FATAL ACCIDENT INVESTIGATIONS AND PROSECUTIONS

1. FATAL ACCIDENT INVESTIGATIONS AND PROSECUTIONS Barry Berlin www.st-philips.com

2. Enforcement Policy/Discovery/Adaway • R v Hayes (2006) (animal passport case) where a prosecution brought by a local authority under strict liability provisions was dismissed as an abuse of process because following Adaway The potential counter arguments: • R (on the application of Mondelly) v Commissioner of Police for the Metropolis • The presumption of regularity • London Borough of Wandsworth v Rashid 1 www.st-philips.com

3. Disclosure under Statute Prosecutor • Section 2(3) of the CPIA states: • “References to the prosecutor are to any person acting as prosecutor, whether an individual or a body.” Pre plea disclosure/common law • R v DPP ,ex p Lee [1999] 2 All ER 737DC • The disclosure required by the 1996 Act is and is intended to be less extensive than would have been required prior to the 1996 Act at common law. 2 www.st-philips.com

4. Disclosure under Statute Trigger for Section 3 Disclosure Section 3 Initial duty of prosecutor to disclose • which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, 3 www.st-philips.com

5. R v H & C [2004] 2AC 134 HL • Section 32 of the Criminal Justice Act 2003, yet to take effect, has amended s 3(1)(a) of the 1996 Act so as to require primary disclosure of any previously undisclosed material 'which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused'. Whether in its amended or unamended form, s 3 does not require disclosure of material which is either neutral in its effect or which is adverse to the defendant, whether because it strengthens the prosecution or weakens the defence. 4 www.st-philips.com

6. R v H & C [2004] 2AC 134 HL • Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court. Only in truly borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands..” • 3rd Party Disclosure see • Control and Management of Unused Material in the Crown Court paras 2, 3 59 and 62. 5 www.st-philips.com

7. Freedom of Information Act 2000 came into force 1st January 2005 6 www.st-philips.com

8. Fatal Accident Investigation Health and Safety at Work etc Act 1974 (the 1974 Act’) 7 www.st-philips.com

9. Gathering of evidence 1 Interview staff and take statements (non exhaustive list): • Establish the employers name. If a company exact name and do comprehensive company search. • If Unincorporated Association e.g. Club or other body of persons consider who is the employer and whether the proceedings should be brought in the name of individual members or in the name of the Club. Is there a separate fund? See R v RL and JF (2008) CA • Who owns/operates the premises at which it occurred. If necessary do land registry search. • Consider whether the accident within the course of employment (see section 52 of the 1974 Act) • Approach the build up to the incident chronologically. • When did the accident occur. • What caused the accident. Has anything changed in work practices to create risk e.g. merger, cuts not properly considered or accommodated. Regulation 4 and 5 of the Management of Health and Safety at Work Regulations 1999. 8 www.st-philips.com

10. Gathering of evidence 2 Interview staff and take statements (non exhaustive list): • How did it occur • Who saw it happen. • What was the cause of death. Obtain a copy of the pathologist’s report from Coroner • Interview all relevant witnesses. Remember that the employees may seek to disguise or avid responsibility. • Have they seen health and safety policy and risk assessments for the job. • Have they been trained to do the job they are doing e.g. fork lift truck use, banksman etc • Consider whether relevant regulations breached e.g. Management of Health and Safety at Work 1999, Workplace (Health Safety and Welfare) Regulations 1992, Personal Protective Equipment at Work Regulations 1992 (all have approved Codes of Practice). 9 www.st-philips.com

11. Gathering of evidence 3 Interview staff and take statements (non exhaustive list): • Expert Evidence may be required to assist in particular areas e.g. Medical and engineer for carbon monoxide poisoning ore legionnaires disease and HSE structural engineers for stacking racking collapse, or specialist inspector for Workplace transport matters, specialist electrician for electrical failures etc. • Obtain relevant documentation including risk assessments, training records and health and safety policy as soon as possible to avoid potential for contriving material post accident and pre dating it. Ensure than relevant risk assessments and health and safety policy were on site and seen by staff. Were the risk assessments generic or site specific. Are they suitable and sufficient. • Had any similar accidents occurred before (very important to defeat reasonable practicability or mitigation). If so what had been done in the intervening period. • Was this a one off accident or does it illustrate systemic failure. • Consider Prohibition and or Improvement Notices. • Obtain Company accounts for last 3 years. If they show a loss check directors level of remuneration and any large capital expenditure e.g. new premises. 10 www.st-philips.com

