© Slater & Gordon Limited 2012 Corporate Safety Crimes Recent prosecutions following fatalities at Work Presented by: Craig McAdam 2013

Reputation & Results ™ © Slater & Gordon Limited 2012 Investigating Fatalities 1.Following a fatality ► Police ► HSE ► Coroner ► CPS ► Time Scales 2.Witnesses ► Employees ► Supervisors ► Managers ► Directors ► The Company

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 Corporate Manslaughter & Corporate Homicide Act 2007 Enacted 6 th April 2008 “A revolution in the way in which companies can and will be prosecuted

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 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?

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 The Cases Regina v Cotswold Geotechnical Holdings Ltd [2011] The Indictment 1. Gross Negligence Manslaughter - Peter Eaton 2. Corporate Manslaughter, CMCHA Cotswold 3. s2(1) Health & Safety at Work Act Cotswold 4. s37 Health & Safety at Work Act 1974 – Peter Eaton

Reputation & Results ™ © Slater & Gordon Limited 2012 The Cases Convicted Winchester Crown Court – 15 th February 2011 Leave to appeal against conviction and sentence refused by LCJ’s Court 11 th 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.”

Reputation & Results ™ © Slater & Gordon Limited 2012 The Cases Regina v JMW Farms Ltd [2012] Convicted Belfast Crown Court - 8 th 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”

Reputation & Results ™ © Slater & Gordon Limited 2012 The Cases Regina v Lion Steel Ltd [2012] Convicted Manchester Crown Court – 20 th 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”

Reputation & Results ™ © Slater & Gordon Limited 2012 Sentencing Unlimited Fine – s1(6) Remedial Order – s9 Publicity Order – s10

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 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

Reputation & Results ™ © Slater & Gordon Limited 2012 So where are we now…? To what extent are the new powers being used? What next?

Reputation & Results ™ © Slater & Gordon Limited 2012 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 (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.