Legal Matters Plexus Health and Safety May 2013
Corporate manslaughter - Five years on
The scope of the Act has yet to be
It is now five years since the Corporate
of fundamental elements within the
Manslaughter and Corporate Homicide Act came into force on 6 April 2008.
properly tested and we wait to see how the courts will interpret a number legislation. We are unlikely to get any
clear indication of this until a large
The Act was introduced to overcome
company finds itself in the dock.
the seemingly impossible task facing
The offence is set out in the Act in the
the Crown Prosecution Service of linking the actions of a ‘directing mind’ of a large organisation to the death of the employee or member of the public. The
investigation
and
subsequent
public enquiry into the Zeebruge ferry disaster in 1987 highlighted the problems facing a prosecuting authority in bringing common law manslaughter
following way; “an organisation is guilty
of an offence….only if the way in which
its activities are managed or organised by senior management is a substantial
element of the breach”. The reference
to senior management appears to restrict the scope. Senior management
is defined as “the persons who play significant roles in (i) the making of
charges against large organisations.
decisions about how the whole or
The Ministry of Justice forecast there
activities are to be managed or
would be 10 prosecutions a year when the Act came into force. There have in fact been seven prosecutions brought under the Act. Three of those have resulted in convictions and four are ongoing, including most recently a
substantial parts of the organisation’s
organised or (ii) the actual managing or organising of the whole or substantial
part of those activities”. As such, the prosecutor must prove the actions of
an organisation’s senior management
were a substantial element of the
prosecution involving Mobile Sweepers
breach, resulting in death.
(Reading) Limited. That company was
There are currently up to 50 cases
charged in March 2013 with killing an employee when a truck he was working underneath collapsed onto him. What is noticeable is that all the prosecutions to date involve small or medium-sized companies. Most, if not all, of these prosecutions could have been brought under the former
being for
a
investigated
with
potential
prosecution
for
corporate
manslaughter. This includes a number of larger and well-known companies. While things may change, the current landscape
suggests
the
Crown
Prosecution Service does not have an appetite to bring prosecutions for
common law offence of corporate
corporate manslaughter against large
manslaughter.
companies or has yet to find the right
In this issue Corporate manslaughter – five years on The price of innocence – drastic changes to costs in criminal cases HSE v Merlin Attractions Operations Limited Packaging company fined £220k for failing to train employees Double conviction for Network Rail Tata Steel UK admits further health and safety breaches
case. Any such prosecution would attract widespread media attention.
It is also likely that the cost of prosecuting a large company will be
significantly greater than we have seen so far.
Whilst courts are no longer
able to award companies their costs following success at trial (see below), an unsuccessful prosecution may well have significant consequences for the
CPS in bringing further cases before the court.
For the time being the prosecuting authorities appear content to bring prosecutions under the Health & Safety
at Work Act and related regulations. Following
the
Health
&
Safety
(Offences) Act and the introduction of
sentencing guidelines for health and safety offences involving fatalities, a solvent company found to have caused death as a result of health and
safety breaches will rarely be given a fine of less than £100k. Very large
corporations with a healthy balance sheet could in future be looking at seven figure fines.
It is likely the Crown Prosecution Service will continue to cherry pick
offences. The scope and effectiveness
of the Corporate Manslaughter Act in relation to larger companies will not be
determined until the CPS finds a case
it is willing to prosecute and put before the courts.
widespread
opposition,
drastic changes to costs in criminal
02
of October 2012. Prior to this, if an
individual or company was privately represented
and
successfully
defended a prosecution, they were entitled to a defence costs order. A defendant’s costs would then be
payable out of central funds, subject to taxation.
Six months on, where are we now?
Implications for individuals To illustrate the current position, imagine in
you
trouble
have
with
unexpectedly
the
you
never law.
are
been
Quite
arrested
and taken to a police cell. You are subsequently charged with a serious
offence for which you are entirely innocent.
You have the following scenarios to consider:
The regulations In simple terms, if acquitted in the
Magistrates’ Court, a non corporate defendant will be entitled to recover
costs under a defence costs order, limited to legal aid rates.
