is the first edition of Corporate Crime Update.
It will be produced four times a year by the Centre
for Corporate Accountability (CCA). The Update
will contain information on work-related deaths, coroners
inquests, and health and safety and manslaughter prosecutions.
It will also contains news on important legal and
policy developments on corporate crime issues.
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Statistics Show Sharp Increase in Death
Government Halts Reform of
New Policy for Bereaved
Company Loses Operators
Coroner Refuses to Hold
HSE Agrees to Reconsider
Decision not to Prosecute
rethinks Section 37 charges
Statistics Show Sharp Increase in Death
Health and Safety Executive (HSE) data. obtained
by the Centre for Corporate Accountability (CCA),
indicates a 23% increase in the number of deaths reported
to the HSE in the eleven month period between between1
April 2001 and 28 February 2002 compared to the whole
of the previous year.
HSE are however disputing
total of 485 deaths were reported to the HSE in the
eleven month period to February 2002, compared to
a total of 394 deaths in the previous 12 months.
sharpest increases have taken place in the manufacturing
and services Sector, with a decrease in the number
of deaths in the construction industry.
numbers of workers who have died in manufacturing
has increased by 30% from 49 deaths last year to 64
in the eleven month period to February 2002. There
has also been a 19% increase in the deaths of workers
in the service sector rising from 63 deaths to 75.
largest increases have however been in the members
of the public who have died in Service industries.
Here there has been an increase of 85% from 103 deaths
last year to 191 in the eleven month period to February
has however been a decrease in the number of deaths
in the Construction industry from 104 to 79 deaths.
It is unlikely that this figure will rise beyond 90
when the March 2002 data is added. However the total
number of construction workers who have died this
year will almost certainly be higher than the number
of deaths in the years 97/98, 98/99 and 99/00.
date does not include deaths reported to Local Authorities,
or deaths due to domestic gas applicances.
Apr 01 Feb 02
Apr 01 Feb 02
HSE disputes these figures arguing that they are very
provisional and do not reflect HSEs validated
figures which they argue, in fact, show a decrease
in the number of work-related fatalities reported
to the HSE compared to the previous year
the data - upon which the Updates figures
were based - was extracted by the HSE from its own
official databases in March 2002, only a month ago.
The CCA has been told that details of deaths are not
placed upon the HSE databases until they have been
checked to be work-related and officially reportable
to the HSE.
there will always be some entries which are found,
after investigation, not to be work-related, HSEs
Statistical Office has told the CCA that after the
data goes onto the databases not that many entries
are subsequently removed, and there are often more
cases that need to be added.
is therefore unclear why HSEs validated
figures are so different from the data on HSEs
can see the raw data that has been provided by the
HSE to the Centre
to download the data from Field Operations Division,
(440 deaths) click
here (excel file)
to download the data from the Hazardous Installations
Division (15 deaths) and the Railways Inspectorate
(30 deaths), click here
The Home Offices Justice and Victims
Unit has told the CCA that the new Victims Charter,
announced by David Blunkett in March 2002, will not
apply to those killed or injured as a result of health
and safety offences.
February 2001, the Government published a consultation
document, "Review of the Victims Charter"
which proposed that victims of crime should be provided
better services and improved support. It also proposed
that victims should have" the chance to say how
they have been affected by the crime, and for this
to be taken into account by those taking decisions
within the criminal justice system."
the consultation document proposed that the new charter
should apply beyond those who are victims of conventional
crimes (like burglary, assault, and homicide etc),
to road traffic incidents which lead to death
or serious injury, the document did not suggest
that it apply to harm resulting from health and safety
offences. This absence was at the time surprising
because the Lord Chancellor had told the Magistrates
Association in 1998 that "a person who is injured
as a result of a breach of health and safety legislation
is no less a victim that a person who is assaulted"
submissions from the TUC and individual trade unions
arguing that it was entirely appropriate that the
charter should apply to victims of health and safety
offences, the Home Office has decided to reject their
To see the current Victims Charter of the Home Office,
To see the current Victims Charter of
the Crown Prosecution Service, click
To download Home Office Consultation document
on a new Victims Charter, click
here (PDF Document)
see TUC response to the Government's Proposals, click
To see how other organisations responded to
the Government's Proposals, click
Back to top
Halts Reform of Corporate Sentencing
The Home Offices Sentencing and Offences
Unit has told the CCA that it has reversed its previous
decision of establishing a task-force that would consider
"innovative ways of sentencing companies
and that any reform to the sentencing of companies
was, now, a "low priority".
