Welcome
Matthew Breakell
Solicitor
Safety Health and Environment Team
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.
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)
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.
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
The question of how: part 2
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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.
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
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
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?
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.
Let’s take a break
End of session 1
Prosecutions
 Let’s re-cap the process first:
 Incident
 Investigation
 Witnesses etc.
 Interview under caution
 DECISION TIME
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
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?
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
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.
Which Court
 All go to Magistrates’ first
 Triggers for Crown Court
 Advantages and disadvantages
Tactical considerations
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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?
Sentencing
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Lack of consistency and certainty
Old guidelines only for fatalities
Magistrates’ already have unlimited fines now
Next year the sentencing guidelines.
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)
Turnover
 Brackets
 Micro
under £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
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
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
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.”
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
Let’s work one through together
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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
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….
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
Thanks
Matthew Breakell
Solicitor
mbreakell@dacbeachcroft.com
0113 251 4813
Charlotte Miles
Solicitor
cmiles@dacbeachcroft.com
0113 251 4906