Health and Safety
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Health and Safety Law Microsite In April 2008 Saunders Solicitors LLP launched a specialist health and safety law website, www.health-and-safety-law.co.uk which provides an overview of this important area of law and explains how we can assist in the following areas:-
To visit the site click the below link:- www.health-and-safety-law.co.uk
Corporate Manslaughter Did you know that across the world, more people are killed at work than on the roads? After many years of debate, the Corporate Manslaughter and Homicide Act 2007 (CMHA) came into force on 6 April 2008. The Act targets organisations (including companies, partnerships and government departments) whose negligent actions, or more commonly inaction, have resulted in death. Long ago, the law recognised that companies, as separate legal entities, can be convicted of manslaughter, but there have only ever been a handful of successful prosecutions against corporate bodies. Up until now companies have been prosecuted for the common law offence of gross negligence manslaughter. This has required the prosecution to show that the defendant company owed a duty of care to the deceased, breached that duty and that the breach directly caused the death of the deceased. Furthermore, it has been necessary to show that the breach of duty was so serious that it should be deemed criminal gross negligence. Prosecutions have mainly failed, as it has proved difficult to identify a “controlling mind” in a company who is also directly personally responsible for the negligence that caused the death. In large companies where healthy and safety functions are delegated and sub-delegated, those responsible for the breaches are so far removed from the boardroom that courts have been unwilling to impose criminal liability. Thus, prosecutions such as those against Great Western Trains following the Southall Crash and P&O Ferries following the Zebrugge disaster (P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72) have failed, whilst the few that have succeeded were against the smaller “one man and his dog” style companies, where the controlling mind is also directly responsible for the negligence, such as the Lyme Bay case (R v Kite and OLL Ltd, Winchester Crown Court, 8 December 1994, unreported). The call for reforms arise from public and political pressure to make companies accountable for such incidents, to deter them from carrying on their business in a unsafe fashion and to punish them appropriately if they fail. The CMHA creates the statutory offence of corporate mansalughter whereby an organisation will be guilty of an offence if the way in which its activities are managed or organised (a) causes a person's death and (b) amount to a gross breach of a relevant duty of care owed by the organisation to the deceased. The management of the so-called ‘must be "a substantial element" in the gross breach. "Senior management" is defined as "the persons who play significant roles in (i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised or (ii) the actual managing or organising of the whole or a substantial part of those activities."
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Essentially, the CMHA attempts to bridge the causal gap, by preventing directors from abrogating responsibility and by focusing on the company’s wider attitude/behaviour. Factors which the jury can consider include "the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure… or to have produced tolerance of it." This allows the corporate curtain to be pulled to one side and for the jury to examine the organisation’s workings and “take a view” on how they operate. A company convicted of corporate manslaughter can receive an unlimited fine (commentators predict these could be as high as £100 million for the largest of companies), a remedial order telling them to put preventive systems in place and, most interesting of all, a publicity order demanding that they publicise their conviction and any fine/remedial order. The idea of the publicity order is that it will hit them where it hurts most – their share price and when they are tendering for future work. All organisations have a pressing need to ensure that they are rigorously enforcing their health and safety policies and that these policies are at least as high as the industry standard. Boxes cannot just be ticked; companies need to be sure that things on the shop floor are being done properly. Likewise, some thought should be given as to who constitutes “senior management” and insurance policies should be checked to ensure they comprehensively cover the cost of defending any criminal proceedings. Saunders Solicitors LLP has extensive experience in successfully defending manslaughter and health and safety prosecutions brought against companies and individuals. Recently the firm successfully defended Henry Todd, who – along with two other mountaineers – was facing a private prosecution for the manslaughter of Michael Matthews. Mr Matthews became the youngest Briton to climb Mount Everest in May 1999 but died on the descent. The prosecution was brought by Mr Matthews’ father, businessman David Matthews who alleged that the expedition was badly run, the equipment faulty and that our client returned up the mountain to destroy or remove incriminating evidence. He also accused one of the other mountaineers of deserting his son and leaving him to die in a 100mph blizzard. The misconceived case against all the defendants was comprehensively dismissed by Judge Geoffrey Rivlin QC at Southwark Crown Court in July 2006. www.youtube.com/saunderssolicitors
Lawyers
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