Prosecution and Sentencing of Individuals - 13 May Zoe Betts Senior Associate

Transcription

1 Prosecution and Sentencing of Individuals - 13 May 2015 Zoe Betts Senior Associate

2 Zoe Betts Senior Associate, Regulatory Team Qualified 1 September 2004 Specialist Health & Safety practitioner since August 2008 Member of IOSH and holder of NEBOSH General Certificate Legal 500 recognition for Health and Safety practice Worked on a series of high profile cases including the first prosecution under the Corporate Manslaughter and Corporate Homicide Act 2007

3 Where do H&S liabilities come from?

4 Corporate v Individual Responsibilities V

5 Corporate H & S Criminal Duties: Corporate H&S duties: A positive duty to maintain ( ensure ) a state of affairs exists (at all times) that is free from material risks to the health and safety of employees, contractors and members of the public* Reasonable Practicability limits the general duty to guard against risks Allows organisations to discharge its duties if it can prove the adoption of [further] measures which would make it possible to ensure the safety and health of persons would be [grossly] disproportionate in terms of time, money and effort when balanced against the risk *(Sections 2 and 3 HSWA 1974)

6 Continued Corporate Section 3 Duty to ensure the health safety and welfare of employees Section 2 Duty to employees Duty to nonemployees Duty to ensure the health and safety of non-employees So far as is reasonably practicable

7 Individuals H & S Criminal Duties: Duty to take reasonable care of self and others affected by work (s.7 - HSWA 1974) Section 7 Individuals Where an offence has been committed with the consent, connivance, or attributable to any neglect on the part of any director, manager or a person who purports to act in that capacity, he/she as well as the company shall be guilty of that offence (s.37 HSWA 1974) Duty of employees Section 37 Liability of directors and senior managers

8 consent, connivance or attributable to any neglect Q. What does this mean in practice? R v P [2007] EWCA Crim 1937 Court of Appeal stated the correct question in terms of neglect would always be whether, where there was no actual knowledge of a state of fact, nonetheless, the officer in question of that body corporate should have been, by reason of the surrounding circumstances, put on enquiry so as to require him to check that relevant safety procedures were in place.

9 Workplace Issues for Individuals Running safety risks to save money Sanctioning or promoting unsafe working practices Approving inadequate method statements or risk assessments Failure to perform individual and collective responsibilities diligently

10 H & S Penalties Corporate Unlimited fine Remedial order Individuals Unlimited fine A maximum of 2 years imprisonment Can be disqualified as a director for up to 15 years Corporate manslaughter Unlimited fine (potentially millions of s) Publicity order Gross negligence manslaughter for individuals Life imprisonment

11 Motivation to prosecute individuals The HSE Enforcement Policy Statement general principles are well established: - Proportionality Targeting Consistency Transparency Accountability Specifically, in relation to individuals: - enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted. In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so in accordance with this policy. Where appropriate, enforcing authorities should seek disqualification* *(Company Directors Disqualification Act 1986)

12 HSE Guidance OC 130/08 Prosecution warranted where personal acts or failings and is proportionate bearing in mind the nature and extent of the breach and the risk Most likely to prosecute employees where they have shown a reckless disregard for health and safety and such disregard has resulted in serious risk A number of factors will be taken into account such as whether the offence is a result of action/inaction of the individual, whether in their control, previous advice/warnings, is offence flagrant, risks arising and would a prosecution be fair, appropriate and warranted

13 Other considerations GROSS NEGLIGENCE MANSLAUGHTER Where an individual has committed an act or omission that amounts to gross negligence Can relate to anybody within an organisation from senior management to a site operative There are a steady stream of work-related gross negligence manslaughter cases where convicted individuals face the very real risk of a prison sentence, often from around 3 years and upwards.

