Questions for panel members Kevin Bridges — senior associate, Pinsent Masons, Madeline Abas — partner, Osborn Abas Hunt, Steffan Groch — partner and head of regulatory, DWF LLP, and Nathan Peacey — partner, Bond Pearce LLP came thick and fast during this fascinating, hour-long legal session on day two of the conference.
How will the recent judgement in R v Chargot affect defence against sections 2 or 3 HSWA 1974 in terms of the concept of foreseeability?
Nathan Peacey:
It does make the prosecution case easier. The House of Lords essentially have made section 2 cases prima facie, i.e that the employer hasn’t looked after the health and safety of their employees. The HSE doesn’t have to particularise in what way the defendant fell short. In practical terms, the prosecution will bring more cases under s2 than specific regulations.
Kevin Bridges:
But the prosecution has to establish there was a material risk — the burden is on the defence to show they have done everything reasonably practicable. This might not be the case for section 3, i.e. the fact that there has been an accident.
NP:
There was bit left hanging in the judgement, in that materiality introduces the concept of forseeability.
Steffan Groch:
Also in the R v HTM case, the judgement introduced the potential argument of foreseeability, and R v Porter, the concept of material risk. There is more debate to be had in section 3 cases as a result of all of these cases. It remains to be seen that where the facts in a case are questionable as to whether there was an obvious risk. . .it’s a work in progress.
Madeline Abas:
The prosecution of health and safety cases takes place in the criminal courts — the system is used to answer the accusations of wrongdoing being put. We do have to push for particulars. Chargot was definitely a victory for the prosecution but it’s not the end of the story for the defence. Because of the materiality aspect the prosecution still has a job to do when the prosecution is on a risk basis, rather than because there has been an accident.
How Chargot relates to prosecutions [of managers] under section 37 — the judgement said that for those who directly control operations on site, the burden will effectively shift to the individual, so the prosecution won’t have much to do.
Why is the HSE ‘muttering darkly’ about the issue of legal privilege?
KB
Legal privilege relates to accident investigations and investigation reports. When an accident happens, the HSE will ask for a whole raft of documentation. In a civil case, the claimant will also ask for these documents. They will probably contain lots of admissions (inadvertent) of what you have done wrong! Legal privilege arises in relation to the reason for doing an accident investigation. Well, most people will say it is to find out the root causes of the accident and to learn lessons so that it doesn’t happen again.
This is an important reason, but not the only one. Another reason might be to take disciplinary action against an individual who has done something wrong, or to get the facts for your lawyer. The question is, what is the dominant purpose of the investigation? If it is to brief your lawyer, and the secondary reason is learn the lessons, then the document is legally privileged and doesn’t have to be disclosed the HSE.
Obviously, the HSE wants to see it because you have identified all your failures for them! You, on the other hand, want to remain in control of that information. In some circumstances, it might be in your best interest to disclose it to the HSE because it shows the good things you have done but ultimately, you want to remain in control, and your lawyer wants to make sure you are in the best position to defend a potential prosecution.
NP:
In some cases, there is a concern that some clever systems are in place that fetter the HSE’s powers under section 20 HSWA that preclude certain important documents from being revealed. The HSE was given its s20 powers to be able to do its job and if those powers are inappropriately fettered, they cannot do that job.
SG:
Other issues arise if you outsource accident investigation to third parties, as you then lose the control that Kevin emphasised.
MA:
The important thing is to be as open as possible with your lawyers, so they can give you the best advice.
The issue of vicarious liability is changing the face of contracting out to third parties. There seems to be more blurring of responsibilities occurring now.
SG:
I recently spoke to a HSE inspector who was investigating an accident on a construction site [where I was the defence lawyer for the principal contractor] — he said the principal contractor was is responsible for what the sub-contractor did wrong. In the criminal context, vicarious liability does not apply! It is frustrating to have to deal with such fundamentally wrong comments from the HSE, but there is a real grey area here.
MA:
The problem is the way s3 is used in prosecutions. When it was drawn up originallyin 1974 it was principally aimed at protecting the public but it is used today in a different way. For those contracting out, they are still employers. You can go to considerable lengths to verify and monitor contractors but s3 is used against principal contractors when there is an opportunity for them to control what is going on. Where the principal contractor has not properly reviewed and assessed and is not checking that the contractor is doing what they said they would do, it is extremely easy to prosecute the principal contractor using s3. This is a real challenge today.
NP:
It is almost as if the principal contractor is expected to do the job of the sub-contractor! This is the Achille’s Heel of all health and safety management — managing your sub-contractors. I see it more and more with Prohibition Notices — inspectors serve them on the principal contractor as well as on the sub-contractor to stop the PC from just getting another sub-contractor to carry on the work. It really is the biggest headache in terms of health and safety management.
How is the corporate manslaughter situation shaping up after a year in force?
MA:
Since its introduction I have a seen a thirst for information and education from clients. Who is going to be seen as part of “senior management” for the purposes of the Act — the definition is hopeless. This will be a playground for lawyers like us when it all starts coming to court!
