Safety health and environmental: Regulatory update Case ... · The new Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008. Old legislation –

Safety health and environmental:§ Regulatory update§ Case law update

Jennette NewmanPartner, BLM London

November 2008

SHE Update_JRN_11/08 1

1 Introduction

Overview of 2007/08

The revitalising health and safety strategy statement of the HSE, launched in June 2000, set three national targets for improving health and safety performance by 2010:

§ To reduce the incidence rate of fatalities and major injuries by 10%

§ To reduce the incidence rate of cases of work related ill health by 20%

§ To reduce the number of working days lost per worker from work related injury and ill heath by 30%; and to achieve half the improvement under each target by 2004

The HSE website provides invaluable information about work related injuries. The most recent statistics, published in October 2008, have revealed that the number of people killed at work in the UK has slightly reduced from last year when it hit its highest level in half a decade. 229 workers were killed in 2007/08 compared to 241 in the previous year.

§ The greatest losses of life came from construction sites where there were 77 fatalities and the Agricultural sector where there were 39 fatalities. Together these account for nearly half of fatal injuries to workers

§ 136,771 other injuries to employees were reported under RIDDOR. Altogether 2.1 million people suffered from illness they believed was either caused or made worse by their currentor past work. 563,000 were new cases

§ 2,056 people died of mesothelioma

§ Altogether 34 million days were lost from work on account of ill health and injury in the workplace

Live issues which the HSE are investigating actively are:

§ Protection against blood born infections in the workplace: HIV and Hepatitis;

§ A consultative document on proposals for amending the Health and Safety Information for Employees Regulations 1989;

§ A consultative document on proposals for new amending regulations about the classification, packaging, and labelling of chemicals;

§ Consultation Letter – European Commissions Proposal on dichloromethane based paint strippers;

§ Guidance on controlling the health risks associated with working with UV tanning equipment;

§ CD214 – A consultation document on proposals to amend regulations on explosives; to revoke obsolete local mining regulations; and to correct an omission in the Control of Noise at Work Regulations 2005


The new Corporate Manslaughter and Corporate Homicide Act 2007 has come into force under which senior managers will be held responsible when corporate negligence results in a fatality at work. The law leaves companies facing a criminal conviction and unlimited fines following fatal accidents if there has been a gross failure by such individuals. Coupled with the newHealth and Safety at Work (Offences) Act 2008, and the tough sentencing recommendations by the Sentencing Advisory Panel these recent pieces of legislation place additional pressure on businesses to review their existing health and safety performances, to examine their shortcomings and to take urgent action.

The amendments to the Coroners Rules are designed to usher in a more open system of inquests, allowing workplace risks and businesses health and safety policy mistakes to be learned from and their lessons applied across the relevant industry. This should not be thought of as a name and shame policy, but of course there is this possibility and therefore its underlying threat. It will also have an impact on claim defensibility arising out of a fatality where coroners have issued reports, or non-fatal accidents with similar circumstances.

Over all then the theme for this year seems to be a general toughening of the existing law along with an ever increasing move towards openness and transparency as the Government seeks to bring safety to the forefront of organisations minds.

2 Corporate Manslaughter and Corporate Homicide Act 2007The new Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008.

Old legislation – gross negligence manslaughter

Under the old law companies could only be convicted of ‘gross negligence manslaughter’ via the common law offence. Gross negligence manslaughter is a category of ‘involuntary manslaughter’ – which used to apply to both individuals and organisations. It still applies to individuals.

The leading case on gross negligence manslaughter is R v Adomako [1995].

Adomako was an anaesthetist who failed to notice for 6 minutes that the tube which supplied oxygen to the patient had become disconnected. As a result, his patient died and Adomako was convicted of gross negligence manslaughter. He appealed.

His appeal failed but the case specified a number of conditions to be satisfied for a charge of gross negligence manslaughter to succeed:-

§ First it must be shown that the defendant owed the victim a duty of care

§ The jury then must decide whether there has been a breach of that duty

§ It must then be shown that the defendant’s breach of duty caused the victim’s death

§ The jury must then decide if the defendant’s breach of duty was gross. They should ask themselves whether the defendant’s failures were so bad as to deserve a criminal conviction


To deal with the issue of corporate liability where there was a separate corporate legal entity the House of Lords developed the ‘identification principle’ (Tesco v Nattress [1972]). According to this principle an individual’s actions could be regarded as those of the Company (and used to convict a company) but only if he has sufficient standing within the Company to be regarded as its ‘controlling mind’. Usually such a person will only be deemed to be a ‘controlling mind’ if they are at least board director level.

To convict a corporation of gross negligence manslaughter it was necessary therefore, in the broadest terms, to prove that the person who was the controlling, or directing, mind of that corporation was also guilty of gross negligence manslaughter.

The Corporate Manslaughter and Corporate Homicide Act 2007

The scope

The new Corporate Manslaughter and Corporate Homicide Act 2007 abolishes common law corporate gross negligence manslaughter and replaces it with the new statutory offence of corporate manslaughter.

Who are the ‘organisations’ to which the Act applies?

S. 1(ii):

§ A corporation

§ A department

§ Other bodies including Local authorities and NHS Trusts

§ A police force

§ A partnership, or Trade Union, or employer’s association, that is an employer

§ Incorporated charities or charities who have trading subsidiaries that are incorporated

§ Organisations involved in the management of custody (not yet in force)

When is the offence committed?

S. 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 organisation is guilty of an offence only if the way in which its activities are managed ororganised by senior management is a substantial element in the breach.


The meaning of ‘relevant duty of care’

A relevant duty of care is a duty owed to the deceased under the law of negligence. If no duty is owed under the law of negligence then there is no liability under the Act unless S. 2 applies. The Act also lists some specific circumstances where there is a duty of care including, at S. 2(6):

§ A duty even if joint engagement in unlawful conduct;

§ Where the other party has accepted the risk of harm

Managed or organised

The use of these words in S. 1(3) of the Act ensue that this offence will only apply where there are fundamental errors or omissions in a corporation’s health and safety policy. They are depersonalising words that make it very clear that it is not dependant on an individual but upon the system and its implementation and strategy.

Senior management

Senior Management are defined as the persons who play significant roles in:-

§ The making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or

§ The actual managing or organising of the whole or a substantial part of those activities

What is substantial?

There is no definition of substantial in the act. In R v Lloyd, the Court of Appeal approved the trial judge’s definition in relation to the meaning of substantial. He said ‘I am not going to try and find a parallel for the word ‘substantial’. You are the judge, but your own commonsense will tell you what it means…’ Guidance is likely to be provided to the jury on the meaning of substantial. The jury will probably be directed to approach the word in a broad commonsense way and that the word be treated as meaning more than trivial but less than total.

Substantial element

‘Substantial element’ is not defined and will have to be interpreted by the courts in the context of each case. It is not difficult to foresee significant legal argument on the point if it might enable a company to avoid conviction.


