alan millband partner – health, safety and environmental lawyer howes percival llp death at work...

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.


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.


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


Out of interest, who would you rather have crawling all over you?


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?


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))


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)


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


Offences

Either way or Indictable

Corporate Manslaughter/Homicide

Gross Negligence Manslaughter

Health and safety offences

Directors and senior managers/officers

Employees


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.


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


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


Gross Negligence Manslaughter –

Breach of duty of careGross breachSignificant cause of the death

Its place alongside other charges


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


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


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


Consequences of health and safety non-compliance –

HarmDisruptionInvestigationEnforcement actionLegal action (criminal and civil)Reputational damageOther and “hidden” costs


“Hidden” costs ?

Legal defence feesIncreased insurance premiumsReputationLost opportunityLoss of productionPayments to deceased’s familyTime devoted – from incident to endgame


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 -


Tell these people you killed the person they loved most in the world?


You’ve heard about the consequences – now go back to work and double your efforts to prevent them………

Any questions?


alan millband partner – health, safety and environmental lawyer howes percival llp death at work...

Documents

death c

criminal evidence

serious criminal offence

power of arrest death

strong likelihood of

coroners investigation

legal proceedings

safety offences