It seems that the Police won’t jump into a prosecution until they are sure they have a very strong case. They want to get secure convictions under their belt. The problem is that the Police will be hesitant before they start charging people. The current economic climate is posing interesting challenges. I asked two businessmen on the train up here today how business and industry is viewing it and they said, if your biggest clients push you to cut corners, what can you do? To what extent will all of this be factored in [to CM prosecutions]?
NP:
In the cases I’ve seen the Police seem to be struggling as to how they should investigate — they seem to be arresting everyone, and interviewing people at all levels under PACE! The thing is, why arrest individuals when what needs to be proved is the case against the company?!
KB:
Before, you would expect the HSE to take over the investigation. Now, the Police investigate for a lot longer — and they are not very good at investigating workplace accidents. When you ask them why they are arresting individuals, they look at you blankly because arresting and interviewing individuals is what they are used to doing!
One of my CM cases is close to being charged — it has been with the CPS for some time but it is “still being looked at”. Basically, the Police want a cast-iron guarantee that they will get a conviction. The Police approach is very different to the HSE’s approach.
SG:
Why was this Act brought in? Because it was difficult under the old one to fine large companies. So now they want a strong case against large companies, and think they will be criticised for taking action against smaller companies because they could have done that under the old law.
My concern is the inconsistency between different police forces, and different areas of the UK. And my message to employers is that if you want to do something to avoid being prosecuted for corporate manslaughter, then look at the culture of your business now — see section 8 of the Act. You have a few years to do this so get your systems in place.
Would positive health and safety duties on directors in law help, in terms of the difficulties post-Chargot of prosecuting under s37 HSWA?
MA:
The question of positive directors’ duties is firmly back on the table, now that the Government is looking at it again. When Rita Donaghy publishes her report on fatalities in the construction industry I would put money on her recommending these be brought in. This is one of those issues that, in the run-up to an election, always come to the fore.
Many people would like to see such duties, and think if we have them, it will be easier to prosecute. But the bigger concern in enforcing this law is that any such duties would remain non-delegable. These duties rest on employers for a very good reason. The HSE is particularly concerned that is we introduce these duties, it will dilute already-existing employers’ duties. I am not a supporter of them, either.
KB:
Section 37 is a secondary duty — there is only a conviction if an offence has been committed by the company. What is important from a practical point of view is whether or not we have positive legal duty — what does neglect mean under s37? What should a director have known? If you take Chargot, the case of R v P, and the HSE/IoD guidance together, then you have pretty close to a positive duty so, in my view, the debate is academic.
NP:
I would echo that. Good corporate governance is about whole-board responsibility.
MA:
Those campaigning for this duty — their main frustration is the lack of prosecutions under s37 and the lack of jail terms but, since the Health and Safety Offences Act came in earlier this year, this will change so there is even less of a reason to introduce positive directors’ duties.
SG:
There is already enough in the locker for the prosecution at the moment — they’re just not using it as much as they could or should.
Why are there so few prosecutions in respect of work-related road accidents?
KB:
Historically, an enforcement gap has existed here. In my view, health and safety law applies where work is going on. The law applies — this is a given. Traditionally, the HSE hasn’t enforced this area, the Police have. The Police generally take action against the driver — that is how the law is geared.
I think corporate manslaughter is going to be the main reason this will change. Occupational road fatalities are going to be happy hunting ground for the Police to bring CM prosecutions. The Police are very good at investigating road crashes — they only need the HSE to support them in terms of looking at the management chain.
There will be an increase in the amount of enforcement related to occupational road accidents. I don’t see the HSE taking run-of-the-mill s2 or s3 cases but, in consultation with the Police, they may well bring prosecutions on the back of any failed corporate manslaughter prosecutions, as all the investigation has been done, and the information collected.
MA:
In the last 18 months, I have noticed the HSE taking more interest in how large companies monitor how workers travel to and in work.
SG:
I would actually suggest that, for the next 4 or 5 years, the Police have enough on their plate, getting their head round actual workplace situations, without focusing on road traffic accidents, so I don’t think we will see any corporate manslaughter actions for RTAs for a while. If they are going to tackle the roads, they need to apply regulations first, similar to working at height. Then we’ll see some prosecutions.
Will the proposal to link fines to percentage of turnover get past the Sentencing Advisory Panel?
MA:
We are three months away from the SAP reviewing those proposals. It seems unlikely they will go ahead with them, in the current economic climate. Killing off companies that had an isolated failings under the HSWA (as opposed to gross failures) is not going to go down well. Looking at turnover rather than the health of the company, i.e. its ability to pay, cannot go forward in this climate.
KB:
Turnover reflects the level of activity in a business and therefore the level of risk. Before, fines were based on pre-tax profits. My gut instinct is that we are likely to get the guidelines issued in relation to corporate manslaughter but, in the current economic climate. . .under the HSWA, you can get something a little bit wrong and kill someone, or you can get it a lot wrong and not injure anyone, so I think the idea of a tariff for HSWA cases will be dropped.
NP:For example, Network Rail was fined £3.5 million over Hatfield. If they had been fined on the proposed basis of 2.5 — 10 per cent of turnover, that would have amounted to around £650 million. That’s a staggering amount!
SG:
It wouldn’t be the first time guidelines were issued for sentencing, which weren’t followed by the judges and magistrates! It all really depends on what the Court of Appeal does. Talking about percentage of turnover is, frankly, nonsense!