Causation

S.1(1) states that to be guilty of an offence it is necessary to show that ‘ the way in which an organisations activities are organised or managed causes a person’s death’. Two points that immediately arise are:-

§ It will not be possible to be convicted of this offence unless there is a fatality. It does not matter how likely a death is or how close a person came to being killed, it must be an actual fatality

§ The fatality must be caused by a corporations organisation or management of an activity. There is no statutory guidance on this point and therefore no indication whether it must be the ‘main’ cause or ‘one of the’ causes of death. Considering that the aim of this offence is to promote health and safety practices at work, it is likely that it will be the latter. This though will need to be decided by the judiciary and is likely to be an area, at least initially, of significant legal argument

Summary of the offence

For a conviction there must be:-

§ A relevant duty owed to the victim;

§ A breach of that duty of care;

§ The breach of that duty must be as a result of the way the organisations activities are managed or organised;

§ A substantial element of the breach of the duty must be due to the way the senior management managed or organised activities;

§ The breach must be a gross one, worthy of condemnation by criminal law;

§ That breach of duty must be a substantial cause of the victim’s death

DPP permission required

It is necessary to have permission from the Director of Public Prosecutions for proceedings for corporate manslaughter to be instituted.

Exceptions to liability

Retrospective cover

Section 27 of the Act contains strict retrospective clauses that mean not only must the death take place after the 6 April 2008 but all the evidence supporting the allegations must also take place after that date. Therefore under S. 27(5), if any of the conduct or events alleged to constitute the offence occurred before the 6 April 2008 the old common law offence of corporate gross negligence manslaughter will still apply.


Additional

§ Under section 3 the public functions and statutory inspections of public authorities do not create a relevant duty of care (This is particularly important for the NHS);

§ Under section 4 military activities do not create a relevant duty of care where the death occurs from combat or training for combat;

§ Under section 5 the most dangerous operations of the police and other law enforcement agencies do not create the relevant duty of care;

§ Under section 6 the activities of the emergency services do not create a relevant duty of care;

§ Under section 7 of the act the statutory duties upon local authorities in relation to child protection and probation functions are those owed as employers and occupiers only

Sentencing

Fines

Under S. 1(6), if found guilty an organisation will be subject to an unlimited fine.

The sentencing guidelines authority consultation paper published on 15 November 2007 suggested guidelines for determining fines [see below]. The guidelines for corporate manslaughter convictions will be published in September 2009.

Publicity orders

S.10 of the Act allows a court to order a publicity order. Under a publicity order the court can order publication of: -

§ The fact that it has been convicted of an offence;

§ The specified particulars of the offence;

§ The amount of any fine imposed;

§ The terms of any remedial orders imposed

Options for the form of publicity orders are:-

§ Publication on television/radio and/or in local/national/trade newspapers;

§ Publication on the organisations website and in the annual report;

§ Notice to all share holders;

§ Letter to customers and/or suppliers of the organisation advising them of the organisation’s conviction under the Corporate Manslaughter and Corporate Homicide Act 2007


Remedial orders

The court can require the convicted company to remedy:-

§ Any relevant breaches

§ Any matter that appears to the court to have resulted from the breach and to have been a cause of the death

§ Any health and safety deficiency to the organisation’s policies

The remedial order must specify a period for compliance.

3 Health and Safety (Offences) Act 2008

Background

This is 5th time lucky for the Act, with 4 other Bills to increase the maximum penalties under the Health and Safety Act 1974 having failed. For all the importance of the Act it has had a remarkably trouble free and low profile passage through Parliament, receiving the Royal Assent on 16 October 2008. Arguably this is due to the prominence this year of the Corporate Manslaughter and Corporate Homicide Act 2007.

While for serious breaches of health and safety the Corporate Manslaughter Act will be a powerful tool, the Heath and Safety (Offences) Act should not be underestimated, nor should the limits of the Corporate Manslaughter Act. The Corporate Manslaughter Act, as already described, needs senior management to be involved for the offences to be commissioned. The Healthy and Safety at Work Act 1974 does not. All it requires is a breach of statutory Health and Safety requirements. The Health and Safety (Offences) Act 2008 increases, in the majority of cases, penalties under the Health and Safety at Work Act.

The Act

The Act replaces S. 33(1A) to (4) of the Health and Safety at Work Act 1974 with the new schedule 3A, contained in the Health and Safety (Offences) Act in Schedule 1. Specifically this has the effect of toughening up the sentencing of offences under the S. 33 of the Health and Safety at Work Act and revises the mode of trial.


Section 3A

Offence Mode of trial

Penalty on summary conviction

Penalty on conviction on indictment

An offence under section 33(1)(a) consisting of a failure to discharge a duty to which a person is subject by virtue of sections 2 to 6.

Summarily or on indictment.

Imprisonment for a term not exceeding 12 months, or a fine not exceeding £20,000, or both.

Imprisonment for a term not exceeding two years, or a fine, or both.

An offence under section 33(1)(a) consisting of a failure to discharge a duty to which a person is subject by virtue of section 7.


Imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both.


An offence under section 33(1)(b) consisting of a contravention of section 8.




An offence under section 33(1)(b) consisting of a contravention of section 9.


A fine not exceeding £20,000.

A fine.

An offence under section 33(1)(c).




An offence under section 33(1)(d).

Summarily only.

A fine not exceeding level 5 on the standard scale.

An offence under section 33(1)(e), (f) or (g).




An offence under section 33(1)(h).

Summarily only.

Imprisonment for a term not exceeding 51 weeks (in England and Wales) or 12 months (in Scotland), or a fine not exceeding level 5 on the standard scale, or both.

An offence under section 33(1)(i).


A fine not exceeding the statutory maximum.

A fine.

An offence under section 33(1)(j).


Imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both.



Offence Mode of trial

Penalty on summary conviction

Penalty on conviction on indictment

An offence under section 33(1)(k), (l) or (m).




An offence under section 33(1)(n).

Summarily only.

A fine not exceeding level 5 on the standard scale.

An offence under section 33(1)(o).




An offence under the existing statutory provisions for which no other penalty is specified.




Summary of change

Current maximum penalties

§ Fines of £5k or £20k for summary offences in lower courts, depending on offences; an unlimited fine for indictable offences;

§ Imprisonment not available for most offences;

§ Some, not the majority of, offences are either way offences

New maximum penalties under the Act

§ £20k fines in lower courts for nearly all summary offences, unlimited fines in higher courts;

§ Imprisonment for nearly all offences: up to 12 months in Magistrates Courts and 2 years in the Crown Court;

§ Nearly all offences are now either way offences

Limitations

The Act will come into force in January 2009.

The only limitation on the application of the new penalties is that the offence must be committed after the Act comes into force, in other words the offence must be committed on or after the 17 January 2009. Unlike the Corporate Manslaughter Act, there is no requirement that the conduct or evidence proceeds the Act coming into force. Therefore the Health and Safety (Offences) Act will have immediate effect.


4 Sentencing guidelines – Sentencing Advisory Panel (SAP) recommendations (fatalities) 2007

The Sentencing Advisory Panel (SAP) are currently in the process of formulating and releasing their recommendations for the sentencing for offences under the Corporate Manslaughter and Homicide Act 2007 and for health and safety offences which end in a death. The finalised recommendations are expected in 2009. On 17 November 2007 they released their consultation paper.

It’s report has a number of recommendations in the areas of:

§ Seriousness

§ Aims of sentencing

§ Fines

§ Publicity orders

§ Remedial orders

§ Compensation orders

Seriousness

The seriousness of the offence should have a direct effect on the severity of the sentence.

Culpability of the offender should be the initial factor in determining the seriousness of an offence, as per the Criminal Justice Act 2003, S. 143. The critical factor in determining culpability will be the extent to which the conduct of the offender fell below the appropriate standard. In determining this, particular attention will be made to a failure to keep pace with changing standards, whether the death was a result of an isolated breach, several breaches around the same time, or several breaches over a protracted period of time.

