landmark for UK businesses. 

Alan Millband a Partner and head of the Shakespeare Putsman/Berryman Business Defence Team said being the first to be convicted was: "a remarkable distinction for a small and in many ways unremarkable company."

He explained: "Although Cotswold's failings had been present for a long time before, really it all began on 5 September 2008. On that day one of the Company's employees, Alex Wright, was working in a trench on a development site. He was checking on the integrity of the surrounding soil. The trench collapsed and he was killed.

"The Company was indicted for corporate manslaughter following an extensive, joint investigation by Gloucestershire Police and the Health and Safety Executive. The Managing Director was also indicted for the offence of gross negligence manslaughter but the case against him was dropped after he became terminally ill.

"The Company pleaded not guilty to the charge but after a three-week trial at the Crown Court at Winchester the jury took only one and a half hours to return a guilty verdict, and on the 15 February 2011 Cotswold Geotechnical Holdings Ltd became the first company convicted of the offence of corporate manslaughter under the 2007 Act." 

At the trial, the jury heard evidence that the system of work was dangerous and that Cotswold had paid no attention to established industry guidance. Afterwards a Police spokesperson referred to the Company's 'cavalier attitude' to health and safety and that it used 'out-dated working methods'.

At the sentencing hearing on 17 February 2011 Mr Justice Field fined Cotswold £385,000 - a sum higher than its annual turnover. He commented the amount reflected both the gravity of the offence and the need to deter other companies from failing to adhere to health and safety law and guidance. The Judge recognised that this might put the Company into liquidation but that did not stop him. 

In order to secure the Company's conviction, the Prosecution had to prove that Alex Wright's death was directly linked to the way in which the Company's activities were managed and/or organised by its senior management; and that this amounted to a gross breach of the duty of care the Company owed to him. Clearly it had no difficulty in persuading the jury of these.

Alan Millband commented: "I believe the case has answered some elementary questions. Most notable is the question over whether the Courts will treat corporate manslaughter very much more gravely than a health and safety offence where death resulted. The answer to that is, quite clearly, 'yes', the fine being at least twice if not three times more. 

"The ruling also proves that Judges will not be reluctant to impose so high a fine as to put an organisation out of business.

"However, the case isn't the landmark health and safety lawyers had hoped for, leaving unanswered a number of other very significant questions unanswered. For example, in a larger organisation, which employees may rank as 'senior management', and what guidance is there to give health and safety lawyers and practitioners a better idea of where senior management may cross the line between a simple breach of duty of care and a 'gross' breach? 

"In the Cotswold case these issues were self-evident. We're going to have to wait for a larger organisation to be tried for the offence before we get any worthwhile answers."

Alan considers there to be another feature of the case that robs it of 'landmark' status: "The Judge commented that Cotswold's managing director was, in effect, 'the Company', which means Cotswold could have been indicted for corporate manslaughter under the law that was in place prior to the 2007 Act. 

"It is ironic that the new law, heralded as a means of bringing larger organisations to account for work-related deaths, has begun only where the previous and much-criticised law left off - in the conviction of a small player," he said.

"Although there will be other cases waiting in the wings, it may be a while yet before the unanswered questions get answered. However, no organisation can rest on its laurels until that happens, because today's failings may lead to tomorrow's prosecution."

The Business Defence Team is offering company and business clients a free diagnostic meeting, aimed at testing the client's susceptibility to the offence and advising on the measures needed to avoid it. For more information contact Alan Millband or Steve Robb, Tel: 0115 945 3700.

For more information about Berryman Solicitors, please visit their website: www.berryman.co.uk