IOSH North East of Scotland Branch

Health, Safety & Environmental Legal Update

Willie Park

TOPICS

• CORPORATE MANSLAUGHTER/CORPORATE HOMICIDE UPDATE

• PROSECUTION OF INDIVIDUALS

• REVIEW OF RECENT FINES & SENTENCING TRENDS

• HEALTH & SAFETY DIVISION REPORT

• ENVIRONMENTAL REGULATORY REFORM IN SCOTLAND

CORPORATE MANSLAUGHTER/CORPORATE HOMICIDE UPDATE

• IN FORCE SINCE 6 APRIL 2008• 10 CONVICTIONS TO DATE (4 TRIALS, 6 GUILTY

PLEAS)• 2 ACQUITTALS• 4 ONGOING CASES

– BALDWINS CRANE HIRE LTD– HUNTLEY MOUNT ENGINEERING LTD– McGOLDRICK ENTERPRISES LTD (NI)– G&J CROTHERS LTD (NI)

FINES FOR CORPORATE MANSLAUGHTER

PROSECUTION OF INDIVIDUALS

• EVIDENCE THAT THE HSE’S ENFORCEMENT POLICY IS PLACING A GREATER EMPHASIS ON THE PROSECUTION OF INDIVIDUALS

• PROSECUTIONS UNDER s.37 HSWA INCREASED BY 400% IN PAST 5 YEARS

• IN PRACTICE, 30-40 DIRECTORS AND SENIOR MANAGERS ARE PROSECUTED IN THE UK EACH YEAR

RICHARD GOLDING & CONRAD SIDEBOTTOM

• LABOURER CRUSHED TO DEATH WHILST WORKING ON A BASEMENT EXCAVATION IN FULHAM

• SITE MANAGER AWARE SITE WAS DANGEROUS BUT TOOK NO STEPS TO ENSURE IT WAS SAFE

• H&S ADVISOR AWARE OF THE RISKS AS HE HAD PREPARED THE METHOD STATEMENT FOR WORK AT THE SITE

• COURT FOUND THE METHOD STATEMENT WAS INADEQUATE• H&S ADVISOR TOOK NO ACTION EVEN THOUGH HE KNEW

THE METHOD STATEMENT WAS NOT BEING FOLLOWED AND HE DID NOT QUESTION TEMPORARY WORKS

• JUDGE FOUND H&S ADVISOR’S EVIDENCE “LUDICROUS” AND THAT HIS FAILURE TO DO ANYTHING WHEN ON SITE SHOWED A “STAGGERING” DISREGARD TO PEOPLE WORKING ON THE SITE

RICHARD GOLDING & CONRAD SIDEBOTTOM

• SITE MANAGER SENTENCED TO 3 YEARS 3 MONTHS IMPRISONMENT FOR GROSS NEGLIGENCE MANSLAUGHTER

• H&S ADVISER SENTENCED TO 9 MONTHS IMPRISONMENT FOR FAILING TO TAKE REASONABLE CARE FOR PERSONS WHO MAY BE AFFECTED BY HIS ACTIONS OR OMISSIONS AT WORK – s.7 HSWA

DEREK BARNES & Paddle Ltd

• Derek Barnes, Director, Paddle Ltd

• Fined £32,000 plus £11,000 in costs,and sentenced to eight monthsimprisonment suspended for twoyears and disqualified from acting asa director for three years.

• July 2013 plea of guilty to s37 relatingto 2 working at height incidents:

• August 2011: Injury after 4 metre fallfrom badly constructed scaffolding being used for excessive loads

• March 2012: Worker standing in the elevated bucket of an excavator at the same site. A concerned householder took a photograph and told HSE.

• Company fined £56,000 plus £11,000 costs.

RECENT FINES

• PNT CONTRACTORS LTD & PAUL CONNOLLY

– PAUL CONNOLLY WORKING ON EXCAVATION SITE WHEN SIDES COLLAPSED ON HIM

– SIDES OF UP TO 2.5m UNSUPPORTED– PNT CONTRACTORS FINED £15,000 FOR

BREACHING CDM REGULATIONS– PAUL CONNOLLY FINED £15,000

RECENT FINES (cont)

• GLENHOLME NURSERY

– EMPLOYEE WORKING ALONGSIDE A MACHINE FOR GATHERING UP FIBRE SHEETING FULL OF VEGETABLES AND PLANT WASTE

– EMPLOYEE “TENSING” THE SHEET AND FEEDING IT INTO MACHINE WHEN GLOVE BECAME ENTANGLED ON SHEET

– LEFT ARM SEVERED WHEN DRAGGED INTO MACHINE– INVESTIGATION REVEALED UNGUARDED PART OF

MACHINE NOT IDENTIFIED AS A RISK– NO SAFE SYSTEM OF WORK IN PLACE AND DANGEROUS

WORKING PRACTICE HAD DEVELOPPED– COMPANY FINED £18,000

RECENT FINES (cont)