It is also considered that the extent of harm, measured as how foreseeable a risk is, should be investigated by the jury. Therefore, not only will the jury’s finding be relevant for determining conviction, but it will also be useful in the assessment of seriousness for sentencing purposes.

Aggravating factors

§ More than one person killed as a result of the offence;

§ Serious injury caused to one or more others, as well as the death;

§ Failure to act upon advice, cautions or warnings from regulatory authorities;

§ Failure to heed relevant concerns of employees or others;

§ Offender carrying out operations without an appropriate license;


§ Action or lack of action prompted by financial or other inappropriate motives;

§ Corporate culture encouraging or producing tolerance of breach of duty;

§ Breach due to employee acting outside authority or failing in duties

Mitigating factors

§ Ready co-operation with the authorities;

§ Good previous safety record

Aims of sentencing

There are three sanctions available to the court under the new Corporate Manslaughter Act, but only fines and remedial orders are available under the HSWA. This will not change when the Health and Safety (Offences) Act 2008 comes into force.

The SAP’s stated aim is to produce sentences designed to punish an organisation, to deter against an unsafe workplace and to protect both employees and the public through remedial orders.

To this end they have compiled the following recommendations:

Fines

The SAP recommendations consider a fine is required to be high enough that it should be sufficient:

§ To reflect serious concern at the consequence of the breach;

§ To ensure that those responsible for governance of the organisation are properly aware of the need to ensure a safe environment, and

§ If possible, to eliminate any financial benefit from the offence

The SAP recommends a fine as a percentage of turnover which it states has the advantage of imposing an equal economic penalty upon all organisations. Turnover is the aggregate of all sums of money received by a company during the course of business over an annual period. It is also the measure that is used for determining fines in competition law.

The model that has been suggested for corporate manslaughter is a fine at 5% of turnover with mitigating and aggravating factors effecting this total within a range of 2.5% and 10%. For an offence under the HSWA it is suggested that the starting point is 2.5% of turnover with the mitigating and aggravating factors effecting the total within a range of 1% and 7%.

The SAP has specifically stated that its recommendations put the fines for corporate manslaughter at this level with the understanding that there would always be a publicity order as well.


Publicity order

The recommendation is a publicity order against an organisation in every case of corporate manslaughter. If a publicity order is not issued then there should be an increase in the value of the fine to reflect this.

The SAP also considered a publicity order could be ordered as a stand alone sentence.

Remedial orders

Both the Corporate Manslaughter Act and the HSWA allow for remedial orders. The SAP does not feel that it would be appropriate for them to provide any guidance on this point as it will be used rarely and will only be imposed with the consultation of a relevant body.

Compensation orders

The court has the power to make an order requiring the organisation to pay compensation for any personal injury, loss or damage resulting from the offence, and must give reasons for its decision if it does not make such an order. If a fine is ordered to be paid as well as a compensation payment and the offender does not have enough to pay both then the compensation payment must be paid first. Also any compensation that is awarded will be taken off any damages received in any civil claims against the offender for the same incident.

5 Regulatory Enforcement and Sanctions Act 2008 (RESA)

Background

The Regulatory Enforcement and Sanctions Act 2008 (RESA) has been split into four sections:-

§ Putting the Local Better Regulation Office (LBRO) onto a statutory footing

§ Co-ordinating regulatory enforcement

§ Civil sanctions being made available to regulatory bodies

§ Reduction of regulatory burden

Parts 1, 3 and 4 came into force on 1 October 2008, while Part 2 will come into force on 6 April 2009. Below is an explanation of each section.

Part 1: Local Better Regulation Office (LBRO)

What is it?

The LBRO was established in May 2007 as a Government owned company. Part 1 of RESA establishes LBRO as a statutory corporation and dissolve the LBRO company.


What does it do?

§ Issuing guidance to local authorities in respect of regulatory services and where necessary ensuring that local authorities comply with guidance

§ Providing advice to the Government on enforcement and regulatory issues associated with local authorities;

§ Reviewing and revising a list of national priorities for local authority regulatory services

§ Encouraging best practice, and innovative approaches to the provision of local authority regulatory services, including through provision of financial support and assistance

§ Improving the coordination and consistency of regulatory function and enforcement for businesses that operate across local authority boundaries. (See Part 2)

Part 2: Co-ordinating policy through Primary Authority Principle

A Primary Authority Partnership scheme involves businesses and regulatory authorities that operate across local authority boundaries. By having a Primary authority it can be assured that all decisions are uniform, and co-ordinated. LBRO has responsibility for the administration of this scheme.

A Primary Authority is a local authority registered by the LBRO as having responsibility for a particular business or organisation. The registration may relate to a single function of the local authority, for example health and safety, or it may relate to multiple functions. A local authority can, however, only be a Primary Authority in relation to its trading standards, environmental health, licensing or fire safety function. (Note those functions covered under the Regulatory Reform (Fire Safety) Order 2005 are expected to be made exempt form this scheme).

Part 3: Civil sanctions

The RESA allows a minister, by order, to give certain regulators access to four new civil sanctions. No such order has been made to date. The sanctions are:-

§ Fixed Monetary Penalty (FMP)

§ Discretionary requirements- Variable Monetary Penalty (VMP)- Compliance notice- Restoration notice

§ Stop notices

§ Enforcement undertakings

The Act allows the minister to grant these powers to three classes of regulators; first those listed in Schedule 5 of the Act (such as the Financial Services Authority, the Environmental Agency and the HSE; secondly those who enforce offences contained in an Act listed in schedule 6 (such as Health and Safety at Work Act 1974, Food Safety Act 1990 and the Railways Act 1993); thirdly those who enforce offences in secondary legislation made in accordance with any of the Acts in schedule 7.


These new powers will be granted by a ministerial order. Regulators will not be given automatic access to them. Before making an order the Minister must be satisfied that a regulator will use the new powers in a way that is compliant with the principles of good regulation including: transparency, accountability, consistency, and targeted only at cases where action is needed.

Fixed Monetary Penalty

Fixed monetary penalties (FMP) are fines for relatively low fixed amounts that are intended to be used in respect of low level, minor instances of regulatory non-compliance. These will be used for offences like not maintaining appropriate records.

The level of fine be specified in the order conferring the power on the authority by the minister. The maximum level of penalty will usually be capped at £5,000.

Process

Before imposing a fixed monetary penalty, the regulator must first serve the business with a ‘notice of intent’ giving notification that it proposes to impose a penalty.

Then the business will have the right to make written representations within a denoted period which must not exceed 28 days. After the end of this period the regulator must decide whether to impose the penalty in light of the responses, or whether it should be varied.

Once the fine has been decided the regulator must then impose a ‘final notice’. Following service, if the business chooses to pay straight away it could benefit from an early payment discount, mirroring the early payment scheme on parking fines.

If they do not pay, then enforcement will be pursued through the civil court.

Discretionary requirements

§ To pay a variable monetary penalty (VMP)

§ Compliance requirement

§ Restoration requirement

When a regulator is authorised to use more than one of the above powers it will be for the regulator to decide which power or combination of powers to use in each case.

Variable Monetary Penalty

It is variable so that the regulator will be able to set it at a level that removes any financial gain from committing the offence and takes account of factors such as the gravity of the failure and the history of compliance.


Compliance requirements

This can be used to secure that a business takes the steps necessary to bring itself back into compliance with statutory acts, rules and regulations, for example, by making good an unsafe piece of equipment or updating a training regime.

