© slater & gordon limited 2012 corporate safety crimes recent prosecutions following fatalities...

© Slater & Gordon Limited 2012

Corporate Safety CrimesRecent prosecutions following fatalities at Work

Presented by: Craig McAdam

2013

Reputation & Results™


Investigating Fatalities

1. Following a fatality► Police ► HSE► Coroner► CPS► Time Scales

2. Witnesses► Employees► Supervisors► Managers► Directors► The Company



The Offences

POLICE

• Gross Negligent Manslaughter Common Law• Corporate Manslaughter and Corporate

Homicide Act 2007

HSE

• HASAWA s. 2 and 3• HASAWA s. 7 and s.37



Corporate Manslaughter & Corporate Homicide Act 2007

• Enacted 6th April 2008

• “A revolution in the way in which companies can and will be prosecuted



Elements of the Offence

• Qualifying Organisation• Causes a Persons death• Relevant Duty of Care• Gross Breach of that Duty• Managed or Organised by Senior Management



Qualifying Organisations

• A Corporation• A Department or Body Listed in Schedule 1• A Police Force or Government Department• A Partnership, Trade Union or Employers

Association that is an Employer



Causation & Relevant Duty of Care

• Gross Breach of Duty of Care by Senior Management

• More than a mere contribution to the death• Clarification of role of Judge and Jury in Crown

Court



The Breach

• Must fall “far below” what could reasonably be expected of the organisation in the circumstances – s1(4)(b)

• Factors for the Jury to Consider – s8• How serious was the breach – s8(2)(a)• How much of a risk of death it posed – s8(2)(b)• Other considerations – s8(3)• Forseeability?



Aggravating Factors

• More than one death, or very grave personal injury in addition to death

• Failure to heed warnings and advice• Failure to respond to “near misses” • Cost-cutting at the expense of safety• Deliberate failure to obtain or comply with

relevant licenses• Injury to a vulnerable person



Mitigating Factors

• Prompt acceptance of responsibility• High level of co-operation with the investigation• Genuine efforts to remedy the defect• A good Health & Safety Record• Responsible attitude towards health & safety



The Cases

Regina v Cotswold Geotechnical Holdings Ltd [2011]The Indictment

1. Gross Negligence Manslaughter - Peter Eaton

2. Corporate Manslaughter, CMCHA 2007 - Cotswold

3. s2(1) Health & Safety at Work Act 1974 - Cotswold

4. s37 Health & Safety at Work Act 1974 – Peter Eaton



The Cases

• Convicted Winchester Crown Court – 15th February 2011

• Leave to appeal against conviction and sentence refused by LCJ’s Court 11th May 2011

• Fined £385,000• “It may well be that the fine in terms of its payment will put

this company into liquidation. If that is the case it is unfortunate but unavoidable. It is a consequence of the breach.”



The Cases

• Regina v JMW Farms Ltd [2012]

• Convicted Belfast Crown Court - 8th May 2012

• £187,500 Fine + £13,000 costs

• “The New Corporate Manslaughter legislation clarifies the criminal liabilities of companies where serious failures in the management of health and safety result in a fatality. I would therefore urge anyone with a managerial or supervisory role to ensure that proper management and control systems are in place to prevent another needless death from occurring”



The Cases

• Regina v Lion Steel Ltd [2012]

• Convicted Manchester Crown Court – 20th July 2012

• £480,000 Fine + £84,000 Costs

• “There was a gross breach of duty by the company... This company, while doing something to deal with the obvious risks, did far less than was required”



Sentencing

• Unlimited Fine – s1(6)

• Remedial Order – s9

• Publicity Order – s10



Unlimited Fine - Relevant Factors

• Means of the Defendant are relevant & Court should require financial information

• Fixed correlation between the fine & either turnover or Profit is NOT appropriate

• Effect on the employment of the innocent MAY be relevant

• Effect on shareholders or Directors will NOT be relevant

• The likelihood of prices charged by the defendant being raised will not ordinarily be relevant

• Effect on the provision of services to the public will be relevant

• Liability for civil compensation is NOT relevant• Cost of any remedial order is NOT relevant• Whether the fine will have the effect of putting

the defendant out of business will be relevant; in some bad cases this may be an acceptable consequence



Actual Figures

• Corporate Manslaughter requires a gross breach at senior level and will ordinarily involve a level of seriousness significantly greater than a health & safety offence

• Appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds



Actual Figures

• Health & safety cases will involve a far greater range of levels of seriousness. Where the offence is shown to have caused death however the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more

• In all cases defendants ought to be ordered to pay prosecution costs



Other Orders

• Remedial Orders- available for both Corporate Manslaughter & HSWA

offences- must be specific enough to be enforceable

• Publicity Orders- available for Corporate Manslaughter only- should ordinarily be imposed

- Court may specify the form of the announcement, a particular

newspaper and the number of insertions



So where are we now…?

• To what extent are the new powers being used?

• What next?



Recent Decisions

• S.7 – HGV Driver – - sentence to 24 week custodial suspended for two years after reversing backwards and fatally injuring a co worker

• General Motors – s.2 and PUWER 1998 11(1) following fatality at the plant in July 2010 – a risk assessment in 2010 had identified a risk which wasn’t acted on - £150,000 fine and £19,654 costs.

• Prestige Construction – worker fell through skylight – serious spinal injuries but made a full recovery, guilty plea to reg.6(3) of the work at height regs and reg.23(2) CDM regs - £30,000 and £9,000 costs.

© slater & gordon limited 2012 corporate safety crimes recent prosecutions following fatalities...

Documents

health safety slide

employer slide

prosecuted slide

crown court slide

peter eaton slide

senior management slide

vulnerable person slide

death failure