IOSH – Edinburgh Branch - PowerPoint Presentation

IOSH – Edinburgh BranchLegal Update Presented by Charlotte O’Kane, Associate

Agenda Sentencing Guidelines Update Case Update Fee for Intervention HSE v Chevron – Prohibition Notice Appeals Other Recent Developments

Sentencing Guidelines Update

English Sentencing GuidelinesMandatory in England and Wales from 1 February 2016 Applies to all health and safety offences Organisations; and Individuals Applies to Corporate Manslaughter Based on 3 key factors: Turnover, not profit Culpability Level of harm risked

English Sentencing Guidelines Fines have risen significantly Total number of fines imposed over £1m = 23 (to June 2017). Average fine £695,940.78* Very large companies fall outside the ranges in the Guidelines * For all Large and Medium sized companies prosecuted between 1 February 2016 and 31 December 2016

Sentencing Guidelines - ScotlandGuidelines not directly applicable in Scotland. SPG Ltd v HMA - Court of Appeal considered the application of the Guidelines in Scotland: “ there is no need to use [the Guidelines] in a mechanistic or formulaic fashion…” “guidelines from the Sentencing Council will often provide a useful cross check, especially where the offences are regulated by a UK statute…”

Sentencing Guidelines - Scotland Court in Scotland should make its own assessment of appropriate sentence and, only then, use guidelines as cross-check if thought appropriate Court of Appeal explicitly directed Scottish Courts to consider existing Scottish “precedent”, i.e. case law. Contrasting approach with England Courts – comparison with other cases discouraged

England – Sentencing ConsultationsNew Guidelines in England and Wales on the Reduction in Sentence for early guilty plea Consultation on Gross negligence Manslaughter Sentencing Guidelines – England and Wales Closed on10 October 2017 It is expected that sentences for some gross negligence manslaughter offences will increase e.g. where a death was caused by an employer’s long-standing and serious disregard for the safety of employees which was motivated by cost-cutting. Maximum sentence proposed – 18 years for most serious offences. Case study based Siday Construction case

Scottish Sentencing CouncilPrinciples and Purposes of Sentencing – Consultation Closed on 27 October 2017 New draft guideline sets out an overarching principle of "fairness and proportionality" Preparatory work is also being undertaken in relation to offence specific guidelines relating to causing death by driving, and wildlife and environmental crime

Case Update - organisations

G4S Cash Solutions Facts: Employee contracted legionella No evidence that cause linked to G4S’ premises Hot and cold water systems badly managed Inadequate policies, monitoring and testing, and inadequate training for staff Failure to act on advice of own consultant Turnover: £240m Profit before tax: £43m Fine: £1.8m

Kier Integrated Services Facts Accident in roadworks near Lidgate in May 2014 Planer removing tar from the Southbound carriageway, northbound side has traffic lights. Worker found lying in road – cause of accident unclear Failure to design and plan the roadworks – there was no safety zone or speed restriction Convictions: Kier under s.3(1), subcontractor s. 2(2) Fine: Keir - £1.8 million plus costs of £12,405 Sean Hegarty Limited - £75,000 plus costs of £12,405

R v Tata Steel UK Ltd Facts Guilty plea to two offences under s.2 involving failure to properly guard machinery at plant in Corby Failure to comply with an improvement notice served after offence 1 caused offence 2 Turnover: £4.17 billion Profit before tax: loss of £317 million. Reliant on support from parent co

R v Tata Steel UK LimitedFine: £1.9 million Appeal: Reduced to £1.5 million judge wrongly categorised likelihood of second offence Court entitled to take account of support of parent co in making the TSL a going concern

Tesco Stores Limited Facts 23,500 litres of unleaded petrol escaped from tank at petrol station. Petrol entered the sewage system and nearby waterways Nearby residents suffered from headaches and sickness due to the strong smell Joint investigation by Environment Agency and local Council uncovered issues with: the fuel delivery emergency procedures. Turnover: £39.8bn / Loss before tax: £231m Fine: £5m for health and safety offence (plus £3m for environmental offence)

Tesco Stores Limited Commentary High Culpability, Harm Category 1 offence - starting point of £4m and a range of £2.6m to £10m. size of the organisation entitled Court to move outside the suggested ranges to achieve a proportionate sentence. The number of people exposed to a risk of harm was a significant feature.

WhirlpoolAppealed fine of £700,000 for breach of s.3 HSWA Death of self-employed contractor who fell from a MEWP installing fire detection equipment No effective control or supervision to prevent conflicting activity On appeal, the fine was reduced to £300,000 The breach was low culpability category harm 3. The trial judge had chosen a starting point which was too high in light of strong mitigation Unlikely to indicate a downward trend

PoundstretcherFined £1million for multiple breaches of HSWA related to fire safety in December 2017 Comparison with JD Sports conviction under the Regulatory Reform (Fire Safety) Order 2005. They were fined £60,000 for similar failings in October 2017. Is there a case for bringing Fire Safety Offences within the Sentencing Guidelines?

Other casesHMA v Structural Metal Decks S3, paraplegia, £105,000 HMA v Sandford Park Ltd S3, fatality, £110,000 HMA v Turriff Contractors Limited S3, minor injuries, £80,000

Case Update - individuals

Alexander JohnstoneFacts Fatality during resurfacing works on the M8 in 2014 Alexander Johnstone driving a tipper truck delivering asphalt Arrived on site late and could not get into position because of other vehicles blocking the way Reversed into the live traffic lane, entered the site via the works exit further up the road, then reversed back down the work site without a banksman Ran over a worker painting joints Convicted under s.7 HSWA Sentence 240 hours community service

Fee for Intervention

FFI – is it working? Recap – when FFI can be charged Invoice queries and disputes Income generated by HSE HSE as judge, jury and executioner? Most organisations made a commercial decision to pay

Challenge to Disputes ProcessJudical Review by OCS Group UK challenging HSE disputes resolution system and decision-making process Hearing scheduled for March 2017. In Feb 2017, HSE : outlined plans to consult on the dispute resolution process; settled out of court with OCS; Withdrew the notices served on OCS and paid their expenses.

New disputes processDisputes now considered by a Disputes Panel – a lawyer as the chair and two lay members HSE choses the chair Disclosure process Panel only considers the information available to the inspector Panel meets at a time and place arranged by HSE Panel can arrange a meeting, but this is not a hearing with witnesses Expenses Decisions is non-binding - what next?

HSE v Chevron – prohibition notice appeals

HSE v Chevron North Sea Limited The facts: HSE inspector visited Chevron’s offshore installation April 2013 He identified areas of potential corrosion on stairway treads He carried out load testing using a fire axe – it sheered through the steel He served a prohibition notice Chevron had the stairways removed and tested in November 2013. All panels met the British Standard

HSE v Chevron North Sea Limited Chevron appealed the notice. Central issue – was the Employment Tribunal entitled to take into account evidence which was not known and could not reasonably have been known to the inspector when he served the notice? ET took the subsequent testing into account and cancelled the notice. HSE appealed to Inner House. Unsuccessful Conflicting case law in England HSE appealed to the Supreme Court

HSE v Chevron North Sea Limited Decision issued in February 2018 – English cases overruled The ET can take all relevant information into account Review of all stayed cases needed Questions remain: who should pay? FFI disputes system

Other developments

Other Developments On-going Fire Safety and Building Regulations reviews post Grenfell Ongoing changes in the Health and Safety Division of the Crown Office and Procurator Fiscal Service New Head – Laura Buchan Significant Cases – Clutha and Legionella Possible impact on prosecutions Still no corporate homicide prosecutions in Scotland

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