Restoration requirement

This can be used to make sure that a business deals with the consequences of an offence, for example, by cleaning up an area contaminated as a result of the offence, or reimbursing customers’ pay.

Stop notices

A stop notice may only be served if the business is carrying on or is likely to carry on the activity and the regulator has the reasonable belief:-

§ That in carrying it on the business presents, or would be likely to present, a significant risk of serious harm to:- Human health; or- The environment (including the health of animals and plants); or- The financial interests of a consumer; and

§ That in carrying on the activity the business is, or is likely to be, committing an offence

The regulator will serve a notice on a business prohibiting it from carrying on a specified activity until steps are taken to either remove the risk of harm or fully return to compliance with the law.

A business which fails to comply with a stop notice will be guilty of a criminal offence.

Enforcement undertakings

Enforcement undertakings are agreements made between a business and a regulator for the business to undertake specific actions. They are for use where the regulator suspects that the business has committed a relevant offence, although in practice it may well be the business that brings this to the regulator’s attention.

Part 4: Regulatory burden

Under RESA there is a power for a Minister to apply a duty to regulators in respect of some or all of their regulatory functions. The duty will require a regulator to keep its functions under review, not to impose unnecessary burdens, and where it is practicable and proportionate to do so, to remove any unnecessary burdens. The regulator must then report on its activities to reduce those burdens, annually.


Conclusion

The Act therefore is designed to co-ordinate the various local authorities in order to encourage best practice nationally. In conjunction with this it will set up particular departments of expertise that can be consulted and used in order to ensure that advice, recommendations and enforcement are co-ordinated and standardised.

The added powers, if and when handed to regulatory authorities by the Minister, will allow them to impose sanctions directly upon businesses which are not complying with regulatory requirements. The Act has made it clear that this should only be used as a last resort. However, it will be interesting to see how the regulators make use of their powers assuming the powers are eventually handed to them. It may be tempting to issue a fine where previously the only option was to pursue a prosecution through the criminal courts. Conversely, how tempting might it be for a business to accept a fine or other sanction (even if they believe themselves to be innocent), when such acceptance guarantees that they can avoid the expense and complexity of a trial and avoid any potential conviction?

6 Amendments to the Coroners Rules 1984

Who are coroners?

A coroner holds an office of the Crown, he is appointed by a local government body. Appointments are typically by a committee of members of the local authority. There are about 140 coroners’ districts.

Under S.8 of the Coroners Act 1988 a coroner is obliged to hold an Inquest into deaths where there is reasonable cause to suspect that there has been:

§ A violent or unnatural death

§ A sudden death of unknown cause in prison

§ Death was caused by an accident, disease or poisoning

§ Occurred in circumstances that if they continue could be prejudicial to the safety of the public or any section of the public

Amendments to the Coroners Rules

The Coroners (Amendment) Rules 2008 came into effect on 17 July 2008 and incorporated:

§ Changes to Rule 43: Coroners reports to prevent further deaths;

§ Obligations for the supply of information where a child has died


Rule 43

Background

Rule 43 provides coroners with the power to provide reports to a person or organisation where the coroner believes that action should be taken to prevent future deaths.

The original rule 43 had a number of weaknesses, these were:

§ The fact that there was no obligation on organisations to respond to the coroner. Although in practice the majority did, there were some that did not.

§ There was also no unequivocal statutory authority for the coroners to share the full report with properly interested persons and other organisations. Some coroners have shared reports and others have not. Therefore, some families have not seen how it is intended that lessons should be learned to prevent a death similar to the death of their family member, an often stated consolation for them.

§ Information has never been collected centrally, so issues which were subject to reports in one coroner district which may have relevance to other coroner districts were not identified and disseminated nationally. Potentially, an important opportunity to save lives was missed.

Changes to rule 43

§ Coroners have a wider remit to make reports to prevent future deaths. It does not have to be a similar death;

§ A person who receives a report must send the coroner a written response;

§ Coroners must provide interested persons at the inquest and the Lord Chancellor with a copy of the report and the response;

§ Coroners may send a copy of the report and the response to any other person or organisation with an interest;

§ The Lord Chancellor may publish the report and response, or a summary of them; and

§ The Lord Chancellor may send a copy of the report and the response to any other person or organisation with an interest

Writing reports

When

§ An Inquest is being held into a persons death, but not until after the Inquest is finished. There is one exception which is where an inquest is adjourned and not resumed;

§ The evidence gives rise to a concern that circumstances creating a risk of other deaths will occur or continue to exist in the future. This is no longer limited to similar fatalities. It allows the coroner to report on issues that may be peripheral to the current case but nevertheless prevent death in the future; and

§ In the coroner's opinion, action should be taken to prevent this from occurring


Intention

A coroner who intends to make a report must announce this intention before the end of an Inquest. However, the amended rules allow coroners to make reports even when they do not announce their intention to do so at an Inquest. This allows for cases where, for example, a coroner has begun an investigation but adjourned and not resumed it because a criminal prosecution has taken place. Or it could include cases where no report was originally made at the end of the inquest but then a similar case emerges later which prompts the coroner to make a report based on the facts of two or more deaths.

Content

The amended rules do not specify the information which a coroner must include in a report. This is for the discretion of the coroner and the information included in a report will depend on the circumstances of an individual case.

The Ministry of Justice Guidelines do, however, suggest that it would be useful for the coroner to set out certain information relevant to the new duty and the new rules imposed on the person or organisation receiving a report and request for response. To assist the coroner the Guidelines lay out a number of suggested paragraphs.

Sharing reports

The coroner must supply copies of the report to interested persons and to the Lord Chancellor. In addition the coroner may share the report with any person who the coroner believes may find it useful or interesting. In particular regulatory bodies or organisations with an interest in the subject matter of the report should be considered.

Responses

Under the new provisions a person to whom the matter is reported must respond in writing to the coroner within 56 days. The response must contain details of any actions that have been taken or which it proposes will be taken, whether in response to the report or otherwise, or an explanation as to why no action is proposed.

There are provisions within the new Regulations for an extension of time. The organisation needs to first make an application to the coroner for an extension who will then have a discretion to grant the application. This application will still be considered even if it is made after the 56 days. The coroner is expected to grant an extension if it is a reasonable request and can only refuse if there is good reason. The length of the extension is at the discretion of the coroner.

Where a relevant person or organisation fails to respond, the coroner should ensure that reasonable attempts are made to follow up the matter. Where a response remains outstanding after reasonable attempts, then the coroner may inform the Lord Chancellor. The amended rules does not impose a sanction on organisations that fail to respond. However, the failure of a specific organisation to respond may be recorded in any document the Lord Chancellor publishes about rule 43 reports.


Sharing responses

The rules relating to the sharing of responses are similar to those of sharing reports. The only difference being in the case where a relevant individual or body do not want their response to be published. In these circumstances they should make written representations to the coroner who must then decide whether the full report should be released or published. Some examples of circumstances where representations could be made are:

§ Where the response contains confidential or classified information;

§ Where the release of the response might have a prejudicial effect on ongoing or upcoming legal proceedings; or

§ Where regulatory enforcement action is being carried out under confidentiality rules

Where a representation is received and a coroner does not believe that a response should be released or published the coroner must prepare a summery of the response for publication. In preparing the response the coroner should remove any parts of the response that are not to be released or published. In no way does the Lord Chancellor have authority to overrule the coroner on this point, though it should be noted that regardless of whether the response is summarised or not the Lord Chancellor receives the full report.

