Post on 16-Dec-2015
Alan MillbandPartner – Health, Safety and Environmental LawyerHowes Percival LLP
DEATH AT WORK – CRIMINAL LEGAL CONSEQUENCES
InvestigationWork-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 involvementSerious criminal offence(s) (i.e. homicide) or health and safety offence(s)Code for Crown ProsecutorsEvidential test
sufficient evidence to provide a realistic prospect of conviction against each suspect
Public Interest testwhere 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 Guideline24. 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’ CourtsFine - up to £20,000 (£5,000 section 7 HSWA)Prison – usually up to 12 months
Crown CourtFine- no upper limitPrison – 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 deathAmounted to a gross breach of the relevant duty of careThe 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 careGross breachSignificant 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 GuidelineThe circumstances in which the offending took placeThe gravity of the offenceThe means of the offenderAggravating featuresMitigating 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 generallyLoss of faith - Internal and external
Death at work – criminal legal consequences
Some fines -
Corporate manslaughterCotswold Geotechnical Holdings - £385,000JMW Farms Ltd (Co. Armagh) - £187,500Lion Steel Equipment Ltd - £480,000
Health and Safety OffencesTransco (re Larkhall gas blast) - £15,000,000Balfour Beatty (re Hatfield) - £13,500,000Thames Trains (Ladbroke Grove) - £2,000,000
Death at work – criminal legal consequences
Consequences of health and safety non-compliance –
HarmDisruptionInvestigationEnforcement actionLegal action (criminal and civil)Reputational damageOther and “hidden” costs
Death at work – criminal legal consequences
“Hidden” costs ?
Legal defence feesIncreased insurance premiumsReputationLost opportunityLoss of productionPayments to deceased’s familyTime 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