This new criminal statute became law in April 2008 after significant activity surrounding workplace related deaths involving employees, the self employed and the public where fatal injuries were sustained due to a work related activity. Infamous examples include Clapham rail disaster, Bradford stadium, Woolworths Manchester and Piper Alpha. There has been significant pressure upon successive Governments from the relatives of the Deceased since 1962 to make Directors and Senior Managers responsible for their acts and omissions. There are, of course, provisions under the Health and Safety at Work etc Act 1974 under Sections 2, 3, 36 and 37 supported by jail terms of up to two years per charge and unlimited fines. The more recent Safety Offences Act has strengthened the terms of imprisonment and fines available to magistrates including for the first time breaches of the Health and Safety at Work etc Act 1974 where an employee can be jailed.
The circumstances surrounding the death of Alan Wright, aged 27, was that whilst trial pitting in the Stroud area of Gloucestershire breaking into the ground some 3.8 metres, the pit was unsupported and thus the soil collapsed crushing him to death.
Penalties for failing to discharge the relevant Duty of Care under the new Act do not include imprisonment; however the Common Law – involuntary killing and manslaughter which can carry life imprisonment can be applied alongside the new legislation as was the case here against the Director of Cotswold Geotechnical (Holdings) Ltd. In addition, the Court can require the Company to tell the world at large where they failed via a Publicity Order and also state how they intend to prevent a recurrence or remedial order. The Sentencing Advisory Panel (SAP) recommends a minimum fine of £500,000 or up to 10% of turnover.
This was a landmark case which would decide who is classified as a Senior Manager and to what level or industry practice they fell below – i.e policies, systems of work and shoring of an excavation.
The Director did not stand trial eventually at the directions of the Trial Judge in view of his failing health. On 16th February 2011 at Winchester Crown Court and following the Jury having found the Company guilty after one and a half hours deliberation, Judge Field concluded that the Company was guilty of a grave offence. In addition, the approach of the Company and the Director was extremely irresponsible and dangerous. Despite representations on behalf of the Company that a large fine would cripple it, a fine of £385,000 was imposed.