Act now or face risk of prosecution
Opinion - Gary Killeen
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Informed opinion suggests that the first company to be prosecuted under the Corporate Manslaughter and Corporate Homicide Act maybe appearing in court in the not too distant future. Therefore, says Gary Killeen, commercial director, GE Capital Solutions, Fleet Services, businesses need to face up to the law...
Gary Killeen, commercial director, GE Capital Solutions, Fleet Services
If you’re involved with running a fleet of vehicles, do you need to worry about the Corporate Manslaughter Act and Corporate Homicide 2007? The answer is yes. The signs are that the police and the Crown Prosecution Service – both parties that are keen to find out how the Act will work in reality – are examining the area of fleet health and safety very closely.
Why? Because according to a recent presentation given on behalf of GE Capital Solutions Fleet Services by leading corporate manslaughter barrister Gerard Forlin, it will inevitably be much faster, easier and cheaper under the new Act to bring prosecutions based on accidents that occur affecting company cars or vans than, for example, trying to prosecute an oil company or an aviation company for a large scale failure.
In effect, armed with the new Act, prosecutors will be looking to test its key elements and an incident involving a fleet where there are clear failures of duty of care could prove an attractive route for them to follow.
Employers therefore need to be aware that the fleet is an area of vulnerability and ensure that they are following health and safety guidance covering vehicles and their use for business purposes as closely as possible.
While the implications of the new Act will only become completely clear as judges apply it over the next few years, it should now become much, much easier to bring successful corporate manslaughter prosecutions than previously.
In the past, it has been extremely difficult to pierce the corporate veil and successfully convict an organisation. Prosecutions of this type have been rare and there have been notable failures.
Perhaps the single biggest change between the old and the new legislation is that there is no need to find a controlling or directing mind within an organisation such as a company that is guilty of manslaughter.
What this means in practice is that the new law allows a systemic failure to be presented in court as indicative of a company’s attitude towards health and safety in the event of a prosecution. Juries will be able to review the corporate safety culture and, if it appears lax, take that fact into account.
This is perhaps where those who manage fleets need to ensure that they are fully compliant with health and safety thinking. Managers must take steps to ensure that they can prove in an auditable manner how seriously their company takes the safety of its employees.
What are the penalties? Well, they are potentially huge – in terms of money that could run into millions of pounds, serious loss of reputation and, in certain cases, prison sentences for individuals.
There is also scope for remedial orders – effectively ordering an organisation to fix any problems identified in court, and publicity orders, forcing it to make public the particulars of any convictions. The latter could be particularly damaging, resulting in effects as diverse as eye-watering insurance premiums, future recruitment issues and lower share prices.
Gerard Forlin (right) is a barrister at 2-3 Gray’s Inn Square, London and has been ranked number one in the field of health and safety by the Legal 500 for 2007 and 2008. He is the general editor of Corporate Liability: Work Related Deaths and Criminal Prosecutions.