The verdict in the John Charles De Menezes shooting case is a preview of how the courts will apply the Corporate Manslaughter Act which comes into force in April. Paul Verrico explains
Few recent criminal trials have drawn as much media attention as that concerning the death of Jean Charles De Menezes, shot by a member of the London Metropolitan Police on 22 July 2005. However, the implications of the actual verdict, a finding of a breach of health and safety law, may be lost.
Illustrative of this, the BBC website failed to mention what sections of health and safety laws were breached, instead highlighting the headline fine of £175,000 and £385,000 in costs the police have been forced to pay and the fact that the jury only took five hours to reach its verdict.
The judge’s terminology may foreshadow the language we will see in cases under the Corporate Manslaughter and Corporate Homicide Act 2007 (coming into force in April 2008). Mr Justice Henriques described the case as involving a “corporate failure, not an individual failure” – a clear reference to the new Act which does not provide for prosecutions against individuals in senior management, but is designed to facilitate prosecutions against organisations.
The judge outlined 19 specific “catastrophic” failures of the police. Some were failures of training and some of execution, involving nearly all levels of command. In short, they amounted to a “systemic” failure of the police to protect members of the public while performing their duties. Taking a holistic view, as required under the new Act, the police force can clearly be shown to have committed a gross breach of its duty of care to members of the public that led to the death of an innocent person.
If a police force acting to prevent terrorism can be found guilty of a section 3 offence, how much more likely will it be for a public body to face conviction?
This type of case, involving numerous failures which cannot all be attributable to one person, is exactly the type the Corporate Manslaughter Act is aimed at. The requirement under the Act that senior management must be identified as playing a part in the commission of the offence would have been more than satisfied here as “Gold Commander” Cressida Dick and Sir Ian Blair himself (among others) were identified as individuals at fault. It is clear that activities under their management were a “substantial element” in the breach of the duty of care owed by the police to the deceased.
The significance of this judgment to you is also clear. The Corporate Manslaughter Act 2007 is already having influence on the courts and successful prosecutions are likely. Teamwork and clear lines of communication are essential when matters of health and safety are at stake. At a very basic level this may involve ensuring a control room (or office) is not overly noisy, even in times of emergency, so instructions can be heard.
The new Act prescribes “negative publicity orders” which allow details of successful prosecutions to be published. The stigma attached to a corporate manslaughter conviction is much greater than a failing that can be attributed to “traditional” health and safety law. This will provide extra motivation to bring prosecutions. The Menezes case shows the lengths to which the courts will stretch health and safety to give some sort of justice to affected families. If a police force acting to prevent terrorism can be found guilty of a section 3 offence, how much more likely a public body?
Decisions taken by employers or employees that affect the safety of the public will be scrutinised by the courts. They will use health and safety law to hold senior management to account. Our profession affects members of the public on a daily basis, thus judicial scrutiny will become all the more intense when the new law comes in on 6 April. n
Building Sustainable Design
Paul Verrico is a solicitor with Eversheds. Email email@example.com or call 0845 498 4084