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Law: Corporate Manslaughter, Responsibility, Management and one or two other things to sort out before coffee

In the beginning was the one man band selling a car, repairing a car or perhaps both. Such simplicity – but not totally.

There were still government rules on safety, environment, quality, advertising, taxes and of course there must be a profit at the end of the day.

As an example of sole trader liability a sole motor trader for St Albans was prosecuted by Hertfordshire Trading Standards on 12 September 2007 for selling an unroadworthy vehicle.

He sold the car for £340 and was given a 12 month conditional discharge and ordered to pay £705 costs.

Then there was a partnership.

Two or three minds going in the same or different directions?

The Corporate Manslaughter and Corporate Homicide Act 2007 received the Royal Assent on 26 July 2007. The Act will come into force on 6 April 2008.

Despite its name it also applies to partnerships.

The legislation is essentially building on the common law offence of gross negligence manslaughter as a statutory offence for a company or partnership.

Rather than looking at the guilt of individuals, the new law looks at the way in which the activities of the organisation are run.

Hence safely measures must be enshrined in policies which must be clarified and reported upon diligently.

It is the way the senior management have management and organised activities that will be under the spotlight.

There will, of course, be a route under existing legislation to prosecute individual members of senior management where culpability is found as a result of knowledge of a failing system.

The term senior management means those persons who play a significant role in management of the whole or a substantial part of the organisation activities.

This includes those in the direct chain of management from the top as well as those in strategic or regulatory compliant roles.

Proceedings against partnerships will be brought in the name of the partnership and fines will be paid for the funds of the partnership.

#AM_ART_SPLIT# Fines are unlimited and in addition a Court can impose a Remedial Order that is to order to remedy any consequence of the management failure.

In Health and Safety terms this could for instance, be a requirement to carry out as an adequate risk assessment if it is clear that this has not been carried out as stringently as possible. Failure to comply with the Remedial Order will also attract an unlimited fine.

There is an additional power for the Court to order the organisation to publicise in a specified manner, particulars of the offence, any fine and any remedial order made. In common parlance this is clearly a regulated ‘name and shame’ process.

We will update details in this thorny area as it develops.

Visit www.lawgistics.co.uk or call 0870 26 77 118 for more information.

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