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Biggart Baillie seminar to Safety Group Fife 8 September 2008

progress. Biggart Baillie seminar to Safety Group Fife 8 September 2008. Corporate Homicide – Elena Fry. Corporate Manslaughter and Corporate Homicide Act 2007. in force 6th April 2008 UK wide new offence Corporate Homicide. …So what?. Scottish Fatal Injuries Statistics 2006 / 2007.

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Biggart Baillie seminar to Safety Group Fife 8 September 2008

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  1. progress Biggart Baillie seminar to Safety Group Fife 8 September 2008 Corporate Homicide – Elena Fry

  2. Corporate Manslaughter and Corporate Homicide Act 2007 • in force 6th April 2008 • UK wide • new offence Corporate Homicide …So what?

  3. Scottish Fatal Injuries Statistics 2006 / 2007 • 31 fatally injured workers • 5 fatally injured members of the public • 314 road traffic fatalities Prosecution only a matter of time Business involved in fatality now faces possible investigation for Corporate Homicide.

  4. Organisation– corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2)) Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c)) The Offence “Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised – (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”

  5. The Herald of Free Enterprise

  6. “All concerned in management...were at fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.” L.J. Sheen

  7. Organisation– corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2)) Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c)) Relevant duty of care – as employer; occupier; supplier of goods or services; construction and maintenance; any other activity on a commercial basis; use of vehicle or plant; persons held in custody. (S(2)) The Offence “Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised – (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”

  8. Organisation– corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2)) Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c)) The Offence “Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised – (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased” Relevant duty of care – as employer; occupier; supplier of goods or services; construction and maintenance; any other activity on a commercial basis; use of VEHICLE or plant; persons held in custody. (S(2))

  9. Occupational Road Risk (ORR) Vehicle - company & private; roadworthy; additional safety features; VCR; high performance. Driver - valid licence; comply with rules of road; DUI; mobile phones; special considerations, eg age; competence; convictions; accident history; health. Journey - weather conditions; enough time; breaks planned. Assess and manage ORR just like any other risk to safety and health.

  10. Organisation– corporations, partnerships, trade unions or employers’ associations, the police force, local authorities, the Crown. (S1(2)) Managed or organised – by senior management, i.e. the people who play significant roles in decision making, and/or day to day running of business. (S1(3), (4)(c)) Relevant duty of care – as employer; occupier; supplier of goods or services; construction and maintenance; any other activity on a commercial basis; use of vehicle or plant; persons held in custody. (S(2)) Gross breach – conduct below what can reasonably be expected. (S(8)) The Offence “Section 1(1): an organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised – (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”

  11. Jury must consider evidence showing non- compliance with existing health and safety legislation and 1) how serious failing was, and 2) how much of risk of death it posed. • Jury can consider attitude, policies, systems and accepted practices likely to have encouraged failure or tolerance of it. • Jury can have regard to guidance related to breach and any other matters considered relevant. N.B. Charges for breach of HSAWA and CH can run concurrently.

  12. Penalties/Sentencing • Unlimited fine - 5 to 10% of turnover??? • Transco £15m = less than 1% of turnover • Possible equity fines? • No imprisonment • Remedial orders • Publicity order

  13. Biggart Baillie found guilty Law firm first to be charged under corporate killing legislation.

  14. Biggart Baillie guilty of Corporate Homicide

  15. BIGGART BAILLIE GUILTY BIGGART BAILLIE GUILTY BIGGART BAILLIE GUILTY

  16. What do you do?

  17. IODGuidance

  18. IODGuidance • Plan • set out policy. • Deliver • RAs; MS; train; adequately resource; competent H&S officer/consultant; “visibility”; suppliers/partners committed to health & safety. • Monitor • reporting; audit of staff and contractors; sickness – underlying cause? • Review • annual formal board room review; keep up to date / ahead of best practice.

  19. Scottish Peculiarities?

  20. Scottish Peculiarities? • Crime devolved to Scottish Parliament • Expert Group Report 2005 • Potential for separate Scottish legislation • – e.g. consultation on equity fines • (closes 1/12/08) • Act abolishes common law corporate manslaughter • – does not abolish common law corporate culpable • homicide

  21. Summary • Corporate Homicide is here • Designed to cover all businesses and business activities • Protect by making H&S top priority

  22. BIGGART BAILLIE GUILTY

  23. Questions? progress Elena Fry, Partner T: 0141 228 8140 E: efry@biggartbaillie.co.uk

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