1. Pay privately for your solicitor of choice, an expert in the field. You
are suspended from work due to the allegations. With no income you have to remortgage your house to pay for legal fees. You are acquitted a year
If represented privately, successful
later. You have lost your house and
not be entitled to recover any of their
2. Obtain legal aid once your case
defendants in the Crown Court will legal costs.
your family are homeless.
is in the Crown Court. If you have
It seems counterintuitive that those
a disposable income of more than
cannot recover costs if acquitted, but
£30,000 you will have to make a
can. The original rationale to this
will you receive; how much work
in the Crown Court will be entitled
experienced will your solicitor be;
subject to a contribution.
how your case is run? With the future
charged with the most serious crimes
£3,398 or assets worth more than
those charged with low level crimes
contribution. What type of service
policy position is that all defendants
will be done on your case; how
to legal aid whatever their means,
how much say will you have over
However,
this
week
the
Lord
Chancellor, Chris Grayling, the first non-lawyer since 1672 cast further doubt on this rationale and in turn
The price of innocence Despite
cases came into force on the 1st
the sustainability of quality in the criminal justice system. He plans to save a further £2bn from the legal aid bill in England and Wales.
of legal aid hanging in the balance, it is difficult to say. Price tendering The present consultation and future
of the criminal justice system is based on price tendering. Bids will
be invited for work nationwide. Put simply, only firms able to handle
very high volumes of cases with low overheads will succeed in winning contracts. Quality will play no part in
the process. Is the result a two-tiered legal system? One for those who can afford their own private expert representation and one for those who
have to rely upon the cash strapped state spending the bare minimum.
companies pleading guilty for purely
economic reasons? Although many
HSE v Merlin Attractions Operations Limited
companies have insurance policies
The owner of Legoland has been fined
that cover the costs of defending
£35k after admitting twice breaching
certain types of criminal proceedings,
Regulation 4(1) of the Work at Height
many will not have the benefit of cover
Regulations.
for defence costs. The cost of fighting
In June 2011, a repair worker employed
Does this mean we will we see more
a trial may be too great a drain on company resources.
Impact on businesses
by the company was badly injured
when he fell from a roller coaster after
Businesses will need to assess what
having removed his lanyard.
upon them in monetary terms and
team
The
One major implication of the changes
effect a criminal conviction could have
incident happened as a maintenance
charged with the most serious offence
consider insuring against those risks.
coaster trains from the Dragon Coaster
be able to recover any costs in either
Insurers
moved into a siding to be repaired but
is that corporate bodies, which can be of corporate manslaughter, will not jurisdiction.
The government appears to expect
companies to take out additional insurance to guard against this risk. This raises the question of equality of arms.
There
are
huge
implications
for
insurers who may find they settle
claims on the back of guilty pleas in cases which evidentially could have been litigated.
If a business is prosecuted and found
For those insurers who cover defence
trial in the Crown Court, only wasted
and could run into the hundreds of
recovered. However, if a business
in policy premiums?
not guilty after a lengthy and costly
costs, they will be unrecoverable
costs incurred during the trial can be
thousands. Will we therefore see a rise
pleads guilty, the prosecution authority will be entitled to the costs of the
investigation and court proceedings. On the face of it, this seems grossly unfair.
Another recent example is the case of Chris Huhne and Vicky Pryce. The
Crown is seeking to recover its costs
of over £110k, £38,544 of that amount
attributable to Vicky Pryce. It seems likely both will be made to pay a
contribution. If Vicky Pryce had been acquitted, under the current regime she would not be entitled to recover any of her legal costs.
of costs in criminal cases will have consequences
two
damaged
roller
ride’s track. Normally, trains would be because the wheels were damaged the engineers planned to lift the trains with a
telehandler. The operation was outside their normal expertise.
There was a
method statement for the job which
specified workers should wear full body harnesses and lanyards. It was found by
the HSE during the investigation that as the repair workers tied lifting strops round
the carriages, the lanyards got tangled so they took them off.
These changes to the recoverability far-reaching
removed
for
individuals, companies and insurers.
The workers had lifted most of the train
from the track when a wheel became caught. They removed a section of the walkway to free the wheel and then put
Planning for the future is essential.
it back. A worker stepped onto it while it
“Businesses will need to assess what effect a criminal conviction could have upon them in monetary terms and consider insuring against those risks.”
ground, breaking his shoulder and several
was unsecured. He fell 3.5 metres to the
ribs. It emerged during the investigation that workers returned to finish the job the
next day and worked in the same way without full protection.
Merlin Attractions Operations Limited were
prosecuted
following
an
03
investigation by the HSE and pleaded
and the basic nature of the failings.
know how to use the relevant software
the Work at Height Regulations at
£19,308 costs.
directory which contained information for
guilty to two separate offences under Reading Magistrates Court.
Packaging company fined £220k for failing to train employees Smurfit
packaging
Kappa,
the
company
specialist
has
been
fined £220k plus costs following an accident involving a power press at
its Whitehaven factory. The purpose of the power press was to stamp out metal lids. These were used to close the ends of cardboard tubes to protect whiskey bottle tubes. The operation of
the press involved up to 35 tons of pressure upon the metal. A 25 yearold employee of the company who worked on the press was changing
part of the machinery. He was in the
process of testing it to make sure it would produce the correct sized lid.