Publication of reports and responses

The Lord Chancellor may publish a report in full or in summary. However he may not release the full report when the coroner has prepared a summary of the response. On behalf of the Lord Chancellor, the Ministry of Justice intends to produce a regular bulletin on coroners reports. This bulletin will be made publicly available on the Ministry of Justices website.

Supply of information regarding the death of Children

Summary of new rules

From 17 July 2008:-

§ Coroners must notify the LSCBs for their area of a child death if the Coroner decides to hold an Inquest or to conduct a post mortem; and

§ Coroners may share information with LSCBs for use for the purposes of their functions

LSCB

LSCBs were established under the Children Act 2004. Their purpose is to coordinate and ensure the effectiveness of what is done by each person or body represented on the board for the purposes of safeguarding and promoting the welfare of children in their area.

From 1 April 2008, LSCBs in England have a new responsibility under the Children Act 2004 to conduct child death reviews for all children and young people under 18 who die and who were normally resident in their area. They are required to do this in order to identify:

§ Any cases which may also require a serious case review;


§ Any matters affecting the safety and welfare of children in the area; and

§ Any wider public health or safety concerns arising from a particular pattern of deaths

When to notify LSCB

There is a requirement to notify the LSCB of the death of a child if an Inquest is to be held into the death of a deceased person or a post mortem examination is to be carried out and it is believed by the coroner that the deceased was either under the age of 18 or may have been under the age of 18.

The coroner must notify the LSCB in writing, although writing can include electronic means, within 3 working days. Working days do not include Saturday, Sunday or Bank Holidays. There is no requirement for a coroner to notify an appropriate LSCB where the death occurred before the 1 April 2008 or the inquest or post mortem examination started before 17 July 2008.

Information supplied

A coroner may supply information to an LSCB for use for the purpose of its function. Information is defined as any information which is held by the coroner for the purposes of an Inquest or a post mortem examination. The regulations, though, do not set out what a coroner must supply and it is therefore up to his discretion. Information which may be supplied are:-

§ Post mortem reports;

§ Special examination reports;

§ Investigative reports;

§ Any notes of evidence;

§ Documents put in evidence at inquest

Future developments

The Coroners and Death Certification Bill 2008

The government remains committed to reforming the coroners system, the aim being to place bereaved families at the centre of the process. To do this they want to radically overhaul the current process.

A thorough in depth review has been undertaken and from this the Coroners and Death Certification Bill was born. The formal consultation on the draft Bill lasted until autumn 2006 and over 150 responses were received from stakeholders. As a result the newly revised Coroners Bill was released on 27 March 2008. It is to be introduced into parliament in the Queens speech on the 3 December 2008 and laid before the House in the 2008-2009 session.


The main aims of this bill are to:

§ Create a new national coroner service, moving towards full time coroners working to national minimum standards (funding responsibility will remain with local authorities);

§ Create a new system of secondary certification of deaths that are not referred to the Coroner, covering both burials and cremations;

§ Establish a new group of medical examiners to scrutinise independently the causes of death given by doctors on death certificates;

§ Introduce new powers of investigation for coroners, including improved procedures for post mortems and Inquests;

§ To establish a new Chief Coroner as head of the coroner service, improve arrangements for coroner appointments and training, and provide for independent inspection of coroners;

§ Create new flexible boundaries between coroner areas to enable services to be delivered to families more effectively, and with powers for the Chief Coroner to reallocate work to prevent backlogs of work developing;

§ Establish new and accessible rights of appeal for bereaved people against coroners' decisions;

§ Introduce a 'Charter of Bereaved' outlining a full range of rights for bereaved people to be informed and consulted about case progress by coroners

7 The House of Commons Work and Pensions Committee (WPC) third report

Background

This report was published on the 21 April 2008 and the government responded on the 25 June 2008. The aim of the report was to analyse the state of health and safety regulation and to recommend changes to make the system more effective. The committee also reported on recent changes and whether they were effective.

The main areas dealt with are:-

§ The merger of the Health and Safety Commission and the Health and Safety Executive

§ The state of the legislative framework

§ The interpretation of Health and Safety Legislation

§ Inspection and enforcement

§ Prosecutions and penalties

§ Worker involvement


§ Vulnerable workers

§ Occupational disease

Legislative framework

§ The report recommends a continued reduction in the administrative burden for health and safety implementation

§ Increased guidance notes to small and medium sized businesses clarifying what they need to do to comply with the relevant acts and guidance

§ A consideration by the government of the effect of suspending crown immunity for the Corporate Manslaughter and Homicide Act 2007 with a view to legislating for its removal in relation to the Health and Safety at Work Act 1974

Interpretation of Health and Safety Legislation

§ The Work and Pensions commission recommended that the Law Commission redefine the meaning of 'reasonable practicality' in terms of Health and Safety legislation in order to clarify its meaning for businesses. The government has stated that it does not believe that this is necessary and will not be implementing any alterations at this time

§ The health and safety consultants' profession is to be accredited. This is to be done by the professional bodies themselves. The government is facilitating a meeting of the relevant professional bodies in order to discuss how an accreditation scheme could promote the responsible and proportionate provision of health and safety advice

Inspection and enforcement

§ The report recommends an increase in the number of inspectors and number of inspections carried out by the HSE. The committee considered that the decline in inspections over the last 4 years has lead to an increase in fatal accidents. The government responded by indicating that it would not change its current policies on the number of inspectors/inspections

§ The commission noted the number of incidents and fatalities involving tower cranes. It has recommended a national register to include ownership, age, design type, date of last inspection and other relevant factors. The government has stated that the idea is unnecessarily burdensome and unlikely to achieve the desired aim. The HSE is working with the Construction Forum to make sure that the industry understands and implements the practices needed to comply with the directives. It does not propose any policy changes


Prosecutions and penalties

§ The report recommended that once the Health and Safety Offences Act 2008 comes into force a proportion of the fine should go to the HSE in order to assist with their investigation responsibilities. The government rejected this stating that it would lead to a perception of potential income skewing prosecution decisions

§ Despite the report recommending that alternative penalties are looked into by the HSE, the government believes that this would not be appropriate, and have rejected this recommendation

Worker involvement

§ The WPC is not convinced that trade union safety representatives can be effective in improving health and safety standards. It is also disappointed that the HSE has not done more to improve their role. The government does not accept that this is the case. The HSE does have plans to publish a good practice guide and the responsible Minister is proposing a programme of visits and engagements with health and safety representatives and trade unions throughout the coming year

§ The report recommends that the Health and Safety (Consultation and Employees) Regulations 1996 be amended to give employees the right to insist on consultation through elected health and safety representatives, a move to protect non trade union workers. The government does not believe that this is practicable or cost effective and has declined to make any amendments at this time

Vulnerable workers

§ The report finds that there is not enough information currently on migrant workers. Although there is no research to show that being a migrant worker will make someone more likely to have an injury it is felt that there are situation where injuries go unreported, this is backed up by HSE research. It has been found that the majority of migrant workers are not aware of their Health and Safety rights, therefore it is recommended and accepted by the government that more work needs to be done to make them aware

§ Agency worker health and safety regulations are thought to be unclear, therefore the HSE is going to publish clear signposts to relevant rules and guidelines on its website

