IOSH North East of Scotland Branch
Health, Safety & Environmental Legal Update
Willie Park
TOPICS
• CORPORATE MANSLAUGHTER/CORPORATE
HOMICIDE UPDATE
• PROSECUTION OF INDIVIDUALS
• REVIEW OF RECENT FINES & SENTENCING
TRENDS
• HEALTH & SAFETY DIVISION REPORT
• ENVIRONMENTAL REGULATORY REFORM IN
SCOTLAND
CORPORATE MANSLAUGHTER/CORPORATE
HOMICIDE UPDATE
• IN FORCE SINCE 6 APRIL 2008
• 10 CONVICTIONS TO DATE (4 TRIALS, 6 GUILTY
PLEAS)
• 2 ACQUITTALS
• 4 ONGOING CASES
– BALDWINS CRANE HIRE LTD
– HUNTLEY MOUNT ENGINEERING LTD
– McGOLDRICK ENTERPRISES LTD (NI)
– G&J CROTHERS LTD (NI)
FINES FOR CORPORATE
MANSLAUGHTER
PROSECUTION OF INDIVIDUALS
• EVIDENCE THAT THE HSE’S ENFORCEMENT
POLICY IS PLACING A GREATER EMPHASIS ON THE
PROSECUTION OF INDIVIDUALS
• PROSECUTIONS UNDER s.37 HSWA INCREASED BY
400% IN PAST 5 YEARS
• IN PRACTICE, 30-40 DIRECTORS AND SENIOR
MANAGERS ARE PROSECUTED IN THE UK EACH
YEAR
RICHARD GOLDING & CONRAD SIDEBOTTOM
• LABOURER CRUSHED TO DEATH WHILST WORKING ON A
BASEMENT EXCAVATION IN FULHAM
• SITE MANAGER AWARE SITE WAS DANGEROUS BUT TOOK
NO STEPS TO ENSURE IT WAS SAFE
• H&S ADVISOR AWARE OF THE RISKS AS HE HAD PREPARED
THE METHOD STATEMENT FOR WORK AT THE SITE
• COURT FOUND THE METHOD STATEMENT WAS INADEQUATE
• H&S ADVISOR TOOK NO ACTION EVEN THOUGH HE KNEW
THE METHOD STATEMENT WAS NOT BEING FOLLOWED AND
HE DID NOT QUESTION TEMPORARY WORKS
• JUDGE FOUND H&S ADVISOR’S EVIDENCE “LUDICROUS” AND
THAT HIS FAILURE TO DO ANYTHING WHEN ON SITE
SHOWED A “STAGGERING” DISREGARD TO PEOPLE
WORKING ON THE SITE
RICHARD GOLDING & CONRAD SIDEBOTTOM
• SITE MANAGER SENTENCED TO 3 YEARS 3
MONTHS IMPRISONMENT FOR GROSS
NEGLIGENCE MANSLAUGHTER
• H&S ADVISER SENTENCED TO 9 MONTHS
IMPRISONMENT FOR FAILING TO TAKE
REASONABLE CARE FOR PERSONS WHO MAY BE
AFFECTED BY HIS ACTIONS OR OMISSIONS AT
WORK – s.7 HSWA
DEREK BARNES & Paddle Ltd
•
Derek Barnes, Director, Paddle Ltd
•
Fined £32,000 plus £11,000 in costs,
and sentenced to eight months
imprisonment suspended for two
years and disqualified from acting as
a director for three years.
•
July 2013 plea of guilty to s37 relating
to 2 working at height incidents:
•
August 2011: Injury after 4 metre fall
from badly constructed scaffolding being used for excessive loads
•
March 2012: Worker standing in the elevated bucket of an excavator at the
same site. A concerned householder took a photograph and told HSE.
•
Company fined £56,000 plus £11,000 costs.