As he reached under the pressing tool to remove a lid, it stamped on his
hands. As a result he lost four fingers and was off work for 10 months. He continues to have ongoing disability.
Smurfit Kappa UK pleaded guilty to an offence contrary to Section 2 (1) of the
Health & Safety at Work Act 1974. The
judge accepted that the operator’s training had not been recorded and it wasn’t clear what training he had had and how thorough it had been.
The supervision he was receiving was insufficient as those supervisors
did not know anything about setting presses. The judge assessed the fine based upon the size of the company
The company was also ordered to pay
Double conviction for Network Rail Network Rail has been convicted twice in a month for separate safety
failings which led to the death of one
worker and serious injury to another. On 26 February 2013, state owned
Network Rail Infrastructure was fined £100k and £25k costs after pleading guilty in November 2012 to breaching Sections 2(1) and 3(1) of the Health & Safety at Work Act.
In March 2010 an employee was
seriously injured while repairing track at Cheshunt Junction in Hertfordshire.
He had moved to what he thought was
a safe spot to let an approaching train
pass, but was it diverted onto the line where he was standing and hit him.
properly and did not consult the hazard
track workers. As such there was no safe system of work for the repairs.
The second prosecution involved the
death of an employee Liam Robinson
on 30 September 2003 as he carried out routine maintenance on a Network Rail owned track mounted stone blower,
a machine used to inject ballast under sleepers. He was working inside the
machine when a voltage surge caused it to move and he became trapped. The matter was investigated by the ORR.
Work should only have commenced on
the track once the blower’s engine had
been switched off and the hydraulic system depressurised. The ORR found
it was established practice to keep the engine running during maintenance work.
Network Rail was fined £200k with £140k
costs after pleading guilty to a breach
of Section 3(1) of the Health & Safety
The incident was investigated by the
at Work Act and Regulation 11 of the
Crown Court heard that unqualified
The contractor engaged by Network Rail
Officer of Rail Regulation. St Alban’s
Provision and Use of Work Regulations.
staff had not properly planned the
was also fined £118,123.
work, which had been scheduled when trains were still running and
put workers in unnecessary danger. Tom Wake, of the ORR, said the management and planning for track
maintenance at Cheshunt Junction
was “not good enough” and a number of resulting failures had caused the accident. The work could have been
done at night. The depot responsible had decided to do the work during the
“Network Rail has been convicted twice in a month for separate safety failings which led to the death of one worker and serious injury to another.”
day as it was busy with other work.
The person controlling the work did not 04
Tata Steel UK admits further health and safety breaches
arising
Steel manufacturer Tata Steel and a
on a neighbouring site a couple
from
fatal
accidents.
The HSE’s inspection found that this
was not an isolated occurrence and
specialist contractor have been fined a total of £320k for safety failings after a worker was killed by a falling metal bar.
Tata had experienced falling material of years earlier.
There were also
defective mesh guards at the 30 metre working level within the furnace, an issue previously raised by Vesuvius to
Kristian Lee Norris, an employee of
Vesuvius UK Ltd was in the process of re-lining a steel making furnace
Tata. Vesuvius UK was fined £200k plus £24,020 in costs. Tata Steel was fined £120k and £24,020 costs.
at Teesside Cast Products when the accident occurred on 12 April 2008.
He was hit on the head by a two-foot metal bar that fell approximately 10
metres from a passenger and goods lift overhead.
An investigation by the Health & Safety Executive found precautions
to control risks from falling tools and other materials were “wholly insufficient
and
sorely
lacking”.
The failings identified applied to
Vesuvius and Tata Steel UK, which
then owned Teesside Cast Products.
Both companies were aware of these failings prior to the accident and
pleaded guilty to offences under
Regulation 10 (1) of the Work at Height Regulations.
Judge Peter Armstrong accepted
Tata’s denial that its breach directly caused Mr Norris’ death.
He
sentenced the company on the basis of the potential for fatal injury arising from the breach. The judge
commented that Tata had a poor safety record prior to this incident including eight previous convictions
If you have any queries or suggestions for future issues, please email: Peter James Partner T: 0844 245 5319 E: peter.james@plexuslaw.co.uk Hayley Betteridge Associate Partner T: 0844 245 4678 E: hayley.betteridge@plexuslaw.co.uk Karen Scott Knowledge Management Lawyer T: 0844 245 5235 E: karen.scott@parabis.co.uk
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