• WESTFIELD SHOPPINGTOWNS LTD

– SUBCONTRACTORS WORKING ON INSTALLATION OF NEW AIR CONDITIONING UNITS CARRYING OUT FINAL CHECK BEFORE CHRISTMAS BREAK

– FOUND TWO SECTIONS OF DUCT NOT SECURELY LASHED DOWN SO UNTIED THEM BEFORE SECURING FIRMLY

– ONE CONTRACTOR STEPPED BACK AND FELL THROUGH AN UNPROTECTED GAP

– BROKEN AND DISLOCATED SHOULDER– FALL COULD EASILY HAVE BEEN AVOIDED WITH EDGE

PROTECTION AROUND THE GAP– FINED £10,000

RECENT FINES (contd)

• DF CLARK BIONOMIQUE

– ECOLOGIST SURVEYING LOFT SPACE FOR WILDLIFE IN DERELICT HOSPITAL BUILDING

– FELL 4m THROUGH A LOFT HATCH TO A CONCRETE FLOOR

– FRACTURED VERTEBRA IN NECK & BACK BRACE FOR THREE MONTHS

– COMPANY ENGAGED TO SURVEY SITE WHILST BEING SOLD FOR REDEVELOPMENT

– COURT FOUND THE ASSESSMENT WAS TOO GENERAL AND NOT TAILORED TO THE SITE

– FINED £12,000 FOR BREACHING s.2(1) HSWA & r.4 WAHR

RECENT FINES (contd)

• FLEXITALLIC LTD

– INDUSTRIAL OVEN USED TO BAKE GASKET SHEETS AND REMOVE FLAMMABLE PARAFFIN THAT USED IN MANUFACTURING PROCESS

– OPERATORS PUT A PACK OF SHEETS PUT INTO OVEN UNAWARE THAT THEY WERE ONLY PARTIALLY DRY

– VAPOURS IGNITED WHEN MADE CONTACT WITH ELECTRICAL HEATING ELEMENTS CAUSING A FLASHOVER AND THEN A FLASHBACK

– DRYING PROCESS HAD BEEN OUTSOURCED AND THEN TAKEN BACK WHICH HAD CAUSED DISRUPTION

– INSTRUMENTATION ON THE DRIER HAD FAILED AND NOT BEEN REPAIRED– DRIER WAS KNOWN TO CUT OUT– “THE INGREDIENTS OF AN ACCIDENT WAITING TO HAPPEN”– FINED £10,000

New Health & Safety and Corporate Manslaughter Sentencing Guidelines • Sentencing Council’s consultation on draft guideline for health and safety

offences, corporate manslaughter, food safety and hygiene offences.

• Consultation began on 13 November and runs until 18 February 2015.

• Comments can be submitted via: https://consult.justice.gov.uk/sentencing-council/health-and-safety-offences-guidelines

• Sentencing Council is seeking views on: the scope of each guideline; the overall approach proposed to sentencing organisations and individuals for these offences; the principles of sentencing in this area; and, the sentences that should be passed for health and safety, corporate manslaughter and food safety offences.

New Health & Safety and Corporate Manslaughter Sentencing Guidelines • ‘The guidelines are being introduced due to a lack of comprehensive

guidance for sentencers in relation to these offences. While there is a guideline covering corporate manslaughter and fatal health and safety offences, there is no specific guidance on non-fatal health and safety offences.’

• Existing guidance only covers offences committed by organisations rather than individuals. This marks the first time that guidelines will cover all the most commonly sentenced health and safety offences.

• ‘The review of guidelines is taking place in part due to concerns that some sentences imposed for these offences have been too low, particularly in relation to large organisations convicted of the most serious health and safety offences.’

New Health & Safety and Corporate Manslaughter Sentencing Guidelines • Headline Grabbers

• Fatal health and safety offences committed by ‘Large Companies’ (£50million + turnover) could carry fines of up to £10million!!

• ‘Large Companies’ (£50 million + turnover) found guilty of corporate manslaughter could face fines of up to £20million!!

New Health & Safety and Corporate Manslaughter Sentencing Guidelines • Michael Caplan QC, a member of the Sentencing Council, said: “We want to

ensure that these crimes don’t pay. They can have extremely serious consequences, and businesses that put people at risk by flouting their responsibilities are undercutting those that play by the rules and do their best to keep people safe.”

