DEATH AT WORK – CRIMINAL LEGAL
CONSEQUENCES
Alan Millband
Partner – Health, Safety and Environmental Lawyer
Howes Percival LLP
Death at work – criminal legal consequences
Investigation
Work-Related Deaths Protocol
“Since its introduction in 1998,
the protocol has become a tried
and tested approach to effective
liaison between the signatory
organisations when investigating
a work-related death. All eight
signatory organisations recognise
the need for investigating and
prosecuting authorities to engage
with each other and to share
information and best practice”.
Death at work – criminal legal consequences
A “work-related death” for the purposes of WRPD?
A work-related death is a fatality resulting from an incident arising out
of, or in connection with, work. The principles set out in this protocol
also apply to cases where the victim suffers injuries in such an incident
that are so serious that there is a clear indication, according to medical
opinion, of a strong likelihood of death.
The police: will conduct an investigation where there is an
indication of the commission of a serious criminal offence (other
than a health and safety offence).
HSE (or other safety enforcing authority): investigates possible
health and safety offences.
Death at work – criminal legal consequences
Who takes charge under WRDP?
Where investigation gives rise to a suspicion that a serious criminal
offence (other than a health and safety offence) may have caused
the death, the police will assume primacy for the investigation.
Where it becomes apparent during the investigation that there is
insufficient evidence that a serious criminal offence (other than a
health and safety offence) caused the death, the investigation
should be taken over by the enforcing authority.
Police can resume primacy where new evidence of a serious
criminal offence emerges.
Coroner’s intervention, judicial review and other legal proceedings
can result in further consideration of the evidence.
Death at work – criminal legal consequences
Police powers Derive (mostly) from the Police and Criminal Evidence Act 1984
Power of arrest
HSE Inspector’s powers Set out in section 20 Health and Safety at Work etc Act 1974
No power of arrest
Death at work – criminal legal consequences
Out of interest, who would you rather have crawling all
over you?
Death at work – criminal legal consequences
Out of interest, who would you rather have crawling all
over you?
Death at work – criminal legal consequences
Typical investigation scenario
Arrival at premises
Scene preservation and inspection (measurements, photos, etc
Witnesses interviewed and re-interviewed
Documents and other materials seized
Enforcement notices
Interviews under caution (PACE interviews)
Decision
Quick discussion – what effect does all the above have on
the organisation?
Death at work – criminal legal consequences
The Coroner’s investigation into a death
The Inquest is only a part of the investigation
Violent/unnatural death – opening and adjourning the Inquest
Coroners Act 2009 section 5(1) – matters to be ascertained:
(a) who the deceased was; (b) how, when and where the deceased came
by his or her death; (c) the registration particulars
Under the Act must suspend investigation where someone may be charged
with a homicide or related offence
The Coroners (Inquests) Rules 2013
Pre-Inquest Review Hearings (rule 6)
Self-incrimination (rule 22)
Adjournment where likely homicide (rule 25(4))
Death at work – criminal legal consequences
The Coroner’s investigation into a death - continued
The Inquest
Rule 8 dilemma (conclude within 6 months of death or as soon as
reasonably practicable after that date)
Section 7 – jury required (death by accident etc reportable to Government
department/Inspector)
What goes on?
What’s the significance?
Relevance of the conclusions
Conclusions
2009 Act Schedule 5 para 7 – duty to report to prevent future risk of death
(and rules 28 and 29 stipulations regarding response)
Death at work – criminal legal consequences
The decision to prosecute –
CPS involvement
Serious criminal offence(s) (i.e. homicide) or health
and safety offence(s)
Code for Crown Prosecutors
Evidential test
sufficient evidence to provide a realistic prospect of conviction
against each suspect
Public Interest test
where there is sufficient evidence to justify a prosecution,
prosecutors must go on to consider whether a prosecution is
required in the public interest
Death at work – criminal legal consequences
Offences
Either way or Indictable
Corporate Manslaughter/Homicide
Gross Negligence Manslaughter
Health and safety offences
Directors and senior managers/officers
Employees
Death at work – criminal legal consequences
Definitive Sentencing Guideline
24. The offence of corporate manslaughter,
because it requires gross breach at a senior
level, will ordinarily involve a level of
seriousness significantly greater than a
health and safety offence. The appropriate
fine will seldom be less than £500,000
and may be measured in millions of pounds.
25. The range of seriousness involved in health and safety offences is greater
than for corporate manslaughter. However, where the offence is shown to
have caused death, the appropriate fine will seldom be less than £100,000
and may be measured in hundreds of thousands of pounds or more.
Death at work – criminal legal consequences
Penalties on conviction for health and safety offences –
Magistrates’ Courts
Fine - up to £20,000 (£5,000 section 7 HSWA)
Prison – usually up to 12 months
Crown Court
Fine- no upper limit
Prison – up to 2 years
Prosecution costs
Death at work – criminal legal consequences
Corporate Manslaughter/Homicide –
The way in which the body corporate’s activities were
managed or organised Caused the death
Amounted to a gross breach of the relevant duty of care
The role of senior management in the breach was substantial
(failings = collective)
As at 31.X. 14 – 7 convictions (2 after trial); 2 acquittals; 4 more
kicking-off
Nearly 150 cases considered by CPS between 2011 and 2013
Nearly 50 active cases at present
Death at work – criminal legal consequences
Gross Negligence Manslaughter –
Breach of duty of care
Gross breach
Significant cause of the death
Its place alongside other charges
Death at work – criminal legal consequences
Sentencing in action – what do the courts take into
account?
The SGC Definitive Guideline
The circumstances in which the offending took place
The gravity of the offence
The means of the offender
Aggravating features
Mitigating features
Death at work – criminal legal consequences
Optional extras –
Remedial orders
- Put it right
Publicity orders
- Princes SC – powerboat mag
- Mobile sweepers – 2 local papers
Bad press/PR generally
Loss of faith
- Internal and external
Death at work – criminal legal consequences
Some fines Corporate manslaughter
Cotswold Geotechnical Holdings - £385,000
JMW Farms Ltd (Co. Armagh) - £187,500
Lion Steel Equipment Ltd - £480,000
Health and Safety Offences
Transco (re Larkhall gas blast) - £15,000,000
Balfour Beatty (re Hatfield) - £13,500,000
Thames Trains (Ladbroke Grove) - £2,000,000
Death at work – criminal legal consequences
Consequences of health and safety non-compliance –
Harm
Disruption
Investigation
Enforcement action
Legal action (criminal and civil)
Reputational damage
Other and “hidden” costs
Death at work – criminal legal consequences
“Hidden” costs ?
Legal defence fees
Increased insurance premiums
Reputation
Lost opportunity
Loss of production
Payments to deceased’s family
Time devoted – from incident to endgame
Death at work – criminal legal consequences
Before we get to your turn, we have a question. If you
had to, which of these would you choose?
A. Eat the contents of this –
B. Drink the contents of this –
C. See next slide -
Death at work – criminal legal consequences
Tell these people you killed the person they loved most in
the world?
Death at work – criminal legal consequences
You’ve heard about the consequences – now go back to
work and double your efforts to prevent them………
Any questions?