biggart baillie seminar to safety group fife 8 september 2008 corporate homicide – elena fry...
TRANSCRIPT
Biggart Baillie seminar toSafety Group Fife8 September 2008
Corporate Homicide – Elena Fry
progress
in force 6th April 2008
UK wide
new offence Corporate Homicide
Corporate Manslaughter and Corporate Homicide Act 2007
…So what?
Scottish Fatal Injuries Statistics 2006 / 2007
5 fatally injured members of the public
31 fatally injured workers
314 road traffic fatalities
Prosecution only a matter of time
Business involved in fatality now faces possible investigation for Corporate Homicide.
“Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised –
(a) causes a person’s death, and(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”
The Offence
Organisation – corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2))
Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c))
The Herald of Free Enterprise
“All concerned in management...were at fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.”
L.J. Sheen
“Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised –
(a) causes a person’s death, and(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”
The Offence
Organisation – corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2))
Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c))
Relevant duty of care – as employer; occupier; supplier of goods or services; construction and maintenance; any other activity on a commercial basis; use of vehicle or plant; persons held in custody. (S(2))
“Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised –
(a) causes a person’s death, and(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”
The Offence
Organisation – corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2))
Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c))
Relevant duty of care – as employer; occupier; supplier of goods or services; construction and maintenance; any other activity on a commercial basis; use of VEHICLE or plant; persons held in custody. (S(2))
Occupational Road Risk (ORR)
1. Vehicle
2. Driver
3. Journey
- company & private; roadworthy; additional safety features;
high performance.VCR;
- valid licence; comply with rules of road; DUI; mobile phones; special considerations, eg age; competence; convictions; accident history; health.
- weather conditions; enough time; breaks planned.
Assess and manage ORR just like any other risk to safety and health.
“Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised –
(a) causes a person’s death, and(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”
The Offence
Organisation – corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2))
Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c))
Relevant duty of care – as employer; occupier; supplier of goods or services; construction and maintenance; any other activity on a commercial basis; use of vehicle or plant; persons held in custody. (S(2))
Gross breach – conduct below what can reasonably be expected. (S(8))
Jury must consider evidence showing non-compliance with existing health and safety legislation and 1) how serious failing was, and 2) how much of risk of death it posed.
Jury can consider attitude, policies, systems and accepted practices likely to have
encouraged failure or tolerance of it.
Jury can have regard to guidance related to breach and any other matters considered
relevant.
N.B. Charges for breach of HSAWA and CHcan run concurrently.
Penalties/Sentencing
Publicity order
Remedial orders
No imprisonment
Unlimited fine
- 5 to 10% of turnover???
-Transco £15m = less than 1% of turnover
- Possible equity fines?
Biggart Baillie found guiltyLaw firm first to becharged under corporate killing legislation.
Biggart Baillie guilty of Corporate Homicide
BIGGART BAILLIE GUILTYBIGGART BAILLIE GUILTYBIGGART BAILLIE GUILTY
What do you do?
IOD Guidance
IOD Guidance
Plan
Deliver
Monitor
Review
• annual formal board room review;
• RAs;
• set out policy.
adequately resource; train;MS;competent H&S officer/consultant; “visibility”;suppliers/partners committed to health & safety.
• reporting; audit of staff and contractors;sickness – underlying cause?
keep up to date / ahead of best practice.
Scottish Peculiarities?
Crime devolved to Scottish Parliament
Expert Group Report 2005
Potential for separate Scottish legislation
– e.g. consultation on equity fines
(closes 1/12/08)
Act abolishes common law corporate manslaughter
– does not abolish common law corporate culpable
homicide
Scottish Peculiarities?
Corporate Homicide is here
Designed to cover all businesses and business activities
Protect by making H&S top priority
Summary
BIGGART BAILLIE GUILTY
