NO LINK TO TURNOVER IN SENTENCING
GSC Report published
On 27 October 2009, the SGC published its long-awaited response to the Sentencing Advisory Panel paper on sentences in cases under the Corporate Manslaughter and Corporate Homicide Act 2008, and for fatal cases under the Health and Safety at Work etc Act 1974.
Although not binding, the Guidelines, when they become definitive and binding on English Courts in due course, are likely to be persuasive in Scottish Courts. Of greatest note is the SGC’s departure from the Sentencing Advisory Panel recommendation that fines be measured as a percentage of turnover. Rejecting this approach, the SGC say: “A fixed correlation between the fine and either turnover or profit is not appropriate.”
To read the report in full, follow the link:
http://www.sentencing-guidelines(...)pdf
BUNCEFIELD EXPLOSION PLEA
On 13 November Total UK tendered pleas to two charges under sections 2 and 3 of the HSWA and a further charge under the Water Resources Act in respect of the massive explosion and fire at the Buncefield Oil Storage Facility in 2005. Four other companies entered not guilty pleas to various charges alleging their respective failures in the incident in which resulted in some 300 tonnes of petrol to overflow causing a vapour cloud and resulting explosion.
FIRST DEATH BY CARELESS DRIVING TRIAL
At Kilmarnock Sheriff Court, on 5 November 2009 the first person in Scotland to face trial for causing death by careless driving was acquitted by the jury.
Isle of Arran Journalist Nicholas Underdown was driving on the main Broddick to Corrie road on the island in August 2008 when he lost control if his van, as a result of which it crossed onto the opposing carriageway and collided with two cyclists, killing one and seriously injuring the other. The defence argued that unexpected driving conditions caused the accident.
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HEALTH & SAFETY PROSECUTIONS POST CHARGOT
R v EGS Ltd (2009) EWCA 1942
The now well-known decision of the House of Lords in the case of R v Chargot (2008) UKHL 73 was received with justifiable concern by Health and Safety practitioners. In that case, Lord Hope of Craighead, who delivered the leading speech, held:
[T]he duty that these provisions [ss.2 & 3 of the HSWA] lay down looks to the result, not the means of achieving it. Prima facie a breach of section 2(1) arises where an employee is injured while he is at work in the workplace. That fact in itself demonstrates that the employer failed to ensure his health and safety at work.” [para. 30]
Beyond that general statement, Lord Hope introduced the concept of “material risk” and the application of a foreseeability test, characterising the risk as one “which any reasonable person would appreciate and take steps to guard against.”
In EGS a nine-year old boy was killed when he operated an electrically controlled gate at his grandparents home. The gates was controlled by an intercom on the outside but he operated them by reaching through a gap between the gates and a pillar and pressed a button intended for people leaving the premises. The gates then swung open crushing the boy. The trial judge upheld a submission of no case to answer, apparently applying the material risk and foreseeability tests in Chargot. He held:
"In order to engage section 3, the prosecution must prove against each defendant to the criminal standard that:
(a). There was a material risk to JK and/or to the other non-employees' health and safety which any reasonable company in the defendant's position would appreciate and take steps to guard against ("appreciable and foreseeable risk") and
(b). JK and/or any other non-employee was exposed to that risk by the manner in which the defendant conducted the construction and installation of the gates ("the connection or causation").
Further, the trial judge held:
"The prosecution cannot, in my view, satisfactorily establish a connection between EGS conduct and the accident or that the risk was foreseeable in their case or that it should have been foreseeable. It was too remote."
Overturning the trial judge’s decision, the Court of Appeal held that the trial judge had misdirected himself on the tests applicable under section 3 of the HSWA. Confirming and, to some extent clarifying what was said in Chargot, the court held:
Thus, in the present case, the burden is on the prosecution to prove to the criminal standard that EGS failed to conduct its undertaking in such a way as to ensure that persons not in its employment who might be affected thereby were not exposed to risks to their health or safety. As Lord Hope made clear at [27] of his speech in Chargot, the risks must be "material" risks to health or safety. The judge may have misunderstood what Lord Hope meant by a "material" risk. In our judgment, Lord Hope was referring back to the earlier part of [27], where he said that the legislation is only concerned with risks that are not trivial or fanciful. A risk that is trivial or fanciful is not material
It is not entirely clear to us why Lord Hope added the words "where there is a material risk to health and safety" with the words "which any reasonable person would appreciate and take steps to guard against". We think the explanation is that he considered that, in practice, any reasonable person would appreciate and take steps to guard against a risk which is more than trivial or fanciful. In other words, it is helpful to ask whether a reasonable person would appreciate and guard against the risk in deciding whether the risk is more than trivial or fanciful.
But we do not think that it is incumbent on the prosecution to prove that the risk was one which any reasonable person would appreciate and take steps to guard against. The language of section 3(1) is clear and, save for the qualification introduced by the words "so far as reasonably practicable", unqualified. The word "risk" has been interpreted in Chargot as meaning a risk which is not trivial or fanciful, but that is not a qualification to the statutory provision. It is a question of fact and degree whether a risk is trivial or fanciful. It is pre-eminently a jury question.
In short, the Court of Appeal in EGS have sought to remove any comfort which accused persons charged with offences under sections 2 and 3 of the HSWA may have taken from Lord Hope’s introduction of the concepts of “material risk” and foreseeability. According to EGS, material risk is merely one which is not trivial and foreseeability is only to be applied to assist in determining that the risk is not trivial.
To read Chargot in full, follow the link:
http://www.publications.parliament(...)chargo.pdf
To read EGS in full, follow the link:
http://www.bailii.org/ew/cases/EWCA/Crim/2009/1942.html
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