Corporate Manslaughter and Corporate Homicide Act 2007 John Johnston www.healthandsafetytips.co.uk

Health and Safety Law Health and safety law states that organisations must: provide a written health and safety policy (if they employ five or more people); assess risks to employees, customers, partners and any other people who could be affected by their activities; arrange for the effective planning, organisation, control, monitoring and review of preventive and protective measures; ensure they have access to competent health and safety advice; consult employees about their risks at work and current preventive and protective measures. This slide is taken directly from the leaflet to accompany these slides for this presentation – indg417. Fairly self-explanatory and back to basics. www.healthandsafetytips.co.uk There is no such thing as a 'stupid' or 'daft' health and safety question!

Health and Safety Law Individual prosecutions currently in force under The Health and Safety at Work etc Act 1974 (HSWA) S.37 HSWA for Directors/Managers, S.7 HSWA for Employees. Possible prison sentence for individuals on some H&S offences. Health and Safety (Offences) Act 2008 - in force Jan 2009 Current maxima: £5k or £20k for summary offence in lower courts, depending on offence; unlimited fine for indictable offence; imprisonment not available for most offences (but up to 6 months in magistrates court / 2 years in Crown Court for few offences e.g, failing to comply with a prohibition notice or breaching a licensing requirement). New maxima: £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. Section 37 relates to the duties placed upon Directors and Managers. Section 7 relates to the duties placed upon employees. Offences and prosecution are limited. The new Offences Act will increase the penalties for organisations and will increase the likelihood of imprisonment for individuals for many more offences. www.healthandsafetytips.co.uk There is no such thing as a 'stupid' or 'daft' health and safety question!

Corporate Manslaughter and Corporate Homicide Act 2007 Introduces new manslaughter offence for organisations. In force since 6 April 2008. The offence – “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.” 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, i.e. failure to comply with any H&S legislation; failure to comply with any H&S guidance; attitudes, policies, systems or accepted practices. (S(8)) www.healthandsafetytips.co.uk There is no such thing as a 'stupid' or 'daft' health and safety question!

What are the Penalties? Unlimited fine Publicity order Remedial order Fines are expected to be: 5 to 10% of turnover (Transco £15m = less than 1% of turnover). 2.5% of turnover for offences that come under the HSWA. Possible equity fines. Individual prosecutions will still remain under the HSWA S.37 HSWA for Directors/Managers, S.7 HSWA for Employees. Possible prison sentence for individuals. www.healthandsafetytips.co.uk There is no such thing as a 'stupid' or 'daft' health and safety question!

