Posted By Robert K Lewis How many of you heard the interviews yesterday with the Met. Police Authority spokesperson and also Ian Blair? I felt a mixture of sadness and incredulity that persons operating in the field of detecting criminal acts should think that they should not face prosecution for an action that the CPS believes is criminal in terms of H&S legislation. They also have the gall to think that they have the right to pressurise the Executive to interfere in the judicial processes. I make no judgement on the facts of the case except to say that the CPS obviously feels the facts support their decision. Ian Blair stated categorically that it was never intended by lawmakers that police operational decisions could be subject to such sanctions, but for me that is precisely why section 3 was drafted. It was to ensure that employers undertake adequate assessment of the effects of their acts and ommissions, by themselves or their staff, on the people exposed to those actions who are in effect merely by-standers. Shoot to kill policies are inherently of high risk and therefore controls against mistakes must be equally strong and robust. It is for the court now to decide if they were sufficient in the circumstances. If the government now intervenes to prevent a court hearing this would be a day when powerful organisations would start to lobby the specialness of their own case in the face of any H&S prosecution. Bob

Posted By Richard Chalkley Bob, I agree most heartily, I also think that a public forum such a a court case will be most beneficial although I am cynical enoygh to think that it is unlikely that the Police, as a whole, will really learn from this. I would like to think that, in the face of a prosecution, they would try to mitigate the result by conducting a wide ranging review of H&S and their more contreversial policies hence showing the court that they had learned from their oversight. Wouldn't it be nice if the result was a well thought out H&S management system which protected the employyes and those affected by their acts and omissions as per Section 3. Sadly my cynicism suggests another, more likely outcome. Still we can hope! Richard.

Posted By Robert K Lewis Steve Not sure if you are biting your tongue or serious. Yes one perhaps would have wished for a different charge being brought if you subscribe to the view that manslaughter occurred. If the view is that it was short of such a charge, one is left with the view that the manner in which the business of policing London was undertaken had an effect, albeit unintended, on an individual who was not an employee. If a contractor kills a member of the public by virtue of the manner in which the work was undertaken he is potentially guilty of a section 3 offence. The courts will decide reasonable practicability of measures of control taken. What is the difference? Bob

Posted By IT A waste of resources? You can not have it both ways; an organisation that has a duty to protect the public has a responsibility to ensure their employees are provided with safe systems of work for both their employees and MEMBERS of the Public. It is about time that the HSE became involved in organisational failures for safety (and not just for public profile cases either) and started to focus on how the ORGANISATION has failed to provide safe systems of work for its employees and other by its conduct of undertaking. It suits certain elements to forget that they HAVE NO right by the conduct of the undertaking to expose innocent parties to risk by their actions. (HEAVY SARCASIM) We should charge the Police Officers and then disarm all of them. (HEAVY SARCASIM). Then NO POLICE OFFICER would carry a weapon again anyway so we would not have to worry about how the organisation changes nor the conduct of their undertaking. and if you want to charge anyone with manslaughter (and can prove to satisfy Crime Act) Ian Blair is the Responsible Officer. The Government MUST Not and should not interfere with the HSE investigation, whether or not it gets to the courts and we as professionals should watch and wait then express our concerns when we have the facts , this very organisation should be the voice of those concerns as a collective representation of Safety professionals

Posted By Is Kismet Robert In my short time on this board I have read a number of your contributions, and most are generally informative and sensible. Your start to this thread says: "Ian Blair stated categorically that it was never intended by lawmakers that police operational decisions could be subject to such sanctions, but for me that is precisely why section 3 was drafted." Did you intend to say Section 3 was put in place to deal with police matters? I just cannot believe you mean this and it makes me think you have some other motivation behind the statement. The response before this one, by Bob Shilabeer, provides a more rational look at the event and puts the whole thing in much better perspective.

