Mike Appleby. WHAT THE LAW EXPECTS: What happens if something goes wrong, what does the law expect? HOUSEMANS Solicitors

Transcription

1 Operational Assurance in a Climate of Financial Restriction Chief Fire Officers Association 12 th April 2011 WHAT THE LAW EXPECTS: What happens if something goes wrong, what does the law expect? By Mike Appleby Housemans Solicitors Mobile mikeappleby@housemans.co.uk Mike Appleby

2 Health and safety management is not about the elimination of risk it is and has always been about doing what is sensible and proportionate what is reasonably practicable to manage foreseeable risk and then getting on with the task Judith Hackitt CBE, HSE Chair Annual Rivers Lecture on 18th March 2009

3 Duty of Care To ensure, so far as is reasonably practicable, the health and safety of employees (s2 HSWA) and non-employees affected by your operation (s3 HSWA).

4 Edwards v National Coal Board [1949] 1 KB 704 Definition relied upon by HSE of what is meant by reasonably practicable : The quantum of risk is considered against the sacrifice whether in money, time or trouble of controlling the risk AND. only if the risk is insignificant compared to the sacrifice will the step in question not be reasonably practicable

5 Corporate Manslaughter and Corporate Homicide Act 2007 The prosecution must prove that death has been caused by an organisation s gross breach of its duty of care that is substantially due to senior management failure The Act does not impose any extra duties

6 Duty of Care - Individuals To take reasonable care for the health and safety of himself and of others who may be affected by his acts or omissions (S7 HSWA)

7 Manslaughter - Individual The prosecution must prove: Owed a duty of care to the deceased Breached that duty of care The breach was a substantial cause of death The breach was gross ie so bad it is deserving of criminal punishment To be guilty the individual s conduct must have fallen far below the standard expected

8 Managing Operations If there is a proper system set up for health and safety that will usually be sufficient for [a director/senior manager/senior officer] to say I have done my duty. I have set up that system, in the absence of material to make it plain to him that something was actually wrong with it. Latham L J during the course of argument in R v P Ltd and G (2007) All ER (D) 173(Jul)(CA)

9 The Management of Health and Safety in the GB Fire and Rescue Service October 2010 Para 1.11 two issues of fundamental importance Competence assessment for firefighters at all levels including management A proportionate approach to risk assessment

10 Competency - Suitable for the job -Training -Knowledge -Experience -Job descriptions ( not just an HR document )

11 What is Risk? According to R v Chargot and others [2008] UKHL 73 The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material. That, in effect, is what the word risk which the statute [HSWA] uses means. It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against.

12 And R v EGS [2009] EWCA Crim 1942 says: The word risk has been interpreted in Chargot as meaning a risk which is not trivial or fanciful, but that is not a qualification to the statutory provision. It is a question of fact and degree whether a risk is trivial or fanciful The prosecution did not have to prove that the risk was appreciable or foreseeable. They had to prove that the risk was not fanciful and was more than trivial.

13 The problem is that the Courts have not distinguished between Hazard and Risk The failure to distinguish between risk and hazard is the reason why so many foolish decisions are made in the name of health and safety. The hazard is a circumstance with the potential to cause harm, the risk is the likelihood that this potential will be realised. Letter to the Times from Dr MJ Pemberton 2nd February 2006

14 Para 11 of the ACoP to MHSWR Risk is the likelihood of potential harm arising from a hazard. The extent of the risk depends on: (i) The likelihood of the harm occurring; (ii) the potential severity of the harm; and (iii) the population that might be affected by the hazard

15 Risk Assessment The risk assessment process needs to be practical and take account of the views of employees and their safety representatives who will have practical knowledge to contribute. Para 15 of the ACoP MHSWR As Mr Cooksey [of HMRI ] pointed out, a risk assessment can be a professional judgement made by competent and experienced engineers. Lord Cullen, Ladbroke Grove Rail Inquiry Part 1(2001)

16 Some thoughts on issues relevant to criminal investigations and prosecutions

17 Dealing with requests for documents 1. Just because the police/hse ask for documents does not mean to say they have to be handed over 2. The Police and HSE have different powers 3. Challenge requests that are fishing expeditions 4. The usual powers that the police rely upon arise from their power of arrest. An organisation cannot be arrested. Unless a police officer is invited onto premises he will need a search warrant. S8 PACE the magistrate must be satisfied there are reasonably grounds for believing there is evidence which is likely to have substantial value to the investigation

18 5. HSE does not have a general power of search and cannot apply for a search warrant 6. By s20(2)(k) HSWA HSE can take copies of documents required by statute and documents that are necessary for him to see for the purposes of any examination or investigation 7. Police and HSE are not entitled to legally privileged documents 8. Requests for documents can become intertwined with requests for information (eg how does a particular work process operate?): an organisation cannot give evidence, only call evidence. An organisation does not have to provide information if it does not want to.

19 Interviews under Caution An organisation cannot be arrested and so does not have to attend an interview It does not have to answer questions only put forward matters it will rely on in defence Often a well crafted prepared statement is the best tactic consider the impact on the jury

20 Expert evidence 1. Often the prosecution will rely upon generalist experts 2. A jury is more interested in hearing from an industry expert 3. The dangers of a conviction founded on the evidence of a generalist expert Recorder of Westminster R v Kone : this would mean that any and every employer would henceforth be at risk of a conviction of a serious criminal offence on a general proposition advanced by someone with no specialist knowledge of their industry that steps of a very specific nature had not been taken in it.

21 Improvement and Prohibition Notices There is a growing trend by HSE to try to rely upon these to support evidence of fault and/or wrongdoing There is greater scope for appeal following Chilcott v Thermal Transfer Ltd [2009] EWHC 2086 (Admin) Appeals must be lodged at the Employment Tribunal within 21 days of service

22 Internal Advisory Team The legal team will benefit from assistance from people within the organisation with relevant expertise / technical knowledge. This will enable a more focused and efficient approach to the defence and can often lead to the better identification and instruction of appropriate experts.

23 The human mind is prone to suppose the existence of more order and regularity in the world than it finds. Sir Francis Bacon, The New Organon, 1620

24 Being able to tell your story in a way that can easily be understood and appreciated will be an important part of being able to defend

25 THE END The views expressed in this presentation are not necessarily those of Housemans The information contained in this presentation is for guidance only and is given without responsibility on the part of Mike Appleby or Housemans for loss occasioned to any person acting or refraining from action as a result of any information or view given