§ The report puts forward proposals for companies at the top of supply chains to put specific clauses in their tendering, or supply contracts to ensure that health and safety requirements are complied with lower down the chain. The government states that the HSE is working with a number of initiatives with prime contractors, but it does not foresee any additional legislative duties being bought into place, feeling that s.3 of the Health and Safety at Work Act 1974 is sufficient

Occupational health

§ The DWP does not believe that the government is efficient at collecting information about work place injuries. It believes that RIDDOR is not being complied with and that this undermines the government's policies for allocation of resources. The government accepts that the HSE's data on ill health is incomplete and that individual elements have limitations,


it does not accept that their policies are flawed. The government has stated that it will continue to try and improve its information gathering

§ The report finds that health and safety inspectors are not as well trained in occupational health as they should be. The government agrees this is an important area and states that it is developing a programme of training inspectors and is aiming to have refresher schemes on these key skills

§ The committee members believe that at the moment work places do not have adequate policies in place to assist workers returning to work following injury. They propose having financial incentives for companies to put these in place. The government agrees this is an important area and states that the Vocational Rehabilitation Task Group has charged the insurance representative members on the group to produce an evidence based business case to demonstrate costs and effects of having current disincentives removed andadditional incentives applied

§ The report notes that in Germany, insurance premiums for employment liability insurance are based directly on health and safety standards. In the UK it is believed that the pricing is more dependant on what other insurance products are sold. The government made no comment on what it proposes in this area

§ It was recommended that the government introduces a similar scheme to the Health and Safety award scheme ‘Healthy Working Lives’ which operates in Scotland, to reward good practice. They also ask that the government includes a health and safety requirement in the ‘Investors in People’ award. The government agrees and has asked the HSE to develop a strategy which will encourage employers to maintain good health and safety standards

Stress and musculoskeletal disorders

Report

WPC figures from the Labour Force survey indicate that stress and musculoskeletal disorders (MSDs) make up approximately 75% of work related sickness absence.

Stress

The report refers to the stress management standards which the HSE has developed in order to try and tackle stress in the workplace.

There were suggestions that the HSE (2004) Management Standards for work related stress be placed on a statutory basis, but the report has clearly stated that this is not going to occur at this time. The WPC Pensions has suggested that it would like the HSE to focus its efforts in this are to disseminating information to small and medium sized enterprises.

Other steps

It is noted in the report that the HSE has not yet come up with any clear exposition of what it expects to see in the workplace in order to prevent work related ill health. The WPC suggests that the HSE builds on its stress management standards in order to demonstrate what a good, healthy workplace should be including what constitutes a good occupational health structure within an organisation.


The other study which the report refers to is that of the European Agency for Safety and Health at Work which has recently published a paper on the causes of occupational ill health from the changing working environment. The report highlights that new forms of employment contracts, job insecurity, work intensification, high emotional demands, violence at work and poor work life balance can result in increased stress levels and may finally lead to a serious deterioration of mental and physical health. It will next do a survey of businesses in the 27 EU Member States in order to see how businesses deal with psychological risks, and how business can be assisted to manage these complex workplace hazards more effectively.

8 Developments in case law

Inquest verdicts

R (on the application of Bodycote HIP Ltd) v HM Coroner for Herefordshire [2008]

The Claimant Company (B) applied for judicial review of a verdict of unlawful killing that had been returned in respect of two of its employees (J and C). J and C had died as a result of exposure to argon gas which was used in one of B’s industrial processes. B argued that the coroner had failed to direct the jury sufficiently as to the law relating to unlawful killing by way of gross negligence manslaughter where it had been asserted that the gross negligence was that of a corporate entity.

The court held that where anyone was considering the common law liability of a corporation for unlawful killing by gross negligence he would need to be aware of the state of the law. The law was that before a company could be criminally liable for manslaughter, there had to be liability for manslaughter in a human person and that human person had to have had the status of a directing mind of the company and therefore be said to be the company for the purpose of criminal responsibility.

The coroner had failed to direct the jury’s mind to the need for one individual at least to have had sufficient foresight and responsibility to have done something different from what was in fact done. The jury’s verdict would therefore be quashed, and a new Inquest ordered in order to deal with both deaths.

The court went on to suggest that one possibility that might need to be explored was a narrative verdict. It was felt that if a properly directed jury could not justify their findings on criminal responsibility they may well inform on the circumstances of the deaths by way of narrative either as an alternative to or in conjunction with a verdict of accidental death, which was otherwise the obvious preset alternative to unlawful killing. A narrative verdict might have a particular relevance in cases where a jury recorded particular breaches of duties, or particular failures to foresee risk which could be recorded so that the industry and all others associated with the accident could be alerted of this case. In this way the lessons of it could be used to stop other similar accidents from occurring.


Criminal procedure

HSE v Ward & others [2008] - Unreported

On 20 January 2003, 2 elderly residents of a retirement village died in a gas explosion at their home. It transpired that maintenance employees at the village, had been disconnecting gas supplies at various houses in the village and not capping off the piping correctly. None of the employees had the required CORGI gas training.

The warden (comparable to general manager) and works department manager were each charged with offences under section 7 Health & Safety at Work Act 1974, failure to take reasonable care for the health and safety of himself and, of other persons who may be affected by his acts or omissions at work. The Indictment in the case was not laid until 16 July 2007.

The defendants applied to the Crown Court to have the case stayed, submitting that there had been serious delay causing serious prejudice to them having a fair trial. The prosecution argued that the matter had been complex and difficult to investigate, and that no prejudice had been suffered by the defendants.

The judge held that the time for calculating when the defendants had been alerted that they were the subject of criminal investigations, was February and October 2003 respectively, when they had first been interviewed by the police. The HSE investigation had continued at the same time and most of the witness statements had been taken by the summer of 2003.

The decision by the HSE to hold back on progressing the prosecution until after the Inquests were held, was a policy decision on their part, and the judge held that such a policy decision was not an excuse they could rely on, for allowing the matter to drag on. The delay incurred was unacceptable and it had caused serious prejudice. Many of the potential witnesses were old, had memory problems - or had died. No reason had been given by the CPS for the delay in deciding to prosecute.

The judge found that there had been a breach of Article 6 of the ECHR and the defendants had lost their right to have a fair trial, and he imposed a (permanent) stay on proceedings.

Criminal liability - Interpretation of regulations and liability

Commission v UK: C/127/05 [2007]

The European Court of justice (ECJ) rejected an attempt by the European Commission to declare the UK's use of the words 'so far as is reasonably practicable' in health and safety regulations as incompatible with Directive 89/391/ECC, commonly referred to as the Framework Directive.

The Commission contended that nothing short of a strict liability regime was required by the Framework Directive so that employers remained liable to ensure the safety and health of workers in every aspect related to the work.

The ECJ rejected the Commission's arguments, following the Advocate General's opinion. If the UK had lost, many health and safety provisions would have had to be re-written with employers losing the limited defence open to them under certain provisions where claims could be defended on the basis that all reasonably practicable steps had been taken.


Nevertheless, the Advocate General criticised the UK's test as to reasonable practicability. He considered this approach incompatible with the Framework Directive which gave priority to protecting individual workers rather than a financial enterprise. Economic considerations should not be involved but only a consideration of whether it was technically feasible to eliminate or reduce the risk to the health and safety of the workers.

Whilst the opinion is not binding on English courts it is highly persuasive.

