1. ESRC Seminar Series: Learning From Incidents “Key risks in Health & Safety and how to learn lessons from incident investigations” Presented by Kizzy Augustin, Pinsent Masons LLP 11 February 2015

2. Overview Key new risks in Health and Safety –Individual H&S Duties / imprisonment for individuals –Corporate Manslaughter and Corporate Homicide Act 2007 –Recession / Budget cuts –HSE “FFI” initiative –Fire Safety How to avoid criminal liability – top tips Accident Investigation – learning lessons / practical tips on how to limit liability

3. Key New Risks in Health & Safety

4. Individual H&S duties (1) Individuals Duty to take reasonable care of self and others affected by work (s.7) Where an offence… has been committed with the consent, connivance, or…is attributable to any neglect on the part of any director, manager … or a person who purports to act in that capacity, he/she as well as the company shall be guilty of that offence (s.37) Duty of employees Section 7 Section 37 Liability of directors and senior managers

5. Individual H&S duties (2) Consent - have knowledge and endorse/direct it Connivance – have knowledge and ignore it Neglect – should have been aware (even if they are not) and taken action

6. Individual H&S duties (3) Fines / penalties –Section 7 - £5,000 –Section 37 Magistrates – £20,000 Crown – unlimited (typically £50k to 100k) Imprisonment – up to 2 years (or community service!) Disqualification for up to 15 years (typically 5 years)

7. Risk of imprisonment? R v Sidebottom & Golding (2014): Ground worker died during the completion of a basement construction project at a domestic premises in London Works included engineering process of “underpinning” 4 year investigation and 3 ½ week trial in the Crown Court Site Manager (employed by the Subcontractor) convicted of gross negligence manslaughter Health & Safety Advisor, engaged to provide H&S services to the site convicted of breaching Section 7 of the Health and Safety at Work etc. Act 1974

8. Risk of imprisonment? A Landmark Sentence… H&S Advisor sentenced to 9 months in prison First time an immediate custodial term imposed for a breach of Section 7 of the HSWA, in preference to the sentence being suspended Site Manager sentenced to 3 years and 3 months in prison

9. Corporate Manslaughter and Corporate Homicide – Where are we now? Corporate Manslaughter and Homicide Act 2007 Introduced new manslaughter offence for organisations Brought into force on 6 April 2008 11 convictions to date (4 trials; 7 guilty pleas) 2 acquittals 4 further charges: –Baldwins Crane Hire Ltd – trial in October 2015 –Huntley Mount Engineering Ltd – trial in July 2015 –McGoldrick Enterprises Ltd – trial in April 2015 –G&J Crothers Ltd – trial in March 2015

10. Corporate Manslaughter – The Offence Prosecution must prove the way in which activities managed or organised: –Caused a person’s death; –Amounts to a gross breach of a relevant duty of care owed to the deceased; and –Senior management’s role in the breach was a substantial element in the breach Penalties –unlimited fine (multi-million); –remedial order; and / or –publicity order

11. Convictions to Date –Cotswold Geotechnical (Holdings) Ltd February 2011 Fined £385,000 (equal instalments over 10 years) –JMW Farms Ltd May 2012 Fined £187,500 (within 6 months) –Lion Steel Equipment Ltd July 2012 Fined £480,000 (over 3 years) –J Murray & Sons Ltd October 2013 Fined £100,000 (over 5 years)

12. Convictions to Date –Princes Sporting Club Ltd November 2013 Fined £34,579 (within 28 days), plus donation towards proseuction costs of £100,000 First ever Publicity Order –Mobile Sweepers (Reading) Ltd December 2013 Fined £8,000 Publicity Order Sole director fined £183,000 (costs of £8,000) and disqualified as a director for 5 years 12

13. Convictions to Date –Cavendish Masonry Ltd May 2014 Fined £150,000 (over 5 years) –Sterecycle (Rotherham) Ltd November 2014 Fined £500,000 (within 28 days) –A. Diamond & Son (Timber) Ltd December 2014 Fined £75,000 (over 5 years) 13

14. Convictions to Date ‒ Peter Mawson Limited December 2014 Fined £200,000 (Plus Prosecution costs of £31,507.11) Publicity Order Peter Mawson (managing director) was sentenced to eight months in prison (suspended for two years) and 200 hours of unpaid work ‒ Pyranha Mouldings Ltd January 2015 (currently awaiting sentence) 14

15. Acquittals to Date –PS & JE Ward Ltd April 2014 However, sentenced for breach of Section 2 of the HSWA and fined £50,000 –MNS Mining Ltd June 2014 Company found not guilty of four counts of corporate manslaughter following trial No alternative health and safety charges were brought

16. Corporate Manslaughter and Corporate Homicide Act 2007 – what’s next? CPS are still “ feeling their way” towards a real senior management investigation Police have no choice but to interview up the responsibility chain Downsizing or cost cutting – an issue in terms of recognising that cuts could adversely impact safety

17. Recession / Economic Recovery Pressure on finances – could that impact on safety budget? Staff cuts – impact on safety critical roles and managers’ responsibilities? Pressure on contractors / external service providers Impact upon fine if “cost cutting at the expense of safety”

18. HSE Enforcement – Costs Recovery “Fees for intervention” (FFI) - what does it mean? Definition of “material breach” What does it cost? Time period to pay Appeal process – independence? Problems / issues? Implications of inspector behaviour?