RECENT FINES
• PNT CONTRACTORS LTD & PAUL CONNOLLY
– PAUL CONNOLLY WORKING ON EXCAVATION
SITE WHEN SIDES COLLAPSED ON HIM
– SIDES OF UP TO 2.5m UNSUPPORTED
– PNT CONTRACTORS FINED £15,000 FOR
BREACHING CDM REGULATIONS
– PAUL CONNOLLY FINED £15,000
RECENT FINES (cont)
• GLENHOLME NURSERY
– EMPLOYEE WORKING ALONGSIDE A MACHINE FOR
GATHERING UP FIBRE SHEETING FULL OF VEGETABLES
AND PLANT WASTE
– EMPLOYEE “TENSING” THE SHEET AND FEEDING IT INTO
MACHINE WHEN GLOVE BECAME ENTANGLED ON SHEET
– LEFT ARM SEVERED WHEN DRAGGED INTO MACHINE
– INVESTIGATION REVEALED UNGUARDED PART OF
MACHINE NOT IDENTIFIED AS A RISK
– NO SAFE SYSTEM OF WORK IN PLACE AND DANGEROUS
WORKING PRACTICE HAD DEVELOPPED
– COMPANY FINED £18,000
RECENT FINES (cont)
• WESTFIELD SHOPPINGTOWNS LTD
– SUBCONTRACTORS WORKING ON INSTALLATION OF NEW
AIR CONDITIONING UNITS CARRYING OUT FINAL CHECK
BEFORE CHRISTMAS BREAK
– FOUND TWO SECTIONS OF DUCT NOT SECURELY LASHED
DOWN SO UNTIED THEM BEFORE SECURING FIRMLY
– ONE CONTRACTOR STEPPED BACK AND FELL THROUGH
AN UNPROTECTED GAP
– BROKEN AND DISLOCATED SHOULDER
– FALL COULD EASILY HAVE BEEN AVOIDED WITH EDGE
PROTECTION AROUND THE GAP
– FINED £10,000
RECENT FINES (contd)
• DF CLARK BIONOMIQUE
– ECOLOGIST SURVEYING LOFT SPACE FOR WILDLIFE IN
DERELICT HOSPITAL BUILDING
– FELL 4m THROUGH A LOFT HATCH TO A CONCRETE
FLOOR
– FRACTURED VERTEBRA IN NECK & BACK BRACE FOR
THREE MONTHS
– COMPANY ENGAGED TO SURVEY SITE WHILST BEING
SOLD FOR REDEVELOPMENT
– COURT FOUND THE ASSESSMENT WAS TOO GENERAL
AND NOT TAILORED TO THE SITE
– FINED £12,000 FOR BREACHING s.2(1) HSWA & r.4 WAHR
RECENT FINES (contd)
• FLEXITALLIC LTD
–
–
–
–
–
–
–
–
INDUSTRIAL OVEN USED TO BAKE GASKET SHEETS AND REMOVE FLAMMABLE
PARAFFIN THAT USED IN MANUFACTURING PROCESS
OPERATORS PUT A PACK OF SHEETS PUT INTO OVEN UNAWARE THAT THEY WERE
ONLY PARTIALLY DRY
VAPOURS IGNITED WHEN MADE CONTACT WITH ELECTRICAL HEATING ELEMENTS
CAUSING A FLASHOVER AND THEN A FLASHBACK
DRYING PROCESS HAD BEEN OUTSOURCED AND THEN TAKEN BACK WHICH HAD
CAUSED DISRUPTION
INSTRUMENTATION ON THE DRIER HAD FAILED AND NOT BEEN REPAIRED
DRIER WAS KNOWN TO CUT OUT
“THE INGREDIENTS OF AN ACCIDENT WAITING TO HAPPEN”
FINED £10,000
New Health & Safety and Corporate
Manslaughter Sentencing Guidelines
•
Sentencing Council’s consultation on draft guideline for health and safety
offences, corporate manslaughter, food safety and hygiene offences.
•
Consultation began on 13 November and runs until 18 February 2015.
•
Comments can be submitted via: https://consult.justice.gov.uk/sentencingcouncil/health-and-safety-offences-guidelines
•
Sentencing Council is seeking views on: the scope of each guideline; the
overall approach proposed to sentencing organisations and individuals for
these offences; the principles of sentencing in this area; and, the sentences
that should be passed for health and safety, corporate manslaughter and
food safety offences.
New Health & Safety and Corporate
Manslaughter Sentencing Guidelines
•
‘The guidelines are being introduced due to a lack of comprehensive
guidance for sentencers in relation to these offences. While there is a
guideline covering corporate manslaughter and fatal health and safety
offences, there is no specific guidance on non-fatal health and safety
offences.’
•
Existing guidance only covers offences committed by organisations rather
than individuals. This marks the first time that guidelines will cover all the
most commonly sentenced health and safety offences.
•
‘The review of guidelines is taking place in part due to concerns that some
sentences imposed for these offences have been too low, particularly in
relation to large organisations convicted of the most serious health and
safety offences.’
New Health & Safety and Corporate
Manslaughter Sentencing Guidelines
•
Headline Grabbers
•
Fatal health and safety offences committed by ‘Large Companies’
(£50million + turnover) could carry fines of up to £10million!!
•
‘Large Companies’ (£50 million + turnover) found guilty of corporate
manslaughter could face fines of up to £20million!!
New Health & Safety and Corporate
Manslaughter Sentencing Guidelines
•
Michael Caplan QC, a member of the Sentencing Council, said: “We want to
ensure that these crimes don’t pay. They can have extremely serious
consequences, and businesses that put people at risk by flouting their
responsibilities are undercutting those that play by the rules and do their
best to keep people safe.”