R v Chargot Ltd [2007]

During the construction of a car park one of the defendant’s employees was asked to drive a dumper truck . The employee was not the usual dumper truck driver. He was asked by the foreman to drive it, with a load of spoil, approximately 500 yards to a hole into which it was to be deposited. As the employee was driving down a ramp the dumper truck fell onto its side, and for reasons that were never resolved, the employee was buried under the spoil and died.

Under the Health and Safety at Work Act 1974, there are two hurdles which must be passed in order to ensure a conviction. These are:

§ First the prosecution must prove a prima facie case that there is a foreseeable risk;

§ Then the burden of proof switches to the defendant who must then prove that they have taken reasonably practical steps in order to avoid their exposure to risk

The case went to the Court of Appeal on the first of these points. The defendant argued that it is usual for the a prosecutor, when setting out the case, to give details of the alleged failings of the defendant. The defendants argued it was incumbent upon a prosecutor to do this in order to prove the prima facie case. In the past the courts have expressed their disapproval when the prosecution has failed to give particulars of the case being pursued.

The prosecution however argued that that all it had to do to prove a prima facie case was to prove there had been an exposure to risk. The Court of Appeal’s view was in line with the prosecution’s case and believed that on the facts above, the prosecution had clearly established the relevant risk of injury caused by driving a dumper truck, saying it ‘was a real risk, as opposed to a hypothetical one… established by the fact there was an accident.’

This ruling raises the dilemma of where one draws the line. For example, if a workman is working on a roof, irrespective of the precautions being taken, there will always be a prima faciecase against the employer because the risk that he will fall is inherent in the task. Thus, every time the work is undertaken the employer is theoretically open to prosecution because a primafacie case will always be made out under the HSWA. The burden of proof will therefore always be on the employer to demonstrate reasonably practicable steps have been taken.

Obviously the implications for businesses are dramatic, therefore this case has been appealed to the House of Lords on a general point of public importance. Namely:

‘Is it sufficient for the prosecution to merely prove a risk of injury to make a case?’

A ruling is expected in February 2009.


R v James Godfrey Joseph Porter [2008]

P was the headmaster of a private school for children between the age of 3 and 16. A 3 year old suffered a head injury after jumping from a flight of steps leading to a playground and losing his footing.

At first instance the judge took the view that the jury could properly conclude that the steps constituted a risk to the safety of the child if he were to descend them unsupervised. He also concluded that the jury could conclude that it would be reasonably practicable to prevent the child from descending the steps if there had been constant supervision. The Jury went on to convict P of an offence for failing to ensure the health and safety of a person not in his employment, contrary to the Health and Safety at Work Act 1974 s. 3(1)

It was held on appeal that the risk which the prosecution had to prove should be a real as opposed to a fanciful or hypothetical risk. There was no objective standard or test applicable to every case by which the line between real and fanciful risks could be drawn. There were important factors which the jury was obliged to take into account to determine the nature of the risk. None of them was determinative, but many (depending on the facts of a particular case) would be of importance. For instance the absence of any previous accidents in circumstances which occurred daily would be highly relevant and was indeed a relevant factor in this case.

In this case, although the factors which led to this accident must have occurred on numerous occasions over the years none of them until this one led to an accident. Further none had occurred even though there was the same alleged lack of supervision. Moreover there was nothing wrong with the construction of the steps themselves. At appeal it was also argued that there had been no similar accidents in the playground where there were numerous locations where a child could jump from one level to another. It was held that the fact that a young child might slip or trip or choose to jump from one height to a lower level was part of the ordinary incidence of everyday life, it was also held that this was not a determinative point but one that was highly relevant.

Therefore in summary the court of appeal believed that there were many considerations demonstrated by the evidence suggesting that there was no real risk of the kind which the statute contemplated, and very little, if anything, other than the fact of the accident, to suggest to the contrary. Unless it could be said that the child had been exposed to a real risk by the conduct of the school, no question of the reasonable practicability of measures designed to avoid that risk arose. Therefore in those circumstances the jury’s finding was unsafe and the appeal was allowed.

Sentencing

R v John Pointon & Sons [2008]

Company (J) appealed against fines of £480,000 for failing to ensure the safety of employees under s.2(1) and 33(1) of the Health and Safety at Work Act, £50,000 for failing to provide a system for confined space working, £50,000 for failing to provide suitable and sufficient arrangements for rescue from a confined space, and £40,000 for failing to adequately assess the risk to health and safety of employees and others affected by its undertaking. A total fine of £620,000.

Company (J) dealt with rendering of animal material such as carcasses and offal. It received animal by-products from slaughter houses and dead zoo animals which were treated so that some of the resulting by-product can be sold on. The animal material was bought into the


factory by lorries. Originally the products were tipped onto the factory floor, sorted and placed on one of the three open lines for rendering.

On the 6 March 2004 a fourth line opened, this was a state of the art ‘closed line’ and was known as ‘line 4’. Products for line 4 were tipped straight from lorries directly into two hoppers which fed the line. The products were then moved along the line by a series of screws. The raw material crushed and cooked at high temperatures. After its instalment, line 4, was frequently subject to problems caused by blockages to the line. These were usually caused by large plastic bins called dolavs which arrived in the waste and caused obstructions. There was no set procedure for dealing with these and the solution frequently depended upon the number of staff working at he time.

On the date of the accident, 9 loads of raw material had been delivered overnight and tipped directly into the hoppers. A dolav blocked the line and restricted information passing down the line. The line was closed down and an attempt was made to clear the line using a JCB arm. This failed.

When this failed they lowered a man in on a sling attached to a crane into the back screw area of one of the hoppers on a sling. Once there he promptly collapsed. At this point a second man was lowered into the back of the screw area to try and save the first man. He collapsed as well.

The ambulance and fire services were called who managed to rescue the two men. Unfortunately the second man who had gone in to rescue his colleague died without regaining consciousness. On investigation it was found that the men had collapsed due to the fact that there was a large concentration of carbon monoxide and hydrogen sulphide present.

The appeal was on the basis that the fine should have been based upon one offence, the most serious, and that it was wrong for the judge to add up multiple amounts. The Court of Appeal held that the judge at first instance was perfectly entitled to fine the company on each count. It was also not wrong in principle to fine the most serious offence and make no separate penalty for other counts. Whichever course a judge adopted, it was the totality of the fine that must not be manifestly excessive.

Here on the facts it was decided that the fine was excessive and on appeal it was reduced to £460,000.

R v TDG (UK) Ltd [2008]

TDG was a large warehouse and distribution company. An employee (V) was carrying out checks on a trailer when another trailer rolled backwards and trapped him. V was crushed and pronounced dead at the scene. A non-employee driver (D) had failed to apply the handbrake to his tractor unit when he sought to couple it up with V's trailer unit. TDG had failed to ensure that the trailers had their own independent parking brake applied when parked uncoupled.

TDG had acquired the site several years prior to the accident and since then operators had not ensured that the trailer parking brakes were applied as a matter of routine. That was contrary to TDG's policy and represented a failure to enforce that policy. In addition TDG had not prepared a risk assessment for uncoupling operations at the site and had not implemented its own training syllabus.

At first instance D pleaded guilty under s.7 of the Health and Safety at Work Act 1974 and was fined £1,000 and ordered to pay £2,000 in costs. TDG also pleaded guilty and was ordered to pay £25,000 in costs and a fine of £325,000.


Since the incident TDG had taken specific steps to remedy the fault that had lead to the breaches and therefore TDG pleaded on appeal that the fine was manifestly excessive as TDG's culpability was less than D's. TDG did not consider the judge had made full allowance for their guilty plea and that further the judgement failed to reflect mitigating factors leading to the fine being outside the range of fines for this offence.

