Biggart Baillie seminar to Safety Group Fife 8 September 2008 Corporate Homicide – Elena Fry progress

 in force 6th April 2008  UK wide  new offence Corporate Homicide Corporate Manslaughter and Corporate Homicide Act 2007 …So what?

Scottish Fatal Injuries Statistics 2006 / 2007  5 fatally injured members of the public  31 fatally injured workers  314 road traffic fatalities Prosecution only a matter of time Business involved in fatality now faces possible investigation for Corporate Homicide.

“Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised – (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased” The Offence Organisation – corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2)) Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c))

The Herald of Free Enterprise

“All concerned in management...were at fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.” L.J. Sheen

“Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised – (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased” The Offence Organisation – corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2)) Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c)) Relevant duty of care – as employer; occupier; supplier of goods or services; construction and maintenance; any other activity on a commercial basis; use of vehicle or plant; persons held in custody. (S(2))

“Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised – (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased” The Offence Organisation – corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2)) Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c)) Relevant duty of care – as employer; occupier; supplier of goods or services; construction and maintenance; any other activity on a commercial basis; use of VEHICLE or plant; persons held in custody. (S(2))

Occupational Road Risk (ORR) 1. Vehicle 2. Driver 3. Journey - company & private;roadworthy;additional safety features; high performance.VCR; - valid licence;comply with rules of road;DUI;mobile phones; special considerations, eg age; competence;convictions; accident history;health. - weather conditions;enough time;breaks planned. Assess and manage ORR just like any other risk to safety and health.

“Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised – (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased” The Offence Organisation – corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2)) Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c)) Relevant duty of care – as employer; occupier; supplier of goods or services; construction and maintenance; any other activity on a commercial basis; use of vehicle or plant; persons held in custody. (S(2)) Gross breach – conduct below what can reasonably be expected. (S(8))

 Jury must consider evidence showing non- compliance with existing health and safety legislation and 1) how serious failing was, and 2) how much of risk of death it posed.  Jury can consider attitude, policies, systems and accepted practices likely to have encouraged failure or tolerance of it.  Jury can have regard to guidance related to breach and any other matters considered relevant. N.B. Charges for breach of HSAWA and CH can run concurrently.

Penalties/Sentencing  Publicity order  Remedial orders  No imprisonment  Unlimited fine - 5 to 10% of turnover??? -Transco £15m = less than 1% of turnover - Possible equity fines?

Biggart Baillie found guilty Law firm first to be charged under corporate killing legislation.

Biggart Baillie guilty of Corporate Homicide

BIGGART BAILLIE GUILTY

What do you do?

IOD Guidance

 Plan  Deliver  Monitor  Review annual formal board room review; RAs; set out policy. adequately resource; train;MS; competent H&S officer/consultant; “visibility”; suppliers/partners committed to health & safety. reporting; audit of staff and contractors; sickness – underlying cause? keep up to date / ahead of best practice.

Scottish Peculiarities?

 Crime devolved to Scottish Parliament  Expert Group Report 2005  Potential for separate Scottish legislation – e.g. consultation on equity fines (closes 1/12/08)  Act abolishes common law corporate manslaughter – does not abolish common law corporate culpable homicide Scottish Peculiarities?

 Corporate Homicide is here  Designed to cover all businesses and business activities  Protect by making H&S top priority Summary

BIGGART BAILLIE GUILTY

progress Questions? Elena Fry, Partner T: E: