Rank: Guest 
|
Posted By richard1
Having looked deeper into corporate mansluaghter could someone convince me the improvements the new legislation brings which section 37 of the HASAWA 74 does not, towards compliance and or conviction
Cheers
|
|
|
|
|
|
Rank: Guest
|
Posted By Stephen D. Clarke
I would guess because its higher profile, involves investigation by the police, does not require directing mind to be identified for conviction, unlimited fine, remedial order and publicity order (particularly latter). Also following conviction of the organisation for CM individuals can be prosecuted under H&S law e.g section 37. Would a CM conviction make a section 37 conviction easier?
|
|
|
|
|
|
Rank: Guest
|
Posted By richard1
Thanks Stephen for your response. If anyone else could add to this discussion, gratefully read
|
|
|
|
|
|
Rank: Guest
|
Posted By Robert K Lewis
Stephen
I would rather say that S37 convictions may make a CM conviction easier. The penalties for both sets of legislation are identical and I can quite foresee various HASAWA sections being on the charge sheet in addition to CM. At least they should be. Remember that CM has a wider definition of the responsible persons than the senior officer of the company set out in s37
In the case of a fatality the Police will always be involved until such time as they pass it to the HSE, if this indeed happens.
|
|
|
|
|
|
Rank: Guest
|
Posted By Raymond Rapp
Richard
I agree in principle with Robert's response. However, back to the original question, the main difference of a CM charge and a s37 is likely to be the size of the fine. It has been proposed by the Sentencing Advisory Panel (SAP) that a fine should be aligned to the European Competition rules, where a fine of between 2.5 and 10 per cent of the company turnover can be imposed.
According to the CPS only about five prosecutions per year will be used pursuant to the CM Act, it should therefore reflect the more serious offences by large organisations with fines possibly reaching a £100 million or more. At least, that is the hypothesis.
Regards
Ray
|
|
|
|
|
|
Rank: Guest
|
Posted By richard1
Thanks for the feedback - I am sure others will have further to say...
|
|
|
|
|
|
Rank: Guest
|
Posted By Martyn Hendrie
Three things strike me as being different
1 The definition of "senior management" is cast far wider than simply the directors.
2 The new standard of proof ".. far below what could reasonably be expected"
3 The ability of the court to dictate how a company must publicly communicate its failings if found guilty.
In my discussion with senior managers it is these issues not the potential fine that is exercising their minds.
|
|
|
|
|
|
Rank: Guest
|
Posted By richard1
Ray
I would astonished if fines reached 100m but in comparision you could have said that about professional footballer's salary 20 years ago!
|
|
|
|
|
|
Rank: Guest
|
Posted By richard1
Thank you all for your time responding to this thread. It has been a good learning curve on the particular topic
Cheers a lot
Richard
|
|
|
|
|
|
Rank: Guest
|
Posted By Phil Grace
Richard,
Others have already responded, clarifying that sec37 is used when HSE wants to proceed against senior i.e. director level employees. In contrast Corp Manslaughter provides no ability to proceed against individuals it's aimed solely at the company. There isn't even an "aiding & abetting" provision
However, as has been pointed out there is a need to establish an error/omission on the part of a senior member of management before the case of Corp Manslaughter can be proved. I agree that if such a senior management failure is proven it is likely that a sec37 charge would be laid in addition to the Corp Manslaughter. And if the employee was a manager rather than a director then I guess it could be a sec7 charge.
Personally I do not see the new Act as being a great advance. I worry that it could drive people to "cover their position" rather than focusing on front line risk management, reducing the risk of an incident that could give rise to an injury - that might be fatal.
Regards
Phil
|
|
|
|
|
|
Rank: Guest
|
Posted By Stephen D. Clarke
I've told its likely that the police will invite senior managers e.g. could several directors/assistant directors down to the station for questioning at which time they would be arrested, fingerprinted, photographed for S37 or gross negligence manslaughter while the police gather evidence for a CM prosecution of the organisation. Investigation goes on for several, these individuals are bailed, massive implications for the organisation even before a case comes to court. Also the Government will want to have successful first few prosecutions for this new high profile act which is supposed to remedy past prosecution failures. They will look pretty stupid if it fails.
regards
Steve
|
|
|
|
|
|
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.