The Court of Appeal allowed the appeal. The court accepted that there was no set price tariff for a fatality with two respondents. It was held that the judge had correctly identified the relevant aggravating and mitigating factors in the case but the immediate cause of V's death was D, even though it was not accepted by the court that D was the main cause of death.

The court stated that there was authority for where there is a fatality fines of up to £500,000.00 should be considered, although this figure was not set in stone. They also accepted the argument that where a fatality occurs and there is an added ingredient of safety being sacrificed for profit, £600,000 would be around the expected figure.

However in light of the fact that TDG had made a prompt and early admission of its breach of regulation, and too little responsibility was apportioned to D, the fine was disproportionate and reduced to £275,000.

R v FJ Charlcroft Construction Ltd [2008]

The appellant Company (X) appealed against two fines of £80,000 and £180,000 which had been imposed following a guilty plea of two counts of failing to discharge its duties under the Health & Safety at Work Act 1974.

An electrician had died after he fell during the construction of a warehouse. X was the principal contractor and the electrician was employed by the sub contractor. The fall occurred because a steel element which was part of the fabric of the building gave way when the electrician leant on it. The decision had been taken to use the structural element as part of the edge protection for the work at height.

It was common ground that this was not in itself inappropriate but the integrity of the structural component should have, but had not been, subjected to an inspection before its use for that purpose. The judge concluded that had X discharged its duties, it would have been significantly less likely that the accident would have occurred.

At first instance the aggravating features identified by the Judge included the death, and X’s failure to heed warnings from experienced sub contractors. It was found that the standard of health and safety fell far below the level that was reasonably practicable. A 15% deduction was made as account was taken for X’s good record and of the steps taken since the accident. A starting point of £400,000 was adopted. X submitted this starting point was too high and so appealed.

The appeal was dismissed. The judge had exercised his discretion in fixing the relevant level of fines on the basis of a careful analysis of the relevant mitigating and aggravating features of the case. It also found that the fines were not manifestly excessive or wrong in principle.


9 PrivilegeThe concept of privilege over documents and communications arises regularly in regulatory cases.

Where Legal privilege exists it is paramount, R v Derby Magistrates’ Court [1996]:

‘The principle which runs through all these cases, and many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyers in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.’

The only exception is where it is waived or abrogated.

Legal privilege

Letters and other communications passing between a solicitor and their client are privileged from production provided that they are confidential and written by or to a solicitor in his professional capacity and are for the purpose of getting or giving legal advice to a client.

Although this was originally confined to advice about litigation, legal professional privilege has long been extended to non-litigious businesses. The test is simply whether the communication or other document is made confidential for the purpose of providing legal advice. This does not just extend to information between a client and their solicitor, it also extends to the passing of documents from a third party as a process of keeping both informed, so that advice can be sought and given.

The case of Three Rivers DC v Governor and Company of the Bank of England (No.6) [2004]dealt with this issue.

This case involved advice regarding the presentation of the Bank’s case to the Bingham Inquiry. This was an inquiry where it was possible that criticism of the Bank’s conduct might be expressed in a report and where the bank sought advice on this point. The point went to the House of Lords who stated that where there are communications between a lawyer and a client’s employees this would not be within the realms of privilege. Deferring to the Court of Appeal’s judgement in House of Rivers (No.5).

In light of this when seeking legal advice for the purposes of litigation a company should consider whether the employee who communicates with legal advisors has authority to do so. As a cautionary measure companies should identify a group of employees who have authority to instruct legal advisers. However, a court may still consider whether or not such authority is legitimate.

Litigation privilege

Communications between a solicitor or client with a third party which comes into existence after litigation is contemplated or commenced and which is made with a view to obtaining materials for a case, will be privileged. This type of privilege is called litigation privilege.


This has become more important in light of the Three Rivers (No.5) case which confirmed that legal advice privilege does not apply to preparatory materials which do not constitute communications between the lawyer and client

So when is a document covered by litigation privilege?

In The Palermo [1883] statements were taken by the Receiver of Wrecks from the crew of R in relation to a collision with P. In a claim arising out of the collision the Board of Trade refused to give copies of the statement to the owner of P. It was held that the copies of the statements were obtained for the purpose of the claim by the solicitors to the owner of R and were therefore privileged.

However documents which came into existence for some purpose other than to instruct a lawyer, do not become privileged later simply because they are sent to the lawyer as part of his instructions.

Difficulties arise however, where it is clear that the documents came into existence for more than one purpose or where it cannot fairly be said that information is being collected for the purposes of a legal case rather than for the purpose of investigating information to do with an occurrence

The recent case of West London Pipeline & Storage Ltd v Total UK Ltd and others [2008], sets out this point well.

It relates to proceedings arising from the explosion and fire at the Buncefield oil terminal in December 2005. The judgement concerns an application by TAV Engineering Ltd (TAV), a third party to the proceedings, for specific disclosure of certain documents in the possession of the two defendants, Total UK Ltd and Total Downstream Oil Storage Ltd (together, Total), produced by Total in the course of its own internal investigation conducted after the incident.

The documents included interviews and reports produced by Total's accident investigation team. Total claimed that it had anticipated that civil and criminal proceedings would be likely to arise in respect of the incident and that these documents were produced for the dominant purpose of seeking legal advice in respect of those proceedings. Malcolm Jones, managing director of Total UK Ltd, served an affidavit in support of Total's claim that the documents were privileged.

TAV argued that the Total documents were not privileged. In support of their claim, TAV referred to, among other things, certain mandatory internal policies produced by Total, which required incidents of this kind to be investigated and reported as matter of course, for the purpose of determining the causes of such incidents in order to develop remedial action plans, take corrective action and prevent their reoccurrence. TAV's argument was that the documents had been produced for the purposes set out in the internal policies rather than anticipation of litigation.

The judge stated that the burden of proof lies with the party seeking to establish the privilege and that, with respect to a supporting affidavit, the bare assertion of privilege and of the purpose of the communications over which the privilege is claimed may not be determinative. However, an affidavit will be conclusive unless it is clear from its face that the deponent had erroneously represented or misconceived the character of the document in question, the affidavit is contradicted by the person who made it or there is other evidence in front of the court that the affidavit is incomplete or incorrect on material points.


The judge said that claims to litigation privilege must explain in evidence the purpose for which the documents were produced, referring to contemporaneous material where possible. In this case it was felt that the affidavit fell short on this point as it did not properly address the alternative purposes for which the document might be produced. In particular it did not consider properly the evidence put forward by TAV.

The judge then stated that there are 4 options where the affidavit falls short of proving litigation privilege, these are:-

§ Order disclosure;

§ Order a further affidavit to be filed to ‘fill in the gaps’;

§ Inspect the documents; or

§ Order cross examination of the deponent

In this case he decided to use the second of these and ordered a new affidavit to be sworn.

Conclusion

Privilege is very important in regulatory cases. Often these cases involve failure of systems, breaches of health and safety policies or organisational inadequacies. Cases turn on documentation. Due to the volume of information that is produced and the variation of documents and correspondence, the numerous experts and expert reports, the number of employees and senior management personnel involved, there is going to be a multiplicity of documentation produced. Without a thorough understanding of privilege it could be easy to become confused or in an extreme case find yourself in contempt of court.

Berrymans Lace Mawer 2008