14 Disqualifications Section 2 (1) Company Director Disqualifications Act 1986: - Applies to directors prosecuted for indictable offences in connection with the management of a company - Directors face disqualification up to 15 years max and 2 years min - Meant to act as a deterrent - Affect to earning potential and ability to raise finance

15 Health & Safety Advisors / Consultants - Expected to use their knowledge and skills to promote a positive health and safety culture in the workplace; - Responsible for ensuring that Company s and their employers and workers comply with safety legislation and safety policies / practices are adopted and adhered to. But what happens when this goes wrong?...

16 Current Trends

17 Statistical Analysis HSE statistics suggest it may be becoming more common for individual directors and managers to be targeted for prosecution in serious health and safety cases In 2012, prosecutions under s37 HSWA were said to have increased by 400% in the past 5 years = Approx directors and managers prosecuted in the UK each year

18 H&S Consultant Goes Straight to Gaol! Basement excavation in 2010 on a residential property in Fulham requiring underpinning of the supporting walls; Operative working in an unsupported trench when side wall collapsed and he was fatally crushed; Deceased employed by ground works sub-contractor; Mr Golding was an independent H&S consultant contracted to provide advice to the contractor and for drafting method statement / undertaking site inspections Alleged failings inadequate RAMS / failure to properly inspect works against RAMS / failure to ask questions re temporary works / failed to stop works No companies (e.g. PC) prosecuted, just 2 individuals

19 H&S Consultant Goes Straight to Gaol! Trial at Southwark Crown Court in November/ December 2014; Site manager convicted of gross negligence manslaughter - 3 years and 3 months imprisonment; Safety adviser convicted of s7 HSWA offence - 9 months immediate imprisonment; Sentencing Judge commented that the safety advisor s failure to do anything when on site showed a level of disregard for safety that was staggering. INDG 417 is a reference Guide for all senior managers (

20 Suspended sentence for manslaughter! RK Metalworks and Mohammed Babamiri: Accident 11/1/2013 Snaresbrook Crown Court Trial 2015; Fatality involving five tonne guillotine fell from forklift and crushed a worker; Inadequate Lifting operations, Risk assessment, Work equipment, Safe systems of work; Company Guilty Section 2 / 3 HSWA - 75,000 fine each offence MD Guilty of individual GNM and S37-18 months jail, suspended 2-yrs; Hawkins employee Guilty S7 - six month jail, suspended 2-yrs.

21 Injured party prosecuted for H&S breach! Extensive ground work being carried out where trench being dug unsupported sides up to 2.5 metres in height; Director and another employee were working in the sheer-faced excavation when it collapsed; Employee avoided injured, but director partially buried when the sides of the excavation collapsed; Suffered a broken leg and ankle; Company and Director both prosecuted; Company were fined 15,000 and Director who was the Injured Party in this case also fined 15,000.

22 Other case examples. GA Projects Limited & Mohammed Zarook: 100-year old resident died after injuries suffered in a fall; Company Section 3(1) HSWA - 150,000 fine Mr Zarook Section ,000 fine and 100,000 costs CSC Construction Limited & Roland Couzens: Refurbishment of residential properties; Breach by no hot water for dusting off contaminants; Exposed workers to risk of harm for more than 3 months no actual harm; Director prosecuted S37-2,000 fine & 3,102 costs

23 Lessons from Sterecycle: Worker was killed in a blast at Sterecycle recycling plant; Suffered fatal head injuries when a door to a pressure chamber exploded; The investigation found incident was preventable and was considered serious and systemic neglect ; Company prosecuted for Corporate Manslaughter; Operations Director Operations Manager - all prosecuted s7 HSWA. Maintenance Manager So what was the outcome here?

24 All charges against all three individuals were dropped during the course of the proceedings; The Company went on to be convicted of Corporate Manslaughter after trial; Company was in liquidation but fined 500,000. Q. What was the real motivation to bring charges against individuals here?

25 Final Thoughts. Challenges: Imprisonment immediate / suspended Manslaughter charges Increasing levels of fines Economic Climate Remedial actions: Lead by example Actively engage & pro-active approach Worker involvement Assessment and review

26 Questions Zoe Betts (Senior Associate) Mobile: Zoe Betts, Pinsent Masons