•
“Our proposals will help ensure a consistent approach to sentencing,
allowing fair and proportionate sentences across the board, with some of
the most serious offenders facing tougher penalties. We want to make sure
it is clear that it will be cheaper to comply with the law than break it. This is
a consultation: we want people to give us their views on our proposals so
sentencing in this area is fair, effective and proportionate.”
The Guidelines objectives
• Punishment – penalty to reflect seriousness and financial
circumstances of the offender
• Remove any economic gain derived from the offence
“the fine should be sufficiently substantial to have a real
economic impact”
The proposed approach
• Step one – Determine offence category: harm and
culpability
• Step two - Starting point – is the company micro, small,
medium or large (or very large) based on turnover
• Step three – is proposed fine proportionate
• Step four – consider other factors that might require
adjustment – e.g. Impact on employees and service
users
• Plus others – including credit for guilty plea
Categories of organisation
• Based on turnover - very important for calculating fines
– Micro – not more that £2m
– Small – Between £2m and £10m
– Medium - £10-£50m
– Large - £50m and above
– Very large companies – may be necessary to move
outside the proposed range to ensure the fine is
proportionate
Categories of harm
•
•
•
•
•
•
•
•
•
Level A – most serious
Death
Physical or mental impairment resulting in lifelong dependency
Reduced life expectancy – does that include all asbestos exposures?
Level B
Physical or mental impairment not caught by A which has a long term
substantial & long term effect to carry out day to day activities/return to work
Progressive, permanent or irreversible condition
Level C – everything else
Required to link these to likelihood of harm high/medium/remote and then
place into categories 1-4 – 1 the most serious
Culpability - High
• Level of culpability extremely important
• Very High = “deliberate breach of or flagrant disregard
for the law”
• High = Offender fell far short of the appropriate standard;
for example,
– Failing to put in place measures that are recognised standards
in the industry
– Ignoring concerns raised by employees or others
– Failing to make appropriate changes following prior incidents
– Allowing breaches to subsist over a long period of time
Lower culpability
• Medium = “offender fell short of the appropriate standard
in a manner that falls between “high and low””
• Low – Offender did not fall far short of appropriate
standard; for example,
– Significant efforts were made to address the risk
although they were inadequate on this occasion
– There was no prior event or warning indicating a risk
to health and safety
What might some fines look like
•
•
•
•
Large company
Very high culpability/Harm
Starting point £4m – range £2.6m to £10m
Medium culpability/harm – starting point £130K – range
£50k - £350K
• Corporate manslaughter – Starting point - £7.5m – range
£4.8m - £20m
• NB – there are also sentencing guidelines for individuals
with custody thresholds set at “neglect”
Mitigating v Aggravating features
• Aggravating
–
–
–
–
–
–
Cost cutting
Breach of an order
Obstruction of justice
Poor health and safety record
Falsification of records
Deliberate failure to obtain a
licence
– Exploiting victims
• Mitigation
– No previous convictions or no
relevant/recent convictions
– High level of co-operation
beyond what would always be
expected
– Good health and safety record
– Effective health and safety
procedures in place
– Self reporting, co-operation
and acceptance of
responsibility
HEALTH & SAFETY DIVISION REPORT
• INSPECTORATE OF PROSECUTIONS IN SCOTLAND
– SPEED UP PROSECUTIONS
– CONSIDER MORE PROSECUTIONS ON
SUMMARY COMPLAINT
– CLARITY AROUND WHICH CASES WILL BE DEALT
WITH BY THE HSD
Scope of environmental law?
• Environmental law covers a wide range of topics, including
contaminated land, waste, water, sewerage, air pollution, noise,
smells, animal by-products, radioactive substances, asbestos,
sustainability and energy use
• It is primarily statute based, with each statute creating a regulatory
regime with a defined public agency regulator
• But don’t forget common law remedies for private disputes such as
contractual remedies, nuisance or tort (delict)
• Also remember Director & Officer liability
ENVIRONMENTAL REGULATION –
WHO REGULATES WHAT?
But don’t forget others including…
Approach to Enforcement: Scotland
•
“Toughening up”
•
Different structure: regulator/police plus Procurators Fiscal and Crown Office
•
Increasingly risk-based approach to regulation
•
Major changes underway
– Regulatory Reform (Scotland) Act 2014
– Enforcement toolkit consultation due this summer:
• FMPs
• VMPs
• Enforcement undertakings
• Civil standard of proof
• New offence: causing significant environmental harm
• Compensation orders
• Publicity orders
Scotland – new duties, new permits
• “In exercising its regulatory functions, each regulator must contribute
to achieving sustainable economic growth, except to the extent that
it would be inconsistent with exercise of those functions to do so”
• Single permitting system
• Power for regulators to write the procedure and set what is covered
by permits and registrations
• Permitting hierarchy and proportionality:
– permit
– registration
– notification
– GBRs
Any Questions?
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