Posted By Robert K Lewis Only an additional offence with the same penalties as HASAWA. I mentioned on an ealier thread that Brenda Barret Prof. emeritus at Law - Middlesex said recently that she only saw the name as anything new. A Barrister at the same seminar also posed the question that maybe two companies could end up charged on the basis of joint vicarious liability. He argued that the CM actually uses vicarious liability to make the organisation responsible for the actions of its employees, albeit senior employees. The courts have traditionally thought only one employer could be vicariously liable but have begun to change their thinking on this, I cannot remember the stated case though. My view is that the real industrial killer, occupational disease, will not be affected by the changes as the death is too remote from the actions to be able to identify what after all may have happened 20-40 years previously. I firmly believe that we now need to be looking at making the remediation order power under HASAWA more effective by bringing it into the "administrative powers" of the inspector similar to notices. Consider the possiblity of a Director/Manager being mandated to specific training and evidence of application, or a non executive director mandateed to the board for a period. One might even consider director disqualification being made a default rather than an active decision to disqualify. If we are to fine, and I would tend only to use this for gross breaches or recividism, then they must approach the level of those for financial or similar misfeasance. Bob

Posted By Dave Wilson If you work in a small company then NOTHING has Changed if you work in a big company then it is easier to prosecute and fine. Do not see the point actually as unlimited fine is available under HASAW

Posted By Raymond Rapp Garry Agree with most of the sentiments, however, there are some interesting facts regarding the CMA that have not been raised in this discussion thus far. It is anticipated that the fine pursuant to the CMA will be significantly higher than those imposed under HSWA, reflecting the gravity of the offence. Fines have been proposed at 2.5 - 10 percent of Turnover. The principle behind the CMA is to stigmatise the guilty company with the prosecution and annunciation of a serious crime (further illustrated with the option of a Publicity Order). With the previous common law manslaughter, it was impossible to convict a large organisation due to the 'controlling mind' test. Now, an aggregated senior management test has replaced the identification doctrine and therefore in theory it should make it easier to prosecute large organisation with a complex management structure.

Posted By Robert K Lewis DW Probably both I think would be the best answer. Mitigation is the term you are looking for - We never bargain justice!!:-) Bob

Posted By Garry Adams Ramond Thank you for your input and expanding the discussion. The raising of the penalties in relation to turnover may instigate a change of Policy within many Companies, no doubt this increase of punitive measures will have the desired effect on Step Change Safety Culture at board level. However, there are Organization which relies massive turnover figures, they can afford massive fines, the share holders are quite content to turn a blind eye to the punitive measures passed down by the courts, as long as they are receiving a nice dividend. The Stigmatisation, naming and shaming of these faceless Organisations may go some way, however, this may have a detrimental effect on the Company as a whole ...if the public were to punish the convicted company further by with drawing their patron-ship and stop using the product or service ...using the worst case scenario the Company may cease to trade resulting in redundancies. The Management move on to establish a new Company and the work force take the bus to the Job Centre. Regards, Garry...

Posted By CFT Garry I am a supporter of the CM&CH Act; there are many reasons why I am . Not having the burden of identifying the 'directing mind' (singular)is one such instance. And yes, HSWA is highly likely to be included within a given trial, once guilt of the organisation has been established, and gross negligence manslaughter against one or more is therefore likely; after all an organisation cannot be given a custodial sentence! If unlimited fines have existed in the past (which indeed they have) then why have they not been representative of the event? Did the punishment fit the crime? The families & loved ones of all the deceased would be far more qualified to answer that question. CFT

Posted By Raymond Rapp Bob Ah, fairness, morality and the law...a very moveable feast. Ray

Posted By Robert K Lewis Raymond Yes - but the message at this moment is not in favour of life is it. Fines are a supposed brilliant stick to enforce behaviour but the figures suggest they do not work in reality. Bob

Posted By Lance Hi A September 2007 PLC news brief regarding CM&CH Act 2008 states, "the government has said it expects to bring around ten prosecutions each year." I recently attended a seminar at which they set up a court scenario and an eminent QC cross examined a "chief executive" regarding a fatality of an employee. To cut a long story short, approx 120 people there voted as the Jury, the result was 96% of us delivered a guilty verdict! Lance

Posted By Lance Bob That is an interesting comment, please can you expand? That is extremely dismissive view, I think you may be burying your head in the sand.

Posted By Lance Bob Thanks, interesting point. What I was trying to highlight was that the Jury was people at the top of the tree who could well have been in that witness box and still the verdict was 96% guilty. Make of that what you will when the top managers/directors/executives are replaced with a random Jury selection. I agree that the Act is not fundamentally different, the main issue is that it is politically motivated to make it easier to prosecute large organisations. It is also interesting when you consider the tie in with CDM regulations and client responsibilities. L

Posted By Lance Indeed. My thinking is along the line that the offence of corporate manslaughter involves a management failure which amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. So, therefore I think it could be argued that a gross breach of duty could arise if a duty holder fails to exercise any of their obligations under CDM 2007. Any thoughts?

Posted By Robert K Lewis Raymond CM is however based in vicarious liability as the organisation becomes guilty of an offence as a consequence of the actions of its senior management. That is the argument put forward by an eminent QC. I am not going to argue too deeply. It is true that it has been primarily applied in civil cases but apparently there is no reason why it cannot be applied in criminal cases. Yes it will be a new area but who knows where the courts will go once we begin to get cases go through the systems. Bob

Posted By CFT That exists already Bob surely, or at any rate the insurers deal with the multiplicity of a claim? CFT

Posted By Lance Just had another look at the CDM regs and if my reading understanding is correct: Regulation 45 excludes rights of action in civil proceedings for a breach of CDM 2007 except for certain exceptions which refer to the provision of welfare facilities, the prevention of access by unauthorised persons to a site, the preparation of the CPP prior to start of the works and duties relating to H&S on construction sites. So gross breaches of CDM requirements by duty holder could result in prosecution under CM & CH Act in my opinion. I agree, glad I am not a lawyer!

Posted By Raymond Rapp Bob I think the principle you are describing is that of 'aggregated' liability of senior management, which was not permitted under the previous common law CM, but is now required to be proved under the CMA. Some observers have described this concept of CMA as a 'restricted' version of vicarious liability -therefore a conceptual version of the doctrine. Regards

Posted By CFT Bob As has been in the past. yer right it's Friday and I'm off ome. CFT