x RISKXtra Fatal Accidents and Criminal Liability: Examining the Legal Landscape Fatal accidents in the workplace are usually preventable, which leads to questions of responsibility and criminal liability. Here, Guy Bastable and Tom McNeill seek to explain those occasions when organisations and individuals will be found criminally liable, for which offences and with what sanction 12
Opinion: Fatal Accidents in the Workplace This is well demonstrated by the misconceived attempted prosecution of the Maidstone and Tunbridge Wells NHS Trust, the largest organisation to date prosecuted for corporate manslaughter under the Act. A mother died following a Caesarean section while under the care of two qualified and experienced anaesthetists. The Crown alleged manslaughter against both anaesthetists. Its case against the Trust, at its highest, was that there were failings in its system of appointment and appraisal of the anaesthetists. In dismissing the case, the Judge found that any such failings by the Trust – even if proven – were “nowhere near the sufficient gravity required to categorise their failure as criminal”. The Act specifically doesn’t apply to individuals and expressly states that an individual cannot be guilty of aiding, abetting, counselling or procuring corporate manslaughter. However, although the Act abolishes the common law offence of gross negligence manslaughter so far as it applies to organisations, an individual can still be prosecuted and imprisoned on conviction for gross negligence manslaughter, as well as a number of Health and Safety offences. Breaches of the Act Irrespective of the applicability of corporate manslaughter, fatal accidents ordinarily involve the potential breach of the Health and Safety at Work etc Act 1974. Indeed, the Health and Safety at Work etc Act 1974 places a number of general duties on employers and others, the breach of which constitutes a criminal offence. So far as organisations are concerned, the most significant duties are those contained in Sections 2 and 3 of the Health and Safety at Work etc Act 1974. Broadly speaking, Section 2 sets out the duty on employer organisations to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. Similarly, Section 3 sets out the duty to ensure – again, so far as is reasonably practicable – that non-employees are not exposed to risks to their health or safety arising from its undertaking. It’s important to note here that the employer’s duties are personal and nondelegable, meaning that employers can delegate the performance of the duty to others, whether employees or contractors, but not the responsibility for its non-performance. Failing to discharge either of these duties is a criminal offence of ‘strict liability’ (ie requiring no mental element such as intention, knowledge or negligence). In addition, following the decision of the House of Lords in R versus Chargot (2008) 2 All ER 1077, a person’s death is strong evidence that there was exposure to risk such that the burden of proof effectively shifts to the defence. The defendant organisation has to prove that it took all reasonably practicable steps to ensure the Health and Safety of the deceased. The extent of these duties is important to emphasise. Even if an organisation has devised a safe system of work, any failure to operate that system, whether by an employee (including the deceased) or a contractor, may place the employer in breach of its duty. Reasonably practicable steps will include not only instructing employees on safety procedures, but also ensuring that they’re followed, such as by reasonable supervision and monitoring. In addition, Section 37 of the Health and Safety at Work etc Act 1974 creates secondary liability for senior officers arising out of the organisation’s conduct. If either of the above Health and Safety offences is committed by an organisation with the consent or connivance of (or is attributable to any neglect on the part of) a senior officer of the organisation, that person can also be prosecuted for the offence. Finally, Section 7 places a duty on employees to take reasonable care for the Health and Safety of others who may be affected by their acts or omissions. Again, by virtue of Section 33, any failure to do so is a criminal offence. Effective from 1 February 2016, the Sentencing Council’s definitive guidelines on Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences have brought about a sea change in penalties for corporate manslaughter and Health and Safety offences with significantly increased fines. The guidelines set out a sentencing decision sequence beginning with an assessment of culpability and harm and proceed to consider the financial means of the defendant and other relevant factors. Significantly, and unlike previous guidance, it introduces turnoverlinked sentencing bands for fines. For example, the bands for large organisations for corporate manslaughter range from £4.8 million to £20 million. The bands for large organisations that commit the most serious Health and Safety offences range from £2.6 million to £10 million. Guy Bastable: Head of the Corporate Crime and Regulation Team at BCL Solicitors LLP Tom McNeill: Senior Associate at BCL Solicitors LLP “Corporate manslaughter, gross negligence manslaughter and Health and Safety offences are all criminal offences prosecuted in the criminal courts and which attract significant penalties” 13 www.riskxtra.com>
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