Corporate Safety Crimes Recent prosecutions following fatalities at Work

1. Corporate Safety CrimesRecent prosecutions following fatalities at Work Presented by: Craig McAdam 2013

2. Investigating Fatalities • Following a fatality • Police • HSE • Coroner • CPS • Time Scales • Witnesses • Employees • Supervisors • Managers • Directors • The Company

3. 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

4. Corporate Manslaughter & Corporate Homicide Act 2007 • Enacted 6th April 2008 • “A revolution in the way in which companies can and will be prosecuted

5. 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

6. 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

7. 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

8. 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?

9. 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

10. 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

11. 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

12. 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.”

13. 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”

14. 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”

15. Sentencing • Unlimited Fine – s1(6) • Remedial Order – s9 • Publicity Order – s10

16. 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

17. 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

18. 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

19. 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

20. So where are we now…? • To what extent are the new powers being used? • What next?

21. 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.