Case Study 1 - Reliance Scrap Metal Merchants A Dorset scrap-metal company was fined and its director imprisoned following the death of an employee after a gas cylinder exploded – the circumstances of which the director tried to cover up. The scrap-metal company was found guilty of various breaches of the HSWA and was fined £60,000. Director, David Matthews changed his plea in the witness box from not guilty to guilty in relation to breaching two counts of: S.37 of HSWA, with respect to the failure to discharge a duty of the HSWA. Matthews was fined £1,000 and sent to prison for three years for perverting the course of justice by trying to cover up the circumstances of the incident. Costs will be determined at a hearing on 20 October 2008 at Winchester Crown Court, in which the fine awarded against the company may be reduced. Full incident brief: A Dorset scrap-metal company has been fined £60,000 and its director imprisoned following the death of an employee after a gas cylinder exploded – the circumstances of which the director tried to cover up. In a case conducted by the Crown Prosecution Service, on behalf of Dorset Police and the HSE, Winchester Crown Court heard on 23 September that the cylinder exploded at the Poole site of Reliance Scrap Metal Merchants, causing fatal injuries to employee Tommy Mooney and serious burns to director David Matthews. The court heard that on 9 May 2005, Matthews had been using a compactor machine to crush and shear a number of pressured cylinders, which were being hand-fed into the shear-blade path of the machine, and held there until cut. A huge explosion and fireball occurred when a cylinder of acetylene gas was crushed by the guillotine blade of the machine. Both men were seriously burned, but Mr Mooney died of his injuries in Poole Hospital on the same day. In mitigation, Matthews said he had put himself and not Mr Mooney in the most dangerous part of the operation. If he had known there was any potential for an explosion, he would not have put himself or Mr Mooney in such a position. The company did not offer separate mitigation. David Bell, a key HSE inspector on the case, commented: “This is a very sad case. Common sense tells you that if you cut up a pressurised cylinder it will explode, and if it contains flammable gas then the consequences are likely to be horrific. Mr Mooney would be alive today had such risks not been taken. He warned: “I urge the scrap industry to think very carefully about how it deals with gas cylinders. They should never be cut or crushed. Most cylinders remain the property of a gas company and should be returned. If you do come across gas cylinders in your scrapyard, take them out of the process and store them in a secure compound before contacting the cylinder owners to arrange collection.” Reliance Scrap Metal pleaded guilty to breaching: • s2(1) of HSWA 1974 by not ensuring its employees’ safety; • s3(1) of HSWA by failing to ensure the safety of non-employees; • reg.3 of the Management of Health and Safety at Work Regulations 1999 by failing to conduct a suitable risk assessment; • reg.4 of the Provision and Use of Work Equipment Regulations 1998 (PUWER) by not providing suitable work equipment; and • reg.12(3)(e) of PUWER, by failing to prevent the unintended explosion of work equipment. The £60,000 fine relates to the Management Regulations charge only; no fine was imposed by the judge for the other charges. David Matthews changed his plea in the witness box from not guilty to guilty, in relation to breaching: • s37 of HSWA, with respect to the failure to discharge a duty under s2(1) of the Act; and • s37 of HSWA, with respect to the failure to discharge a duty under s3(1) of the Act. He was fined £500 on each charge and sent to prison for three years for perverting the course of justice by trying to cover up the circumstances of the incident. Costs will be determined at a hearing on 20 October at Winchester Crown Court, in which the fine awarded against the company may be reduced. The HSE has warned that it will be targeting scrapyards and waste-metal recycling plants over the next six months, focusing on fire and explosion risks, falls from height, mechanical lifting operations, and workplace transport. www.healthandsafetytips.co.uk There is no such thing as a 'stupid' or 'daft' health and safety question!

Case Study 2 – Tebay Rail Incident On Sunday 15 February 2004 a runaway engineering trailer struck a group of railway workers on the West Coast Main Line at Tebay in Cumbria. Four men were killed and three others were injured. On 17 March 2006 Mr Roy Kennett was found guilty of four counts of manslaughter and a charge under section 7 of the HSWA. Mr Mark Connelly was found guilty of four counts of manslaughter and three HSWA charges. Mr Kennett received a two-year custodial sentence, and Mr Connelly received a nine-year custodial sentence. Full incident brief: On Sunday 15 February 2004 a runaway engineering trailer struck a group of railway workers on the West Coast Main Line at Tebay in Cumbria. Four men were killed and three others were injured. The Crown Prosecution Service led on the prosecution of this case, following a British Transport Police and HSE HMRI investigation into this incident. On 17 March 2006 Mr Roy Kennett was found guilty of four counts of manslaughter and a charge under section 7 of the Health and Safety at Work Act (HSWA). Mr Mark Connelly was found guilty of four counts of manslaughter and three HSWA charges (two under Section 8 and one under Section 3). Mr Kennett received a two-year custodial sentence, and Mr Connelly received a nine-year custodial sentence. Both men have appealed against sentencing. Network Rail introduced a new code of practice in September 2004 – COP 014 Trailers and Attachments with Road Rail Vehicles and Rail Mounted Maintenance Vehicles - to help develop additional control measures for road rail vehicles and rail mounted maintenance machines. This code of practice was developed in consultation with the industry, equipment users and suppliers, trades unions and HSE. HMRI believes that compliance with the code will prevent a similar trailer incident occurring in the future. HMRI will continue to monitor the arrangements to gain compliance with it. HM Railway Inspectorate September 2006 www.healthandsafetytips.co.uk There is no such thing as a 'stupid' or 'daft' health and safety question!

Options for HSfB? OR INDG417 HSfB found guilty H&S firm first to be charged under corporate killing legislation. INDG417 OR www.healthandsafetytips.co.uk There is no such thing as a 'stupid' or 'daft' health and safety question!

HSfB GUILTY HSfB GUILTY HSfB GUILTY www.healthandsafetytips.co.uk There is no such thing as a 'stupid' or 'daft' health and safety question!