Corporate manslaughter: When they read you your rights

The first trial under the Corporate Manslaughter and Corporate Homicide Act 2007 is due to commence at Bristol Crown Court on 23 February – it’s the infamous Cotswold Geotechnical Holdings case. It will be watched closely by the construction industry. Even though the defendant is relatively small, large organisations should take a closer look at how the corporate manslaughter legislation can be applied to construction companies and, if the worst happens, how you can expect to be treated if your business is the subject of a police investigation.

For a start, the police and Health and Safety Executive cast a big net if a fatal accident occurs on a site. They will want to establish what work was being done and the arrangements made to carry it out, so enquiries will be made to establish how and why that contractor was engaged to perform the work. The ripple effect of “who hired whom” can spread widely, including to organisations that commissioned the work but were not directly involved in it. One of our clients was alarmed to be considered a suspect even though his work on the site was completed several weeks before the fatality occurred.

Questions will be asked to establish what competency checks were made of the contractor by the organisation engaging them. If no checks or insufficient checks were made, that party could be considered liable for an offence of corporate manslaughter (often in addition to the contractor, who may also be prosecuted). If the client did not ensure that the work was adequately planned and risk-assessed, it could indicate a failure at senior management level that was sufficiently grave to warrant prosecution. Any company that was remotely involved could be called to account.

Before deciding whether to prosecute, there will be an extensive police investigation. This is likely to take many months (even years) and may involve numerous employees providing evidence as witnesses or as suspects, under caution. Typically a senior representative of the company will be invited to attend an interview under caution, which can be a harrowing experience.

Attendance at such an interview is voluntary, although if the interviewee is suspected of committing an offence in their personal capacity, such as gross negligence manslaughter, the police do have powers of arrest. We have seen situations where clients believe they will be having an informal chat with the police, only to be threatened with arrest if they refuse to attend a formal interview.

The custody suite of a police station can be an intimidating environment, and the reality is just as unnerving as television would have you believe. The area is highly secured and any comfort breaks and meal breaks are taken with the permission of the interviewing officers and often in cells. The rights of a “voluntary attender” are much the same as those of an arrested suspect. In our experience, police officers deal with corporate manslaughter in much the same way as any other serious crime. It is unsurprising therefore, that clients report feeling like criminals during the interview.

Interviewees cannot be required to answer questions during the interview and it is critical that the implications of providing any information are fully considered in advance. The interview will be tape recorded and may be remotely monitored so once an answer is provided, there will be a permanent record of what has been said. Interviewees should also be very wary of any “off-the-record” or informal discussions while in the police station. Simply because a comment has not been recorded does not mean that it cannot be considered as part of the investigation.

The Corporate Manslaughter Act has already had a big impact on the way workplace fatalities are investigated. It is now more likely than ever before that employees, senior managers and directors of construction firms involved in this type of investigation may find themselves in an unfamiliar and potentially stressful police interview, explaining their actions in relation to an incident. It is imperative that potential interviewees are well prepared, know their rights while at the police station and understand what they may be up against.