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    CORPORATE MANSLAUGHTER: REVIEW OF ISSUES

    International law firm provide review and ‘pointers’ on CMCH Act

    The firm Kennedys Law LLP has provided ‘pointers’ to the future under the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCH) prosecutions using a review of the Lion Steel case to address the following questions:

    • Did the case against Lion Steel and its trial provide any pointers to those involved in safety management policy and decision making?
    • Are companies and their lawyers any further forward in understanding some of the key provisions of the Act?
    • Why has it taken five years for the authorities to bring only three cases to a conclusion?

    The following ‘pointers’ are also identified:

    “The first is to be very careful about one’s response to guidance and warnings provided by the HSE and other regulators, as well as to that given by safety consultants and insurers. Although because of Lion Steel’s guilty plea the point was not played out before a jury, the Judge took the opportunity to hang his sentencing hat (or wig) in part on the knowledge at senior management level of a letter from the HSE in 2006 which suggested warning notices be considered for the roof. Had the company responded actively to that suggestion, whether by fitting signs or explaining in a logical way why an alternative course would be appropriate, that particular “gun” could have been rendered non-smoking. Equally, had the company, its insurers and its safety consultant engaged with each other in a more careful way then the Prosecution could have been denied some of its evidence.

    The second pointer relates to the delineation and understanding of directors and other senior managers’ roles and responsibilities. This was an issue which in the absence of clear company job descriptions and budgetary authorities led to much wrangling in court. While one might argue that clear job descriptions and responsibility matrices and understanding in some cases make it easier for a prosecutor to pursue a particular director, the stronger argument if there is confusion and uncertainty in this area then the chances of a wide ranging prosecution are likely to be higher, not to mention the accident itself.

    Finally, there was evidence in the Lion Steel case of different standards of safety being applied at the company’s two sites and the difference was a weakness in the company’s defence. Consistency and adherence to group standards would have improved both the company’s and the Directors’ positions.”

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