Posted By Robert K Lewis The lawmakers intended section 3 to protect non-employees from the deficient acts and ommissions of employers, or their agents, not the police per se. It is true that they might not have thought of such policies as operation Kratos but then in framing general duties one does not need to precisely specify what is to be covered. Those with long memories will know of the very specific legislation that used to infest our law books. Robens moved us away from that situation precisely because it was open to employers at that time to avoid penalty by demonstrating the non application of the regulations to their precise work. We do not have an operable Corporate Manslaughter charge so this obviously could not be used. Gross Negligence Manslaughter also has significant hurdles of proof. The CPS felt neither was appropriate. However as in all cases where death or injury arises out of work activities other charges are available. Yes one might feel that it is a lesser charge but that does not mean that there isn't a real offence to be prosecuted. The HSE are not involved in this as the IPCC have done the investigation and adduced the evidence for the charges, which is perfectly right and proper. Are we actually to say in the end that if they cannot be charged with some form of "killing" then we should just allow any other lesser offences to be ignored. If found guilty it is going to be a wake up call to the police about how they set about managing the risks they incurr. If they are found not guilty then they can at least have the satisfaction of the courts recognising publicly that all that could have been done was done. Avoiding the charges gives the impression that there is no accountability. Bob

Posted By Descarte why was this not handled by the IPPC? Or was it and then a public enquiry launched? Has the family brought about a private prosecution against the MET or im I just loosing it on this dreary friday afternoon

Posted By Is Kismet Robert 'It is true that they might not have thought of such policies as operation Kratos but then in framing general duties one does not need to precisely specify what is to be covered.' So you've retracted your previous comment. 'What baffles me is that people such as the police feel they should not face charges when evidence warrants the charge.' Which explains your previous comment, that very much took out of context the reason for Section 3. I personally don't think people like the police (who else were you referring to?) do feel that way - they made a horrific mistake with erroneous information in the heat of the moment. Gee, hindsight is a wonderful thing. I'm not sure of the relevance of the history lesson? Is

Posted By R Joe The issue here is not whether or not the police should be held properly accountable for all aspects of their activities – clearly, they should (in a balanced, objective and impartial way). The specific issue here is one of the appropriateness of using HSW S3 in these particular circumstances, and what this will actually achieve. In the absence of individual prosecutions for (as they see it) something more directly related to the event, the family will never feel justice has been done. And in the event of a HSW S3 conviction the tabloids are likely to deride whatever punishment follows, and/or also devalue the use of HSW in such circumstances in any case. Trying to compare the situation to a contractor killing a member of the public does not sit easily for at least three good reasons: 1. contractors do not use firearms in the same way that the police do, or have a legal duty to protect citizens 2. the decisions and actions on the day were in the context of Britain's worst terrorist atrocity 24 hours previously 3. a failure to prevent a terrorist detonating a bomb on the underground would have resulted in a large number of additional innocent deaths Regards RJ

Posted By Merv Newman As I have said on a previous thread, I can understand (but not necessairly accept) the mind state of the officer involved. Intelligence told him that he was dealing with a probable suicide bomber. One who could set off a lethal detonation at any moment. He killed the person he was set to follow and apprehend. Probably, in his own mind, to protect his own life and those of others. Do your own risk assessment. A gun in your hand, a bomb and a trigger in his pocket. What would you do ? The root causes appear to be faulty intelligence combined with authorisation to "shoot to kill". From whence came the faulty intelligence and from whence came the "shoot to kill" policy ? Again, I can understand the "shoot to kill to protect you life and those of others" policy. I can even accept that. But who is responsible for the faulty intelligence ? Use of H&S legislation in this case is a stupid idea. Simple application of the manslaughter law, or even current corporate manslaughter would have been more applicable. CPS have copped out. I move that ian Blair be nominated as president of the wheel tappers and shunters club. Anything more important seems to be beyond his level of competence. Merv

Posted By Jay Joshi I guess tha CPS on behalf of the government on one hand has to be seen to be "punishing" for this command i.e. management blunder and yet due to a gap in our legal system, it cannot or will not bring manslaughter charges against the Met or individuals. Therefore CPS appears to have resorted to using HASAWA Section 3 as a politically expedient way out. The HSE have no role in this as the HSE has issued a statement to this effect! This must be a first that the enforcement authority is not at all involved in charges under HASAWA! "The decision to prosecute for alleged health and safety offences was reached by the CPS and the case remains a matter entirely for its lawyers. The HSE does not expect to be involved in the conduct of those proceedings" http://www.hse.gov.uk/press/2006/e06078.htm This is a probably the worst of all solutions of bringing a sense of justice for the victim's family. I have no sympathy for terrorists and empathise with the authorities that are protecting the public, but in this particular case, had some misleading statements and spin not been made at the time of the incident and an apology from the Met made as soon as the facts became available, the victims family may have accepted the apology. Unfortunately, the top leadership has become exceedingly politicised instead of making professional decisions. It is extremely difficult to recoincile some of the so called facts that on one hand, public protetion was the first priority and yet an individual suspected as a terrorist was permitted to enter a more public risk location, i.e. an underground tube station when there had been several opportunities to apprehend him. This just does seem to not add-up. This leads to the logical presumtion that there was a blunder and failure at the command level. It is may be easy to accept the reasoning given i.e.the events of the past few days/weeks, but we are not the victim's relatives of this blunder. We may have a different view if one our immediate family was killed in similar circumstances due to a blunder of such proportions. It is a sad day that HASAWA Section 3 is used as a politically expedient way out!