• “Our proposals will help ensure a consistent approach to sentencing, allowing fair and proportionate sentences across the board, with some of the most serious offenders facing tougher penalties. We want to make sure it is clear that it will be cheaper to comply with the law than break it. This is a consultation: we want people to give us their views on our proposals so sentencing in this area is fair, effective and proportionate.”

The Guidelines objectives

• Punishment – penalty to reflect seriousness and financial circumstances of the offender

• Remove any economic gain derived from the offence

“the fine should be sufficiently substantial to have a real economic impact”

The proposed approach

• Step one – Determine offence category: harm and culpability

• Step two - Starting point – is the company micro, small, medium or large (or very large) based on turnover

• Step three – is proposed fine proportionate• Step four – consider other factors that might require

adjustment – e.g. Impact on employees and service users

• Plus others – including credit for guilty plea

Categories of organisation

• Based on turnover - very important for calculating fines– Micro – not more that £2m– Small – Between £2m and £10m– Medium - £10-£50m– Large - £50m and above– Very large companies – may be necessary to move

outside the proposed range to ensure the fine is proportionate

Categories of harm

• Level A – most serious• Death• Physical or mental impairment resulting in lifelong dependency• Reduced life expectancy – does that include all asbestos exposures?• Level B• Physical or mental impairment not caught by A which has a long term

substantial & long term effect to carry out day to day activities/return to work• Progressive, permanent or irreversible condition• Level C – everything else• Required to link these to likelihood of harm high/medium/remote and then

place into categories 1-4 – 1 the most serious

Culpability - High

• Level of culpability extremely important• Very High = “deliberate breach of or flagrant disregard

for the law”• High = Offender fell far short of the appropriate standard;

for example,– Failing to put in place measures that are recognised standards

in the industry– Ignoring concerns raised by employees or others– Failing to make appropriate changes following prior incidents– Allowing breaches to subsist over a long period of time

Lower culpability

• Medium = “offender fell short of the appropriate standard in a manner that falls between “high and low””

• Low – Offender did not fall far short of appropriate standard; for example,– Significant efforts were made to address the risk

although they were inadequate on this occasion– There was no prior event or warning indicating a risk

to health and safety

What might some fines look like

• Large company• Very high culpability/Harm• Starting point £4m – range £2.6m to £10m• Medium culpability/harm – starting point £130K – range

£50k - £350K• Corporate manslaughter – Starting point - £7.5m – range

£4.8m - £20m• NB – there are also sentencing guidelines for individuals

with custody thresholds set at “neglect”

Mitigating v Aggravating features

• Aggravating– Cost cutting– Breach of an order– Obstruction of justice– Poor health and safety record– Falsification of records– Deliberate failure to obtain a

licence– Exploiting victims

• Mitigation– No previous convictions or no

relevant/recent convictions– High level of co-operation

beyond what would always be expected

– Good health and safety record– Effective health and safety

procedures in place– Self reporting, co-operation

and acceptance of responsibility

HEALTH & SAFETY DIVISION REPORT

• INSPECTORATE OF PROSECUTIONS IN SCOTLAND

– SPEED UP PROSECUTIONS– CONSIDER MORE PROSECUTIONS ON SUMMARY

COMPLAINT– CLARITY AROUND WHICH CASES WILL BE DEALT

WITH BY THE HSD

Scope of environmental law?

• Environmental law covers a wide range of topics, including contaminated land, waste, water, sewerage, air pollution, noise, smells, animal by-products, radioactive substances, asbestos, sustainability and energy use

• It is primarily statute based, with each statute creating a regulatory regime with a defined public agency regulator

• But don’t forget common law remedies for private disputes such as contractual remedies, nuisance or tort (delict)

• Also remember Director & Officer liability

ENVIRONMENTAL REGULATION – WHO REGULATES WHAT?

But don’t forget others including…

Approach to Enforcement: Scotland• “Toughening up”

• Different structure: regulator/police plus Procurators Fiscal and Crown Office

• Increasingly risk-based approach to regulation

• Major changes underway– Regulatory Reform (Scotland) Act 2014– Enforcement toolkit consultation due this summer:

• FMPs• VMPs• Enforcement undertakings• Civil standard of proof• New offence: causing significant environmental harm• Compensation orders• Publicity orders

Scotland – new duties, new permits

• “In exercising its regulatory functions, each regulator must contribute to achieving sustainable economic growth, except to the extent that it would be inconsistent with exercise of those functions to do so”

• Single permitting system• Power for regulators to write the procedure and set what is covered

by permits and registrations• Permitting hierarchy and proportionality:

– permit – registration – notification – GBRs

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