Posted By D H
Hi folks - can you please advise if I have got this right?

My understanding is that if a fatality in the work place occurs, then the Corporate Homicide investigation would be generated.
The "Corporate" would be investigated and a jury would then decide if the "Corporate" was guilty of gross misconduct. During the court case, any member of the organisation could be called into the witness box for examination.

So far so good.

But - if a corporate was then found guilty - to my understanding, HSE are prepared to invoke Sect 37 of the Act (among other Sects of the act) to prosecute a member of management if they are deemed to have been responsible for the incident.

Can the HSE then step in and further charge a "corporate" and then decide who in the corporate was guilty of the offence and can imprisonment then result?

My query is all about the HSE not raising the charge in the first place, then stepping in to actually trying to imprison a "responsible person" after another charge has been brought?

Posted By Lilian McCartney
This is a very interesting post. I was doing a paper for management here and was thinking about which way round it would be - HSW first then Corp Hom or both at same time??

IOSH Edinburgh branch have this Act as there topic on 10 April so I'll ask then.

I expect the naswer will be........ every case is different.

Sorry I couldn't help

Lilian

Posted By CFT
DH

Your first part asks; "if a fatality in the work place occurs, then the CH investigation would be generated?"

I don't see this as a 'catch all' Act, nor clearly do the Government, further I see it as a way to potentially prosecute a corporate body when in the past under common law, Gross Negligence Manslaughter (see sec 20 of the Act) has been the route approached, and before any ‘organisation’ could be charged with CM, it became necessary to establish proof of such event, it’ll make the process far simpler. So whilst an investigation will be generated for a fatality, it is not always going to be under the CHA, (far from it). The HSE won’t then step in as you put it, they will have almost certainly been involved from the very commencement (or likely to have been so); The Police etc will be working alongside other investigating authorities, this much we know.

Contained in the CHA is, "an organisation is guilty of an offence only if the way in which its activities are managed or organised by its senior management is a substantial element in the breech referred to." (Another case law potential problem on the wording)

That particular clause has been specifically included to ensure that only 'truly' corporate failures are caught by the legislation; liability's to GNM will also remain.

The Act has been introduced to target high level corporate failings and as such should be reserved for cases that fall into this category, (quite rightly so).

Section 8 of the Act goes part way to clarifying your thoughts on the 'witness box' content.

Whilst the Act is designed to be a tool to prosecute the corporate entity, this does not mean that individuals are exempt from further prosecution and I feel your thoughts on sec 37 (whilst relevant) won't be the only means forward for investigating authorities, as you intimate;

It has got to gain the approval of the DPP first anyway, or in your neck ‘o’ the woods the Procurator Fiscal, this has the added benefit of preventing a civil claim from citing the Act on a regular basis (as it would bound to be so)

I’d recommend anyone interested to read the ‘explanatory notes to CM & CH Act 2007 which is crown copyrighted but freely available and draw attention to item 56 which refers to sec 18: ‘No Individual Liability’ at first read you may conclude that no singular prosecution can take place, this is of course not so; it won’t however be under the Act being discussed here; two bites of the ‘cherry’ are a technical possibility though, (see sec 19).

Allowing guidance material to be included and available to a Jury is a major moot point and I see defence having a field day with all the terminology one may well anticipate; there is no legal obligation to be ‘aware of or indeed to comply with it’, it’ll be interesting to see how that one transpires!

CFT.

Posted By CFT
DH

Sorry' I did not mean you to assume that the HSE may be the 'advisory' body in all cases; my point was, they 'may' be working alongside other investigating authorities, and if one assumes the prosecution has heavy H&S over tones then of course one would expect the HSE to be involved.

CFT

Posted By Ian Waldram
I suggest that several different issues are involved here.

The HSE Scotland webpage is a helpful reference for the general issue of how cases in Scotland are taken forward. Also, I suggest that, whether in Scotland, England and Wales, it will be normal for any charges to be laid under both Corporate Homicide/ Manslaughter and HASAWA. The reason for that is to ensure the body corporate still faces a charge if the jury decides the evidence doesn't amount to 'gross negligence'. (You may recall that wasn't done for Herald of Free Enterprise, where there was some marine legislation that was essentially similar to HASAWA, which was one 'scandal' that eventually led to the new law).

