Welcome

Matthew Breakell

Solicitor

Safety Health and Environment Team

What are we covering today? Session 1 Coroners’ Inquests;

What an Inquest is and the powers of the Coroner; Practical implications of evidence heard; Preparing for Inquests and what can be expected.

Session 2 Preparing for Court; Which Court will my case go before? Decisions regarding plea; Preparing for trial; The new sentencing guidelines.

Inquests: an introduction What is an Inquest?

Investigation into the death Questions to be answered:

Who died When Where How – twofold question

When is an Inquest required? Violent or un-natural death Death in custody (implications for health and police)

Inquests: an introduction When is a Jury required?

Work place Death Notifiable Discretion of Coroner to call

What conclusions can it reach? Short form Narrative

Prevention of future deaths.

The question of how: part 1 Medical cause of death

Post mortems What we understand from them Why is it important we fully understand the medical

cause of death How will this affect the conclusion

The question of how: part 2 A wider enquiry How and in what circumstances The importance of keeping how focussed Not a question of criminal or civil liability Protections from self incrimination Criticism is allowed but how can it be limited Impact on future issues.

Reaching a conclusion Short form verdicts generally provide some relief to

organisations Narratives can be unpredictable and critical in some

circumstances Example of a narrative conclusion

Interactive session You are a board of company directors You have had a fatality involving a member of the public

on a residential property construction site It has attracted a lot of local and national press The Police have indicated that they do not believe that

offences of manslaughter by gross negligence or corporate manslaughter have been committed

The HSE is an interested party at the Inquest and the family is represented by a Barrister

Consider the following you are a Managing Director who is going to likely be

asked questions about whether you knew about short cuts the company had been taking that have resulted in the death; DO YOU ANSWER THE QUESTIONS?

At the end of the of the Inquest a narrative conclusion is reached which is critical of the company; WHAT SHOULD THE COMPANY BE PREPARED FOR?

Reputational damage No right or wrong answer Thomas Cook -v- Alton Towers, is there any right

approach? Wider implications on business continuity Cost of an incident in the work place with either

employee or non employee can no longer be measured in the value of a personal injury claim, the wider implications are much greater.

Let’s take a break

End of session 1

Prosecutions Let’s re-cap the process first:

Incident Investigation Witnesses etc. Interview under caution DECISION TIME

Decisions: how and why1. The evidential test

Does the prosecution have sufficient evidence by which it believes it has good prospects of success at trial.

Identification of offences Identification of breach Identification of supporting evidence

Decisions: how and why2. The public interest test

Is it in the public interest to proceed with a prosecution?

As a given it normally is, however, will be circumstances in which it wont.

How do we argue it? Is a judicial review really worth it?

Is all hope lost? Absolutely not!!! Prosecution doesn’t always understand the wider

context of operations in a business, or the evidence it has collated: case study – trial we recently completed where prosecution dropped first charge on day 3 and whole case on day 12 without us needing to present our defence

Technical defences available – battle of experts? Jury points

Get out of jail free cards? Technicalities can be identified but most judges happy

to correct due to over riding duty to ensure justice is seen to be done;

Galbraith; Spain not advisable.

Which Court

All go to Magistrates’ first

Triggers for Crown Court

Advantages and disadvantages

Tactical considerations To plead or not to plead Why plead? Commercial -v- legal Future implications Maybe a basis of plea? Could result in a Newton hearing Not guilty; always a risk but with no way to reclaim

defence costs and sentencing due to increase dramatically are we likely to see more trials?

Sentencing

Lack of consistency and certainty Old guidelines only for fatalities Magistrates’ already have unlimited fines now Next year the sentencing guidelines.

New Magistrates’ Court Sentencing Powers Section of the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (LASPO) came into force on 12 March 2015

Provides for unlimited fines in magistrates' courts

Prior to 12 March 2015 capped at either a statutory maximum of £5,000 or a higher amount where legislation provides for it, for example:(£20,000 for H&S offences and £50,000 for environmental offences)

Turnover Brackets

Micro under £2 million Small £2million - £10million Medium £10million - £50million Large over £50million

Very large – No guidance The true financial position of the organisation What about the public sector? Discount likely to be

preserved

Culpability Different criteria for organisations and individuals Organisations

Very high – deliberate of flagrant breach High – falling far short Medium – fell short but not high or low Low – minor failings, efforts to comply but not enough

Individuals Deliberate –deliberate or flagrant disregard Reckless – wilful blindness to risk Negligent – reasonable care not taken Low

Harm Stage 1 – use likelihood of harm and seriousness harm

risked to determine harm category

Designed to reflect that actual harm is not part of offence but exposure to risk is

Stage 2 – consider whether significant number of people exposed to risk and whether the offence was a significant cause of actual harm

If so, move up a level or up the category range

Harm continued Death or serous injury as a consequence of breach will

normally be category 1 because they will tend to demonstrate the type of harm risked was high

Should not move up a level if actual harm is less that harm risked

What about freak accidents?

“Actions of victims are highly unlikely to be considered contributory events.”

Actual case -v- potential new sentenceHugo Boss Mirror fell on a child in a shop Culpability - High (sentencing remarks: Obvious risk) Harm – Must be Category 1 Turnover - £192,881,481 in 2014 Large or possibly very large because well over

£50million Actual fine £1.2million Starting point £2.4million Range £1.5-6 million

Let’s work one through together I P Freely Breweries Ltd Turnover £240 million Asphyxiation in fermentation vessel Untrained employees with no confined spaces training

or breathing apparatus Board level decision to cut contract with expert cleaning

co in favour of own employees Ignored warnings from contractor about atmosphere Death and serious injury to rescuer

Now it’s your turn New guidelines; old case Apply the guidelines We want to know what YOU think the Court would have

to do under the new guidelines Now here’s the shocker….

A brave new world Sentencing is changing We are seeing increasing costs, not unusual to

corporate prosecutions, think about banking fines etc. Although time to pay, in serious cases the court will not

be overtly concerned about putting businesses out of business.

There is some hope, only 2 of the 12 Corporate Manslaughter cases that have been prosecuted have met or exceeded the guidelines starting point of £500,000

ThanksMatthew Breakell

Solicitor

mbreakell@dacbeachcroft.com

0113 251 4813

Charlotte Miles

Solicitor

cmiles@dacbeachcroft.com

0113 251 4906