19. Fees for Intervention - 12+ months on? Invoices – quality checked by Principal Inspector 145 queries – roughly 26% resulted in amended invoice First stage appeal – Two cases, found in favour of the HSE Second stage appeal – not yet heard

20. Fire Safety

21. Fire – Significant Fines R v New Look Retailers Limited Court of Appeal – June 2010 Upheld fine of £400k – severe but not disproportionate No death/injuries No causation but failed to manage risks Chumleigh Lodge Hotel: Fire After LFB’s visit – serious concerns: defective fire doors, blocked escape routes and absence of smoke alarms Six charges under the RRO 2005 – total fine of £260k Courts imposing significant fines under RRO 2005

22. Fire - Article 5 (3) duty holders Christopher Morris - January 2011 Prosecution of fire alarm engineer (first of its kind) Former fire fighter failed to maintain fire alarm system in care home and failed to inform home owners of systems deficiencies £5,000 fine plus costs of £6,000 O’Rourke – September 2011 2 offences of failing to make suitable and sufficient risk assessment O’Rourke purported to carry out fire risk assessments on both properties – “cut and paste job” G plea – 8 months imprisonment on each count (concurrent) Owner also sentenced to 8 months imprisonment

23. How to avoid criminal liability

24. Top tips to reduce exposure to liability (1) Key Questions: The Culture Test Attitude: What do the staff think & what would they say to an inspector? How seriously does the organisation take H&S? Lack of awareness Systems & Accepted Practices: Do systems reflect what happens on the ground ? Is implementation the same in Lands End and John O’Groats? Better interaction between disciplines and with H&S Department Selection and supervision of contractors: What about specialist accredited contractors?

25. Top tips to reduce exposure to liability (2) IoD Guidance “Leading Health and Safety at Work – Leadership Actions for Directors and Board Members” (INDG 417) Guidance published in October 07 An agenda for the effective leadership of health and safety Applies to all directors, officers and their equivalents

26. Top tips to reduce exposure to liability (3) Responding to Incidents / Learning lessons from Incidents Duty to investigate incidents? RIDDOR reporting Understanding powers of the HSE / LA Legal Privilege – reports do not have to be disclosed to Police, HSE, Coroner or PI claimants Incident protocol – practical tips

27. Duty to Investigate Accidents? Management of Health and Safety at Work Regulations 1999: No express legal duty to investigate –ACoP and HSE guidance suggest “investigation” Disclosure obligations to IP claimant in civil proceedings Commercial reasons (prevent recurrence; maintain productivity; H&S record and tendering; share price value) Moral obligations (public relations; corporate responsibility)

28. RIDDOR Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 Reported by employer or person controlling work premises or activity Notify HSE following work-related: –Fatality –Major injury –Injury causing more than 7 calendar days off normal work –Occupational disease –Dangerous occurrence –Work-related road accident –Includes injury to a member of the public taken to hospital from the site for treatment

29. RIDDOR Reports Beware inadvertent admission of liability: Reporting Form – “Describing what happened give as much detail as you can. For instance …. the events that led to the incident …. the part played by any people … any action that has since been taken to prevent a similar incident. Use a separate piece of paper if you need to.”

30. HSE/LA Interviews Interviews without caution –Informal (notebook) chat!! –Compulsory (S. 20) – must answer questions, but protection against self-incrimination –Voluntary (s.9) – no such protection (preferred approach) Interviews under caution – PACE –Right to legal advice in private –as an individual or as a spokesperson for the company

31. Can the Report be covered by privilege? Privileged documents do not have to be disclosed to police, HSE, Coroner or PI claimants Solicitor-client communications –Relating to advice on legal duties and vulnerabilities Third party communications Dominant purpose of the Report must be the contemplation of legal proceedings

32. 32 Incident Protocol: Practical Tips – after an accident Obtain specialist legal advice to seek privilege over the report & investigation Appoint core accident team and central co-ordinator Contact insurers Secure channels of communication –use verbal methods –control of documents/e-mails Consider powers of police and HSE/LA and your rights after an incident

33. Incident Protocol: Practical Tips – after an accident Think carefully before handing over documents Check type of interview requested before agreeing – voluntary/s.20/PACE Ask for copies of statements Consider everyone who may read your report – police, HSE/LA, Coroner, claimant - avoid admissions of liability Create a public relations strategy

34. Questions? Kizzy Augustin Senior Associate Pinsent Masons LLP E: kizzy.augustin@pinsentmasons.com T: 020 7418 9573 M: 07776 151786