IOSH Edinburgh Branch Legal Update Presented by Charlotte

IOSH – Edinburgh Branch Legal 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 Guidelines • Mandatory in England 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 £ 1 m = 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 - Scotland • Guidelines 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 Consultations • New Guidelines in England Wales on the Reduction in Sentence for early guilty plea • Consultation on Gross negligence Manslaughter Sentencing Guidelines – England Wales – Closed on 10 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 Council • Principles 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

G 4 S Cash Solutions • Facts: – Employee contracted legionella – No evidence that cause linked to G 4 S’ 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: £ 240 m • Profit before tax: £ 43 m • Fine: £ 1. 8 m

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 Limited • Fine: £ 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. 8 bn / Loss before tax: £ 231 m • Fine: £ 5 m for health and safety offence (plus £ 3 m for environmental offence)

Tesco Stores Limited • Commentary – High Culpability, Harm Category 1 offence - starting point of £ 4 m and a range of £ 2. 6 m to £ 10 m. – 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.

Whirlpool • Appealed 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

Poundstretcher • Fined £ 1 million 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 cases • HMA v Structural Metal Decks – S 3, paraplegia, £ 105, 000 • HMA v Sandford Park Ltd – S 3, fatality, £ 110, 000 • HMA v Turriff Contractors Limited – S 3, minor injuries, £ 80, 000

Case Update - individuals

Alexander Johnstone • Facts – Fatality during resurfacing works on the M 8 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 Process • Judical 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 process • Disputes 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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