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Justice must be done

29th April 2010, Page 26
29th April 2010
Page 26
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Page 26, 29th April 2010 — Justice must be done
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Which of the following most accurately describes the problem?

Fines of millions of pounds and naming and shaming orders are part of a new range of penalties for workplace deaths.

Words: Charmaine Hibbert

Fines that may run into millions and an order to name and shame offenders are just two of the penalties included in new sentencing guidelines for offences of corporate manslaughter.

The Corporate Manslaughter and Corporate Homicide Act 2007 became law on 6 April 2008. Transport firms and other employers can now be prosecuted for corporate manslaughter (in England. Wales and Northern Ireland) or corporate homicide (in Scotland). A prosecution may be triggered if someone has been killed at, or as a result of, a company's work.

The Act makes it easier to convict companies for gross breach of duty of care, resulting in a person's death. 'The Act is designed to prosecute system failures,says transport lawyer [an Whalley. "It targets corporate bodies, rather than individuals. This isn't about sending people to jail, it's about financial penalties."

Guidance published by the Sentencing Guidelines Council (SGC) in February this year is described as a "definitive guideline" for penalties for Corporate Manslaughter & Health and Safety Offences Causing Death, The SGC document makes it clear how seriously it regards corporate manslaughter. "The offence of corporate manslaughter, because it requires gross breach at a senior level, will ordinarily involve a level of seriousness significantly greater than a health and safety offence. The appropriate tine will seldom be less than £500,000, and may be measured in millions of pounds."

Name and shame culture By contrast, while the SCiC says that the "range of seriousness involved in health and safety offences is greater than for corporate manslaughteCthe fines for these offences range from -seldom" less than £100,000 and "may be measured in hundreds of thousands of pounds or more". For corporate manslaughter only, the guidelines introduce a "name and shame" procedure where the court can order publication of the conviction: details of the offence; the level of tine and the terms of any remedial order. The latter specifics actions to prevent the offence happening again and could include installing new safety measures.

Corporate manslaughter law came into being because. in some major accidents, it was difficult to provide grieving relatives with the justice they sought. "For more than 20 years, there were many disasters and accidents where it was difficult to find a controlling mind to hold responsible," says criminal lawyer Sean Joyce, of Stephenson's Solicitors. "Prosecutors found it hard to prove that a company could be held responsible for the actions of one individual, and so it was difficult to secure a conviction."

Safe working James "[Myer. project manager at the Freight Transport Association, cites the Kings Cross fire. the Clapham rail crash and the Herald of Free Enterprise disasters as examples: "The Act was introduced to ensure company owners and senior managers put in place thorough systems of safe working for their industry." Directors and senior managers can still be prosecuted under the Health and Safety at Work Act ( HSWA) 1974. "Individuals can be prosecuted for existing health and safety offences and gross negligence manslaughter," says Tim Culpin. transport lawyer at Aaron & Partners.

"Such prosecutions will be taken where there is sufficient evidence and it is in the public interest to do so," he adds. If convicted, the heaviest form of punishment carries life imprisonment.

Duty of care

The Health and Safety Executive (HSE) will only prosecute individuals in the most serious of cases. "Section 8 of the Act requires juries to consider whether there has been a gross breach of a relevant duty of care: the extent and seriousness of failures to comply with health and safety legislation. and how much a risk of death that posed; and evidence that shows that systems or accepted practices were likely to have encouraged any such failure," says Culpin.

Tim Ridyard, transport lawyer at Barker (jotelee, says: "There are two principles under HSWA that companies must comply with: Sections 2 and 3. One is to ensure the safety of your own workers; and two, the safety of others."

Safety issues Chris North. affinities manager for Road Haulage Association Insurance, believes the sentencing guidelines will sharpen companies' locus on safety issues. "A significant majority of players in road transport already exercise considerable care in managing both premises and work-related road safety risk," he says.

The law does not expect operators to eliminate all risk, but requires them to assess risks to protect people as far as is "reasonably practicable".

Joyce says the law should create some leeway. "It helps if a business can show it has effective systems in place. The HSE or police would then have to prove that there was a gross breach of a duty of care." •


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