12. Police and HSE • Coroner’s Inquest • R v North Humberside Coroner ex p Jamieson • In Work Related Deaths-A Protocol for Liaison (September 2011, Police, HSE, Local Authorities, ORR • “10.3 Where the relevant enforcing authority has completed an investigation, they will consider whether it is appropriate to charge any health and safety offences at that stage, or to await the result of the coroner’s inquest before making that decision. In making the decision they will consult as appropriate with the police, CPS, coroner, deceased’s family and any other person who may have a legitimate interest.” 11 www.st-philips.com

13. INFORMATIONS • Draft Particulars • Chargot HL para 22 • General Breach of Duty • non delegable duties • If the regulatory breaches can be included in the general breach particulars this should be done. • Where the general breach covers the issues it is unwise to add separate regulatory breaches as the Defence may wish to plead guilty to the regulatory matters and claim abuse of process if the prosecution seek to pursuer the general breach. 12 www.st-philips.com

14. Section 2 • HSE v Spindle Select Ltd • In my opinion there is no need to refer specifically to the examples set out in Sec.2(2). In any event they are not exclusive as the introductory words to the sub-section make clear. 13 www.st-philips.com

15. Section 3 • R v Board of Trustees of the Science Museum • “… In case A the loose object is in a position in which it might fall off and hit a pedestrian. In that case there is a mere risk. In case B the object in fact falls and exposes pedestrians to actual danger. In case C the object falls and causes actual injury to a pedestrian. The prosecution submits that exposure to risk in case A constitutes a prima facie case under s 3(1). The defence submits that s 3(1) only covers cases B and C. The starting point must be the ordinary meaning of the language of s 3(1). In our judgment the interpretation of the prosecution fits in best with the language of s 3(1). In the context the word 'risks' conveys the idea of a possibility of danger.” 14 www.st-philips.com

16. Conduct Undertaking • R v Mara • R v Associated Octel Co Ltd CA Stuart Smith LJ (p1062j) stated that the word ‘undertaking’ meant ‘enterprise’ or ‘business’ • R v Associated Octel Co Ltd HL • The place where the activity takes place will in the normal case be very important; possibly decisive. • “If he has a repair shop as a part of his plant, that is an ancillary part of his undertaking. Likewise, as in this case, if he has independent contractors to do cleaning or repairs on his own premises, as an activity integrated with the general conduct of his business. But not in the case of activities carried on by another person entirely separately from his own.” (emphasis added) 15 www.st-philips.com

17. Potential Defences • Wrong Company • Frolic of his own Reasonable Practicability Section 40 “In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.” 16 www.st-philips.com

18. R v HTM • R v Nelson Group Maintenance Services[1998] 4 All ER 331 “Moreover it is a sufficient obligation to place on the employer in order to protect the public to require the employer to show that everything reasonably practicable has been done to see that a person doing the work has the appropriate skill and instruction, has had laid down for him safe systems of doing the work, has been subject to adequate supervision, and has been provided with safe plant and equipment for the proper performance of the work.” 17 www.st-philips.com

19. R v Gateway Foodmarkets “The duty under each section is broken if the specified consequences occur, but only if "so far as is reasonably practicable" they have not been guarded against. So the company is in breach of duty unless all reasonable precautions have been taken, and we would interpret this as meaning "taken by the company or on its behalf". In other words, the breach of duty and liability under the section do not depend upon any failure by the company itself, meaning those persons who embody the company, to take all reasonable precautions. Rather, the company is liable in the event that there is a failure to ensure the safety etc. of any employee, unless all reasonable precautions have been taken - as we would add, by the company or on its behalf. 18 www.st-philips.com

20. R v Gateway Foodmarkets • We prefer to conclude, therefore, that a failure at store management level is certainly attributable to the employer, whilst leaving open the question whether the employer is liable in circumstances where the only negligence or failure to take reasonable precautions has taken place at some more junior level. 19 www.st-philips.com

21. Independent Sub Contractors • Friskies Schedule • The Prosecution must scrutinise the Defence counter schedule as it may wish to challenge the Defence basis of plea in a Newton Hearing. • Newton Hearings 20 www.st-philips.com

22. R v Chargot Ltd [2009] 1 WLR 1HL “17. The first issue is to determine the scope of the duties imposed on the employer by sections 2(1) and 3(1). In both subsections the word “ensure” is used. What is he to ensure? The answer is that he is to ensure the health and safety at work of all his employees, and that persons not in his employment are not exposed to risks to their health and safety. These duties are expressed in general terms, as the heading to this group of sections indicates. They are designed to achieve the purposes described in section 1(1)(a) and (b). The description in section 2(2) of the matters to which the duty in section 2(1) extends does not detract from the generality of that duty. They describe a result which the employer must achieve or prevent. These duties are not, of course, absolute. They are qualified by the words “so far is reasonably practicable”. If that result is not achieved the employer will be in breach of his statutory duty, unless he can show that it was not reasonably practicable for him to do more than was done to satisfy it. (emphasis added) 21 www.st-philips.com

