1. Welcome Matthew Breakell Solicitor Safety Health and Environment Team

2. What are we covering today?  Session 1 Coroners’ Inquests;  What an Inquest is and the powers of the Coroner;  Practical implications of evidence heard;  Preparing for Inquests and what can be expected.  Session 2 Preparing for Court;  Which Court will my case go before?  Decisions regarding plea;  Preparing for trial;  The new sentencing guidelines.

3. Inquests: an introduction  What is an Inquest?  Investigation into the death  Questions to be answered:  Who died  When  Where  How – twofold question  When is an Inquest required?  Violent or un-natural death  Death in custody (implications for health and police)

4. Inquests: an introduction  When is a Jury required?  Work place  Death  Notifiable  Discretion of Coroner to call  What conclusions can it reach?  Short form  Narrative  Prevention of future deaths.

5. The question of how: part 1  Medical cause of death  Post mortems  What we understand from them  Why is it important we fully understand the medical cause of death  How will this affect the conclusion

6. The question of how: part 2  A wider enquiry  How and in what circumstances  The importance of keeping how focussed  Not a question of criminal or civil liability  Protections from self incrimination  Criticism is allowed but how can it be limited  Impact on future issues.

7. Reaching a conclusion  Short form verdicts generally provide some relief to organisations  Narratives can be unpredictable and critical in some circumstances  Example of a narrative conclusion

8. Interactive session  You are a board of company directors  You have had a fatality involving a member of the public on a residential property construction site  It has attracted a lot of local and national press  The Police have indicated that they do not believe that offences of manslaughter by gross negligence or corporate manslaughter have been committed  The HSE is an interested party at the Inquest and the family is represented by a Barrister

9. Consider the following  you are a Managing Director who is going to likely be asked questions about whether you knew about short cuts the company had been taking that have resulted in the death; DO YOU ANSWER THE QUESTIONS?  At the end of the of the Inquest a narrative conclusion is reached which is critical of the company; WHAT SHOULD THE COMPANY BE PREPARED FOR?

10. Reputational damage  No right or wrong answer  Thomas Cook -v- Alton Towers, is there any right approach?  Wider implications on business continuity  Cost of an incident in the work place with either employee or non employee can no longer be measured in the value of a personal injury claim, the wider implications are much greater.

11. Let’s take a break End of session 1

12. Prosecutions  Let’s re-cap the process first:  Incident  Investigation  Witnesses etc.  Interview under caution  DECISION TIME

13. Decisions: how and why 1.The evidential test Does the prosecution have sufficient evidence by which it believes it has good prospects of success at trial.  Identification of offences  Identification of breach  Identification of supporting evidence

14. Decisions: how and why 2. The public interest test Is it in the public interest to proceed with a prosecution?  As a given it normally is, however, will be circumstances in which it wont.  How do we argue it? Is a judicial review really worth it?

15. Is all hope lost?  Absolutely not!!!  Prosecution doesn’t always understand the wider context of operations in a business, or the evidence it has collated: case study – trial we recently completed where prosecution dropped first charge on day 3 and whole case on day 12 without us needing to present our defence  Technical defences available – battle of experts?  Jury points

16. Get out of jail free cards?  Technicalities can be identified but most judges happy to correct due to over riding duty to ensure justice is seen to be done;  Galbraith;  Spain not advisable.

17. Which Court  All go to Magistrates’ first  Triggers for Crown Court  Advantages and disadvantages

18. Tactical considerations  To plead or not to plead  Why plead?  Commercial -v- legal  Future implications  Maybe a basis of plea?  Could result in a Newton hearing  Not guilty; always a risk but with no way to reclaim defence costs and sentencing due to increase dramatically are we likely to see more trials?

19. Sentencing  Lack of consistency and certainty  Old guidelines only for fatalities  Magistrates’ already have unlimited fines now  Next year the sentencing guidelines.

20. New Magistrates’ Court Sentencing Powers  Section of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 12 March 2015  Provides for unlimited fines in magistrates' courts  Prior to 12 March 2015 capped at either a statutory maximum of £5,000 or a higher amount where legislation provides for it, for example:(£20,000 for H&S offences and £50,000 for environmental offences)

21. Turnover  Brackets  Microunder £2 million  Small £2million - £10million  Medium£10million - £50million  Large over £50million  Very large – No guidance  The true financial position of the organisation  What about the public sector? Discount likely to be preserved

22. Culpability  Different criteria for organisations and individuals  Organisations  Very high – deliberate of flagrant breach  High – falling far short  Medium – fell short but not high or low  Low – minor failings, efforts to comply but not enough  Individuals  Deliberate –deliberate or flagrant disregard  Reckless – wilful blindness to risk  Negligent – reasonable care not taken  Low

23. Harm  Stage 1 – use likelihood of harm and seriousness harm risked to determine harm category  Designed to reflect that actual harm is not part of offence but exposure to risk is  Stage 2 – consider whether significant number of people exposed to risk and whether the offence was a significant cause of actual harm  If so, move up a level or up the category range

24. Harm continued  Death or serous injury as a consequence of breach will normally be category 1 because they will tend to demonstrate the type of harm risked was high  Should not move up a level if actual harm is less that harm risked  What about freak accidents?  “Actions of victims are highly unlikely to be considered contributory events.”

25. Actual case -v- potential new sentence Hugo Boss  Mirror fell on a child in a shop  Culpability - High (sentencing remarks: Obvious risk)  Harm – Must be Category 1  Turnover - £192,881,481 in 2014  Large or possibly very large because well over £50million  Actual fine £1.2million  Starting point £2.4million  Range £1.5-6 million

26. Let’s work one through together  I P Freely Breweries Ltd  Turnover £240 million  Asphyxiation in fermentation vessel  Untrained employees with no confined spaces training or breathing apparatus  Board level decision to cut contract with expert cleaning co in favour of own employees  Ignored warnings from contractor about atmosphere  Death and serious injury to rescuer

27. Now it’s your turn  New guidelines; old case  Apply the guidelines  We want to know what YOU think the Court would have to do under the new guidelines  Now here’s the shocker….

28. A brave new world  Sentencing is changing  We are seeing increasing costs, not unusual to corporate prosecutions, think about banking fines etc.  Although time to pay, in serious cases the court will not be overtly concerned about putting businesses out of business.  There is some hope, only 2 of the 12 Corporate Manslaughter cases that have been prosecuted have met or exceeded the guidelines starting point of £500,000

29. Thanks Matthew Breakell Solicitor mbreakell@dacbeachcroft.com 0113 251 4813 Charlotte Miles Solicitor cmiles@dacbeachcroft.com 0113 251 4906