If you are explaining the new legislation to Directors, it's worth pointing out that several authoritative sources have suggested there will be no more than a handful of cases each year under the new legislation. Of course there may also be some under existing manslaughter/homicide legislation, if there's evidence of individual gross negligence leading to a fatality - this could be by anyone, not necessarily a Director.

Quite separate from any of this, it has been recommended that HSE do more to remind courts of their existing powers to recommend that Directors are removed from office, which is where H&S legislation and Companies legislation come together. Historically, disqualification for H&S offences is almost unknown, but would seem to be a good way to penalise ineffective directors, in suitable cases. I suggest that is as good a motivator as any when discussiing this with your Board.

Also I'd recommend one cheap and simple solution for Directors to avoid any possibility of such threats to their future livelihood - read a copy of the IOSH book 'Questioning Performance' and then do what it says - the authors know what they are talking about!

Posted By Robert K Lewis
Ian

Interestingly I listened to a presentation by Prof. Brenda Barrett last week and she finds it difficult to comprehend what advantages the new law will actually put into effect. The fines will be no greater than current HASAWA and the other sanctions too are all available under HASAWA. It would seem therefore that only the name of the offence would serve to create a public mark of odium for the actions of the organisation. The act was thus to be seen as a mark of punishment rather than a method of securing change.

The discussion turned around the most effective methods of punishing the recalcitrant boards of directors etc. Some parties felt that the act would wake up directors etc to the consequences of accidents whilst others felt that more creative sanctions would serve better to achieve real change. There are difficulties in all approaches however.

When we present on this legislation we do need to face the problems openly or be caught out by the sharp eyed director who sees the loopholes. Perhaps too we should reflect on the fact that the improvements to the real industrial killer, Occ. Health, may not be achieved directly through directors fear of the consequences of a fatality. The deaths in these cases are often too far remote to affect current decisions.

Bob

Posted By CFT
Bob

As usual, a pleasure to follow on from you.

With the greatest of respect to Prof. Brenda Barrett and yourself, I feel the whole purpose of the CM&CHA with the synopsis you make has been missed; in particular, with comparisons to HSWA.

Previously we have had common and civil law 'tackle' the corporate issue; just how many have ever been particularly successful? Zeebrugge, Piper Apha, Hatfield, Ladbroke Grove etc etc might all have been a different end result from a prosecutable slant if the CMA had existed at that time.

I don't agree that the sanctions & fines exist in HSWA to prosecute in the way in which this Act is designed to, the 2007, British Airways fine of £121.5 million for illegally fixing fuel charges on passengers, compared to the 2005 Transco Larkhall £15 million, the £1.33million fine imposed on Corus etc ; I do feel that HSWA and any other relevant law may be used in addition to the CMA to bring individual prosecutions but the CMA is in my mind a combination of two elements, perhaps even three if we consider the families and survivors, as we must; perhaps the level of fine may well fit the crime!

It is designed to punish the corporate body after a successful investigation and subsequent prosecution, and with unlimited fines (agree that exists in part, usually HSWA 2 or 3) and the publicity order it will 'hopefully' act as a deterrent to other larger and more complex organisations to take a completely fresh look upon its culture of safety throughout.

Securing change may just be achieved in the longer term if indeed a high profile organisation is 'hauled through the coals' for all and sundry to see.

Under existing law, when was the last big corporate punishment that we have had, comparable to the expectant result the CHA may achieve, (see above comparisons)?

I do not sincerely expect to see more than a handful of prosecutions using the CHA as its base (I hope not anyway); the fines and further prosecution of individuals (but not under the CHA), the publicity and any custodial sentencing really ought to make those organisations falling short sit up and take notice.

Just my view, nothing else.

All the best

CFT

Posted By Robert K Lewis
DH

It is not H&S legislation but the CPS can add the HASAWA charges to the sheet if they so wish.

CFT

Yes they are not equivalent legislation but BBs point was that in the fact of punishments what does the CMCH act actually achieve that is unique and new thus does it pay its way?

We can certainly put the fines up to 10-20% of profit but this is possible under HASAWA so what does it achieve? Public bodies will only use public money to pay so who suffers?

All valid questions methinks

Bob