23. R v Chargot Ltd [2009] 1 WLR 1HL 21. For these reasons I would reject Mr Lissack’s primary submission that sections 2(1) and 3(1) require the prosecution to identify and prove the acts and omissions by which it is alleged that there was a breach of the duty to achieve or prevent the result that they describe. What the prosecution must prove is that the result that those provisions describe was not achieved or prevented. Once that is done a prima facie case of breach is established. The onus then passes to the defendant to make good the defence which section 40 provides on grounds of reasonable practicability. A contrast may be drawn with sections 4 to 6, which set out a series of more particular measures that must be taken. Where breaches of those sections are alleged, the respects in which there was a breach must be identified. (emphasis added) 22 www.st-philips.com

24. R v Chargot • Prima facie a breach of section 2(1) arises where an employee is injured while he is at work in the workplace. That fact in itself demonstrates that the employer failed to ensure his health and safety at work. The same is true where a person not in his employment but who may be affected by the undertaking suffers injury. 23 www.st-philips.com

25. Reasonable Foreseeability and Causation • R v EGS Ltd [2009] EWCA Crim 1942CA •  that the duty on employers is not simply to take reasonable care but to ensure health and safety so far as is reasonably practicable. 24 www.st-philips.com

26. Dyson LJ in R v EGS Ltd stated: “27. In any event, it is strictly inapt to speak of a risk being foreseeable. A risk is a present potential danger the existence of which may or may not be appreciated: see per Steyn in R v Board of Trustees of the Science Museum [1993] 1 WLR 1171, 1177F, approved in Chargot at [20]. If the risk eventuates and an accident occurs, then a question may arise in the context of a section 40 defence as to whether the accident was foreseeable or unforeseeable: see R v H.T.M. Ltd [2006] EWCA Crim 1156. But it is not relevant to the issue of whether the prosecution has proved the existence of a material risk. It may be that the judge used the word “foreseeable” inaccurately and that he used it interchangeably with “would have been appreciated”… (see however Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v R per Hughes LJ para 36 where it is made clear that forseeability of danger is required to be proved to show material risk) 25 www.st-philips.com

27. Causation is not an essential ingredient of the offence. The prosecution did not have to establish that EGS caused the accident, although in the present case, as in most, they did in fact rely on a causal connection between EGS’s acts and omissions as going to establish risk. They merely had to prove that EGS exposed persons not its employment to risks to their health or safety. Nor do we understand the reference to remoteness. It would appear that the judge was treating the prosecution as if it were a civil claim for damages for breach of statutory duty. But it is clear from Chargot that this is the wrong approach.” (emphasis added) 26 www.st-philips.com

28. Requirement of Prosecution to Prove that there was a foreseeable risk of injury/not a foreseeable accident • Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v R • Causation • Forseeability • None of this, however, means that in a prosecution under either section it is incumbent on the Crown to prove that the accident which occurred was foreseeable. That would convert the sections into ones creating offences of failing to take reasonable care to avoid a specific incident. 27 www.st-philips.com

29. They command an enquiry into the possibility of injury. They are not limited, in the risks to which they apply, to risks which are obvious. They impose, in effect, a duty on employers to think deliberately about things which are not obvious. In most cases, absent the sort of time factor which obtained in Baker v Quantum,. • . What is reasonably practicable no doubt depends on all the circumstances of the case, including principally the degree of foreseeable risk of injury, the gravity of injury if it occurs, and the implications of suggested methods of avoiding it. “ (emphasis added) 28 www.st-philips.com

30. CHECKLIST NOT EXHAUSTIVE 1 • When matter reported, ensure time and log RIDDOR • If serving a Prohibition Notice or Improvement Notice on a Company ensure that the Notice is addressed to the right Company and not on its Company Secretary. Section 46(3) of the 1974 Act allows for service of notices against companies to be served on Company Secretary, this does not mean address the notice to the Company Secretary who is a different legal person (see e.g. section 37 of the 1974 Act). • When gathering evidence remember “what is there to disclose”. Remember Adaway and abuse of process potential. Take statements under section 9 CJA 1967Medical evidence to show cause of death usually from pathologist must be obtained in fatal case. In other cases medical evidence to show extent of injury and prognosis. • Consider whether procedures such as identification or RIPA authorisation required. 29 www.st-philips.com

