Corporate Safety Crimes
Recent prosecutions following fatalities at
Work
Presented by:
Craig McAdam
2013
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Investigating Fatalities
1.
2.
Following a fatality
► Police
► HSE
► Coroner
► CPS
► Time Scales
Witnesses
► Employees
► Supervisors
► Managers
► Directors
► The Company
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The Offences
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POLICE
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Gross Negligent Manslaughter Common Law
Corporate Manslaughter and Corporate Homicide Act
2007
HSE
• HASAWA s. 2 and 3
• HASAWA s. 7 and s.37
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Corporate Manslaughter &
Corporate Homicide Act 2007
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•Enacted 6th April 2008
•“A revolution in the way in which companies can and will be
prosecuted
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Elements of the Offence
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Qualifying Organisation
Causes a Persons death
Relevant Duty of Care
Gross Breach of that Duty
Managed or Organised by Senior Management
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Qualifying Organisations
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A Corporation
A Department or Body Listed in Schedule 1
A Police Force or Government Department
A Partnership, Trade Union or Employers Association that is
an Employer
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Causation & Relevant Duty of Care
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• Gross Breach of Duty of Care by Senior Management
• More than a mere contribution to the death
• Clarification of role of Judge and Jury in Crown Court
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The Breach
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• Must fall “far below” what could reasonably be expected
of the organisation in the circumstances – s1(4)(b)
• Factors for the Jury to Consider – s8
• How serious was the breach – s8(2)(a)
• How much of a risk of death it posed – s8(2)(b)
• Other considerations – s8(3)
• Forseeability?
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Aggravating Factors
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More than one death, or very grave personal injury in
addition to death
Failure to heed warnings and advice
Failure to respond to “near misses”
Cost-cutting at the expense of safety
Deliberate failure to obtain or comply with relevant
licenses
Injury to a vulnerable person
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Mitigating Factors
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Prompt acceptance of responsibility
High level of co-operation with the investigation
Genuine efforts to remedy the defect
A good Health & Safety Record
Responsible attitude towards health & safety
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The Cases
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Regina v Cotswold Geotechnical Holdings Ltd [2011]
The Indictment
1. Gross Negligence Manslaughter - Peter Eaton
2. Corporate Manslaughter, CMCHA 2007 - Cotswold
3. s2(1) Health & Safety at Work Act 1974 - Cotswold
4. s37 Health & Safety at Work Act 1974 – Peter Eaton
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The Cases
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• Convicted Winchester Crown Court – 15th February 2011
• Leave to appeal against conviction and sentence refused
by LCJ’s Court 11th May 2011
• Fined £385,000
• “It may well be that the fine in terms of its payment will put this
company into liquidation. If that is the case it is unfortunate but
unavoidable. It is a consequence of the breach.”
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The Cases
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• Regina v JMW Farms Ltd [2012]
• Convicted Belfast Crown Court - 8th May 2012
• £187,500 Fine + £13,000 costs
• “The New Corporate Manslaughter legislation clarifies the
criminal liabilities of companies where serious failures in
the management of health and safety result in a fatality. I
would therefore urge anyone with a managerial or
supervisory role to ensure that proper management and
control systems are in place to prevent another needless
death from occurring”
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The Cases
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• Regina v Lion Steel Ltd [2012]
• Convicted Manchester Crown Court – 20th July
2012
• £480,000 Fine + £84,000 Costs
• “There was a gross breach of duty by the company... This
company, while doing something to deal with the obvious
risks, did far less than was required”
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Sentencing
• Unlimited Fine – s1(6)
• Remedial Order – s9
• Publicity Order – s10
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Unlimited Fine - Relevant Factors
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• Means of the Defendant are relevant & Court should
require financial information
• Fixed correlation between the fine & either turnover or
Profit is NOT appropriate
• Effect on the employment of the innocent MAY be relevant
• Effect on shareholders or Directors will NOT be relevant
• The likelihood of prices charged by the defendant being
raised will not ordinarily be relevant
• Effect on the provision of services to the public will be
relevant
• Liability for civil compensation is NOT relevant
• Cost of any remedial order is NOT relevant
• Whether the fine will have the effect of putting the
defendant out of business will be relevant; in some bad
cases this may be an acceptable consequence
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Actual Figures
Reputation & Results™
• Corporate Manslaughter requires a gross breach at senior
level and will ordinarily involve a level of seriousness
significantly greater than a health & safety offence
• Appropriate fine will seldom be less than £500,000 and may
be measured in millions of pounds
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Actual Figures
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• Health & safety cases will involve a far greater range of
levels of seriousness. Where the offence is shown to have
caused death however the appropriate fine will seldom be
less than £100,000 and may be measured in hundreds of
thousands of pounds or more
• In all cases defendants ought to be ordered to pay
prosecution costs
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Other Orders
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• Remedial Orders
- available for both Corporate Manslaughter & HSWA offences
- must be specific enough to be enforceable
• Publicity Orders
- available for Corporate Manslaughter only
- should ordinarily be imposed
- Court may specify the form of the announcement, a particular
newspaper and the number of insertions
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So where are we now…?
• To what extent are the new powers being used?
• What next?
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Reputation & Results™
Recent Decisions
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• S.7 – HGV Driver – - sentence to 24 week custodial
suspended for two years after reversing backwards and
fatally injuring a co worker
• General Motors – s.2 and PUWER 1998 11(1) following
fatality at the plant in July 2010 – a risk assessment in 2010
had identified a risk which wasn’t acted on - £150,000 fine
and £19,654 costs.
• Prestige Construction – worker fell through skylight –
serious spinal injuries but made a full recovery, guilty plea
to reg.6(3) of the work at height regs and reg.23(2) CDM
regs - £30,000 and £9,000 costs.
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