Posted By Is Kismet Agree completely, and once again I would mention the originating contribution to this thread. "If the government now intervenes to prevent a court hearing this would be a day when powerful organisations would start to lobby the specialness of their own case in the face of any H&S prosecution." This simply isn't the case, the circumstances of this event are far removed from an industrial/commercial environment intended by the legislators, and to bring a prosecution under Section 3 is a travesty of justice, and a blow against both common sense and the H&S profession.

Posted By Is Kismet 'It is perhaps politically motivated if the charges are dropped rather than if they were pressed forwards?' We'll see.

Posted By Rob T We could always bring back the Offices, Shops and Railway Premises Act if this fails, just to see if we could get the police on that! Or maybe PUWER as a gun is of course a piece of work equipment. And if all this fails I suggest we do the police under the DSE regs as I'll bet the officer typing up the incident had a dodgy chair. THIS ARGUMENT ALMOST IN IT"S ENTIRETY HAD BEEN DEBATED AD INFINITUM EARLIER. Why has it re-appeared? Because someone has a political axe to grind - not a safety one.

Posted By J Knight I agree with some of the comments made by Bob Lewis, Rob T and Merv, which perhaps goes to show just how ramified and difficult this issue is. However, Rob T, just to disagree quite strongly with one comment you make; political axes exist on both sides of this debate; supporting the Police come what may is just as political as questioning them, John

Posted By Robert K Lewis Rob T The reason I posted this thread was the philosophical one of "Should we exempt particular groups from charges when the investigating body has prima facie evidence of an offence" The rehearsal of the arguments around the application of section 3 has been eye opening, but I am struggling to understand why we feel that it does not apply to the operational work of the police. If we exclude the actual consequences for the moment we are still not in a position to determine whether or not the incident is merely one example of a management system that is actually failing. This is where section 3 is intended to hit it's mark, as I have said - The acts and ommissions of employers which affect non-employees. I have no particular axe to grind except a concern that some people/organisation who have been adjudged by the prosecuting authority as liable to face a criminal charge feel it is not right that they should be charged, lobbying national government ro get charges dropped. Yes it is lamentable that there were not other more serious charges available aimed at the organisational level. The simple answer is that the new proposals may well have been used if they had been on the statute book, but we cannot prosecute via future intended legislation. Bob

Posted By Raymond Rapp It occurred to me that the difference between a health and safety offence involving a fatality and the shooting of an individual, is that the former is an accident, albeit, there may be some form of negligence, and the latter was quite deliberate! Now someone tell me how the two different events can be prosecuted using the same law? Ray

Posted By Raymond Rapp Merv, I can see your anologous example, otherwise known as a 'knee jerk' reaction or if you wish to be more academic - cognitive narrowing. Does that equally apply to those making decisions, collating intelligence (smacks of 'sexed up')and those pulling the trigger? Regards

Posted By ken mosley Perhaps I am naive or just a little slow. At the time of this announcement to prosecute under sect.3 there was a backdrop of public outcry to establish individual culpability. Have the CPS not been quite clever? If the Police authority are found guilty as a body corporate under sect.3, then could it be likely that a charge against an individual may be brought under sect.37.

Posted By Geoff Lloyd As the retired professional head of health and safety for the MPS the first thing to remember is that untill April 1998 police officers did not come under the 74 Act as they were and are not employees. Section 3 of HASAWA was never designed for fast time opperations and is wrong to be used in this way. Spare a thought for the guys out there trying to keep you and I safe, they have enough to worry about when they draw a gun with out worrying if they are going to be given an Improvment notice ( or worse) by the HSE And before you ask I spent 5 days in the witness box at the Old Bailey at the last trial which is no joke I can tell you