"Major contractors convicted of corporate manslaughter after site deaths could face fines of more than £20m" http://www.constructione...-corporate-manslaughter/

Hi Chris Here's my take. In relation to your first question (and last) - it will be for the prosecutor and defence to assist the Court in highlighting their thoughts on likelihood. This may require specific additional evidence that goes beyond proving guilt. They may agree in advance on likelihood or have opposing views - but that is partly what the Court exists for. As to industry guidance, yes that has a few people concerned as trade bodies etc. have potentially written quite exacting standards that are arguably 'best practice' as opposed to meeting legal requirements. These may now come into sentencing and, again, I would suggest that the prosecution and defence will have to agree whether certain guidance is applicable or state their disagreements and reasoning in order to assist the Court. As the guidelines are now more specific, there is a larger burden now placed upon the prosecutor to be ready with this information in the event of a guilty verdict - the Court can't make an accurate judgement if that information isn't provided.

Thanks all for the comments so far. John reading the report in your link it talks about £20m, but the document has £10m upper part of the range for large - Very high culpability - Harm category 1. However it does state that considerably larger ( than £50m) could get a proportional fine higher. Walker I'm not entirely sure it would always be that clear cut, but take your point. Xavier123 and RayRapp good points. Ray in your point 3 that is where part of my question came from. I was having a discussion with a middle manager about this and he commented that when I used to pull his team up for blocking access to fire extinguishers every now and then, would this be seen as deliberate. I said No I didn't think so, although it was deliberately done, it was not particularly intentional. It would however potentially fall into the High culpability section as it was not just once. I thought this would make for a good discussion on the forum, instead of the usual questions ( nothing wrong with questions, but debates are nice too). Chris

Chris With regards to question 3 there are some complex issues, indeed with the whole concept from the SGC guidelines. I am not convinced that you can easily pigeon hole a particular type of offence without a good understanding of all the peripheral matters. For instance, the very high threshold states a deliberate breach or flagrant disregard of the law. This surely must be conjoined with a serious breach which could easily lead to fatality and not just the misuse of fire extinguishers, otherwise there will be all manner of breaches which potentially fall under this criteria. Indeed, much of the new guidance is based on focusing on the risk as opposed to the outcome of an incident. The real issue has always been that a serious incident can have minor consequences and a minor incident can have serious consequences. The problem is the law has never fully appreciated that good/bad fortune plays a significant part in the outcome as well as other variables. However the risk is normally constant. For example, if you leave a live electric terminal exposed you may not know the outcome if someone comes into contact with it, fatal or otherwise.

However over the last good number of years the Government has been steadily removing resources from the Fire Authorities, HSE etc., and who used to provide good guidance/input and enforcement at the front end and which reduced the accidents getting to court, IMHO. Now they wish to dish out a few bigger fines at the back end, which is rather too late for those who have had the accidents. Left hand and right hand come to mind. Good companies are good companies because they have the right advice and apply it up front, they are not good companies because they fear some rather large fine. The poor companies are poor for a reason; if they have no concern for the health and safety of their staff they are not going to be looking at fines and thinking to themselves 'we'll we had better change our ways because that may be us next'. The prospect of a rather large payout did not stop VW and their car software; most of these companies don't see the risk and they will only see it by front end advice and enforcement and which reduces the risks to the people rather than wait for the accident and then fine them. Regards

John You are correct in that most incidents result in a near miss or a minor injury even where there is a potential for a serious injury. Even in the case of an electric shock, most people survive to tell the tale. There will, however, be the odd unfortunate case where it is a serious injury or fatal. Lawyers always like a definitive answer based on objective factors. The world of health and safety rarely provides this type of smoking gun. Risk by definition is part subjective and the outcome of an incident is determined by a number of variables. There will be much debate to be had I'm sure when quantifying the risk v outcome scenario.

Good point; I do think however that Labour both support and receive support from the various unions and who champion health and safety, and have done so for a good number of decades. Union support has been valuable over the years and let's hope it continues. Regards

Much of what is labelled as H&S deserves to have the mickey taken out of it.

Been out of the office a few days, so this has moved on a bit. Quote jwk at #7- Surely it's deliberate or wilful failure by the board or owners, not by line management further down the chain. Provided your line managers instructions are clear enough, and there are systems in to check what he is doing, then the board may be a bit weak for letting him get away with it, but not deliberately or wilfully failing. But is it? Under the next part of the guidelines it covers the individuals and very high /high include where the offender intentionally breached, or flagrantly disregarded the law or Actual foresight or wilful blindness to risk of offending but risk nevertheless taken. So I'm not sure it is just board, it is local managers, you and me that could be in the firing line. In a previous place of work I remember an employee in a consultative committee meeting accusing me of walking through the factory and ignoring an unsafe practice. I remember walking through on the day in question and I remember looking at tings going on, on one side which took all my interest, so missed something on the other side. But I was seen, to ignore, when in fact I had just not seen. The law is now covering potential risk not just when someone is hurt, and the individual is in the mix. Yes in the fire extinguisher scenario, I have audit reports showing I pick up on these things for my own back covering ( and I guess that of the board, as they employee me), but the managers point is he has been picked up more than once, and it is potentially something that could affect more than one person. Don't get me wrong I was happy we were having the discussion and he was thinking about it and his position ( which is a new thing for them). The question is how far will this risk exposure be taken. Indeed your posts and Rays next post do sum up things, and where minor things can have major consequences and the lawyers having fun. So Is the view that nothing really has changed other than fine level, and identified material breach will carry almost the same weight as if the incident happened, but no particular change in significance. We don't eliminate all risk from work, but work to acceptable levels, which includes potential for acceptable loss of life ( remember all those discussions on train platforms, walking riverside etc !). Chris

Walker, the regulators and the courts have rarely addressed breaches based on purely the risk - it is nearly always the outcome. The seminal case the Natural History museum is a rare case of where they were prosecuted for exposing members of the public to a risk of legionella. However it was a paltry fine and hence indicative of the way the court views a risk as opposed to an outcome, regardless of how serious the potential risk.

Yes it was a slip, but of the mind not the finger ( I knew what I meant, sort of). Yes the law has not changed, but this aspect has been highlighted in this guidance document. Grey Wording, care to share ? Chris

Oh, and you'll know the turnover of your own organisation best but the top level is greater than £50mill. That's like a single large supermarket right? If you're over that then the Court is directed to scale up the fine from what is written - but there is no guidance on how to do so. The Court of Appeal has made it very clear that they support this approach in Environmental cases. I remain in favour of the guidelines upscaling fines....but for savvy organisations this is prime time to just double check things are working the way they think they're working.