31. CHECKLIST NOT EXHAUSTIVE 2 • Attend inquest and be represented. Keep a note of the evidence. The evidence and verdict could be very important (case against Birmingham and Solihull NHS Trusts came to light at inquest when it was discovered that vital information about the condition of the resident in a respite centre had not been passed on to the trust running the centre; may be a case for special verdicts e.g. accidental death contributed to by neglect). • Evidential test and Public Interest test for Code of Practice for Crown Prosecutors must be met and recorded as met (see importance in R v Milton Keynes MC ex p. Roberts [1996] Crim LR 224 Ford parts case) Include specifically in the tests consideration of Articles 6 and 8 of European Convention on Human Rights. • If a Company obtain full search including names of directors and last 3 years published accounts. Do not accept accounts at face value unless properly audited. 30 www.st-philips.com

32. CHECKLIST NOT EXHAUSTIVE 3 • If an unincorporated association , check whether there is a separate fund. If so prosecution can be pursued against either the unincorporated association in its own name or in name of senior members e.g. the Chairman, Treasurer etc see R v RF (2008) • Obtain previous convictions from OFT, HSE and Police. • Pre laying of information consider defences and potential mitigation e.g. “not the right company”; “reasonable practicability” “Gave all the training, plant and supervision”. . • If mistake by site manager or above less chance of Defence succeeding on “reasonably practicable” test R v Gateway Food Markets [1997] 3All ER 78 per Evans LJ p84. Consider again whether ID in issue. 31 www.st-philips.com

33. CHECKLIST NOT EXHAUSTIVE 4 • List the particulars and in Officers internal document headed “for the attention of the Legal Department” under each particular refer to the evidence in support from the specific witnesses and or from the interview. Where death is involved ensure that you consider the evidence to support causation direct or indirect. “Was this an “avoidable accident” is often a good way of approaching that question. • Was this a systemic failure/or one off failure (e.g. giving child with milk allergy breakfast cereal with milk protein. • Was this intentional, reckless or just careless? • Produce draft Friskies Schedule remember that the particulars should not usually already be referred to in the informations. These are matters which aggravate or mitigate the offence e.g. death, failure to heed warnings, previous convictions 32 www.st-philips.com

34. CHECKLIST NOT EXHAUSTIVE 5 • If the potential defendants include a Company officer consider the evidence in respect of section 37 consent or connivance of or neglect. This is not strict liability see neglect in Wotherspoon v HM Advocate 1978 JC 74 and R v P Ltd and Another (2007) the Times 13th August 2007 (as to neglect-ought to know enough rather than turning a blind eye, the question being whether if the company officer did not have actual knowledge whether he should have been put on inquiry by reason of the surrounding circumstances ao as to have made inquiries concerning whether the relevant safety procedures were in place. SEE ALSO R v Chargot paras 32-34 • Informations must be laid in the name of an inspector appointed under section 19 of the 1974 Act (see section 38). This function cannot be delegated see R v Croydon Justices ex. p. WH Smith Ltd (2000) The Times 22nd November DC. • Do not lay more informations just for the sake of it as it will detract from the force of the case and as the matter is likely to go to the Crown Court as a fatal accident will serve only to annoy the Judge. You only need to ensure that the real issues are present and if they are covered by the general breach charge do not repeat them in a separate charge as the Defence may plead guilty to the Regulatory Offence and invite the Court to consider that proceeding on the general breach is an abuse. 33 www.st-philips.com

35. CHECKLIST NOT EXHAUSTIVE 6 • Where not guilty plea is entered and the Defence seek further disclosure approach the request fairly in line with R v H and C s 3 does not require disclosure of material which is either neutral in its effect or which is adverse to the defendant, whether because it strengthens the prosecution or weakens the defence. • Where a guilty plea is entered and the Defence produce their own version of the Friskies Schedule, check how far that differs from the Prosecution list. If irreconcilable without a real risk of compromising the case consider a Newton Hearing and notify witnesses that they be required. Always ensure that witnesses whereabouts are kept up to date. • Crown required to prove forseeability of injury/danger in order to show material risk (see Tangerine para 36) • Crown not required to prove causation of accident or forseeability of accident. • In asbestos cases (no safe threshold) see R v WILLMOTT DIXON CONSTRUCTION LTD [2012] EWCA Crim 1226 34 www.st-philips.com

36. Contact us: enquiries@st-philips.com St Philips Chambers 55 Temple Row Birmingham B2 5LS T: (+44) 0121 246 7000 www.st-philips.com www.st-philips.com