Alan Millband Partner – Health, Safety and Environmental Lawyer Howes Percival LLP DEATH AT WORK – CRIMINAL LEGAL CONSEQUENCES

Investigation Work-Related Deaths Protocol “Since its introduction in 1998, the protocol has become a tried and tested approach to effective liaison between the signatory organisations when investigating a work-related death. All eight signatory organisations recognise the need for investigating and prosecuting authorities to engage with each other and to share information and best practice”. Death at work – criminal legal consequences

A “work-related death” for the purposes of WRPD? A work-related death is a fatality resulting from an incident arising out of, or in connection with, work. The principles set out in this protocol also apply to cases where the victim suffers injuries in such an incident that are so serious that there is a clear indication, according to medical opinion, of a strong likelihood of death. The police: will conduct an investigation where there is an indication of the commission of a serious criminal offence (other than a health and safety offence). HSE (or other safety enforcing authority): investigates possible health and safety offences. Death at work – criminal legal consequences

Who takes charge under WRDP? Where investigation gives rise to a suspicion that a serious criminal offence (other than a health and safety offence) may have caused the death, the police will assume primacy for the investigation. Where it becomes apparent during the investigation that there is insufficient evidence that a serious criminal offence (other than a health and safety offence) caused the death, the investigation should be taken over by the enforcing authority. Police can resume primacy where new evidence of a serious criminal offence emerges. Coroner’s intervention, judicial review and other legal proceedings can result in further consideration of the evidence. Death at work – criminal legal consequences

Police powers - Derive (mostly) from the Police and Criminal Evidence Act 1984 Power of arrest HSE Inspector’s powers - Set out in section 20 Health and Safety at Work etc Act 1974 No power of arrest Death at work – criminal legal consequences

Out of interest, who would you rather have crawling all over you? Death at work – criminal legal consequences

Out of interest, who would you rather have crawling all over you? Death at work – criminal legal consequences

Typical investigation scenario Arrival at premises Scene preservation and inspection (measurements, photos, etc Witnesses interviewed and re-interviewed Documents and other materials seized Enforcement notices Interviews under caution (PACE interviews) Decision Quick discussion – what effect does all the above have on the organisation? Death at work – criminal legal consequences

The Coroner’s investigation into a death The Inquest is only a part of the investigation Violent/unnatural death – opening and adjourning the Inquest Coroners Act 2009 section 5(1) – matters to be ascertained: (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the registration particulars Under the Act must suspend investigation where someone may be charged with a homicide or related offence The Coroners (Inquests) Rules 2013 Pre-Inquest Review Hearings (rule 6) Self-incrimination (rule 22) Adjournment where likely homicide (rule 25(4)) Death at work – criminal legal consequences

The Coroner’s investigation into a death - continued The Inquest Rule 8 dilemma (conclude within 6 months of death or as soon as reasonably practicable after that date) Section 7 – jury required (death by accident etc reportable to Government department/Inspector) What goes on? What’s the significance? Relevance of the conclusions Conclusions 2009 Act Schedule 5 para 7 – duty to report to prevent future risk of death (and rules 28 and 29 stipulations regarding response) Death at work – criminal legal consequences

The decision to prosecute – CPS involvement Serious criminal offence(s) (i.e. homicide) or health and safety offence(s) Code for Crown Prosecutors Evidential test sufficient evidence to provide a realistic prospect of conviction against each suspect Public Interest test where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest Death at work – criminal legal consequences

Offences Either way or Indictable Corporate Manslaughter/Homicide Gross Negligence Manslaughter Health and safety offences Directors and senior managers/officers Employees Death at work – criminal legal consequences

Definitive Sentencing Guideline 24. The offence of corporate manslaughter, because it requires gross breach at a senior level, will ordinarily involve a level of seriousness significantly greater than a health and safety offence. The appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds. 25. The range of seriousness involved in health and safety offences is greater than for corporate manslaughter. However, where the offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more. Death at work – criminal legal consequences

Penalties on conviction for health and safety offences – Magistrates’ Courts Fine - up to £20,000 (£5,000 section 7 HSWA) Prison – usually up to 12 months Crown Court Fine- no upper limit Prison – up to 2 years Prosecution costs Death at work – criminal legal consequences

Corporate Manslaughter/Homicide – The way in which the body corporate’s activities were managed or organised - Caused the death Amounted to a gross breach of the relevant duty of care The role of senior management in the breach was substantial (failings = collective) As at 31.X. 14 – 7 convictions (2 after trial); 2 acquittals; 4 more kicking-off Nearly 150 cases considered by CPS between 2011 and 2013 Nearly 50 active cases at present Death at work – criminal legal consequences

Gross Negligence Manslaughter – Breach of duty of care Gross breach Significant cause of the death Its place alongside other charges Death at work – criminal legal consequences

Sentencing in action – what do the courts take into account? The SGC Definitive Guideline The circumstances in which the offending took place The gravity of the offence The means of the offender Aggravating features Mitigating features Death at work – criminal legal consequences

Optional extras – Remedial orders - Put it right Publicity orders - Princes SC – powerboat mag - Mobile sweepers – 2 local papers Bad press/PR generally Loss of faith - Internal and external Death at work – criminal legal consequences

Some fines - Corporate manslaughter Cotswold Geotechnical Holdings - £385,000 JMW Farms Ltd (Co. Armagh) - £187,500 Lion Steel Equipment Ltd - £480,000 Health and Safety Offences Transco (re Larkhall gas blast) - £15,000,000 Balfour Beatty (re Hatfield) - £13,500,000 Thames Trains (Ladbroke Grove) - £2,000,000 Death at work – criminal legal consequences

Consequences of health and safety non-compliance – Harm Disruption Investigation Enforcement action Legal action (criminal and civil) Reputational damage Other and “hidden” costs Death at work – criminal legal consequences

“Hidden” costs ? Legal defence fees Increased insurance premiums Reputation Lost opportunity Loss of production Payments to deceased’s family Time devoted – from incident to endgame Death at work – criminal legal consequences

Before we get to your turn, we have a question. If you had to, which of these would you choose? A.Eat the contents of this – B.Drink the contents of this – C.See next slide - Death at work – criminal legal consequences

Tell these people you killed the person they loved most in the world? Death at work – criminal legal consequences

You’ve heard about the consequences – now go back to work and double your efforts to prevent them……… Any questions? Death at work – criminal legal consequences