April 2001 the CCA had been told that the Health and
Safety Commission would no longer be responsible for
advising "Ministers on the feasibility of proposals
for more innovative penalties" - as promised
in Action Point 9 of the Governments April 2000
Revitalising Health and Safety Strategy Statement.
The CCA was told that the Home Office was taking over
this responsibility and was in the process of setting
up a corporate sentencing taskforce which
would consider reforms, including proposals to link
fines "to the turnover or profit of a company".
decision by the Home Office to scrap the task-force
means that no part of Government including
the Health and Safety Commission - is implementing
the Governments commitment to consider innovative
corporate penalties. sentencing of companies.
New Investigation Policy
National Liaison Committee which overseas
the operation of the Protocol of Liaison on Work-Related
Deaths will shortly be publishing a new draft Protocol
which it will be putting out for consultation.
Protocol which was established in April 1998
- sets out the relationship between the police, the
Health and Safety Executive and the Crown Prosecution
Service in the investigation and prosecution of manslaughter
and heath and safety offences after a work-related
death. The Protocol requires a CID officer of "supervisory
rank" to attend the scene of a work-related death
and make an initial assessment of whether
or not to launch a manslaughter inquiry.
January this year, the National Liaison Committee
initiated a review of the current protocol and sought
views from interested organisations on how it could
be improved. In February, NLC representatives attended
a meeting at which trade unions, safety organisation
and bereaved families were present. the CCA and RoadPeace
organised a joint meeting to discuss how the protocol
could be improved. Subsequent to this meeting, the
CCA has been told that the NLC is not drafting a new
For further information on the investigation of work-related
deaths and the Protocol of Liaison, click
To download the Centres comments in response
to the NLC review click
here (Word Document)
Policy for Bereaved
The HSE has revised its policy on how inspectors
should engage with families bereaved from work-related
deaths. New instructions to HSE inspectors, operative
from 22 April, state that every family bereaved from
a work-related death will receive a visit from a Principal
Inspector soon after the death.
inspectors should inform the family about their role
and responsibilities, and the nature of their investigation.
They will give the family a copy of a revised document
Information and Advice for Bereaved Families".
The new policy and information document is being published
after a consultation process involving a number of
organisations including the CCA.
CCA is of the view that the new policy is a positive
step forward. However the CCA remains concerned that
the HSE continues to have too restrictive a policy
on the amount of information it considers its inspectors
can provide to families about their investigation
into the circumstances of the death.
see HSE consultation documents (Dec 2001) and CCA
Company Loses Operators
road haulage company, HJ Lea Oakes, cleared in August
2001 of the manslaughter of 12 year old Gerard Byrne,
has lost its license to use lorries after a public
hearing presided over by the Traffic Commissioner.
In February 2002, Beverley Bell, the Traffic Commissioner
for the North West ruled, after a public hearing,
that the company was not of good repute,
as required under the Goods Vehicles (Licensing of
Operators) Act 1995 and was therefore unfit to hold
a license. The company has three months to appeal
Byrne was killed in June 1999 when a lorry, owned
by HJ lea Oakes, reversed unassisted out of an animal
mill in Congleton, Cheshire, owned by Oakes Miller
Ltd, a sister company of HJ Lea Oakes Ltd. The Mill
was immediately adjacent to an exit of Congleton station
from which Gerard had just emerged.
the police only conducted a road traffic investigation
but, due to pressure from Tom and Bernadette Byrne,
Gerards parents, the police agreed to conduct
a corporate manslaughter investigation. This resulted
in a decision to prosecute the two companies, and
Michael Jepson, a director of both companies, for
manslaughter All three defendants were acquitted at
the trial in August 2001, although the two companies
pleaded guilty to health and safety offences and were
fined a total of £50,000.
to the criminal trial, the Byrnes brought the conduct
of HJ Lea Oakes to the attention of the Traffic Commissioner
the person responsible for the provision and
revocation of those seeking to operate goods vehicles.
The hearing in Manchester heard that a recent inspection
by the Vehicle Inspectorate had found that three trucks
were unsafe for use and criticised its system for
Coroner Refuses to
Paul Forest, the Coroner for the District of Avon,
has refused to hold an inquest into the deaths of
24 year old Paul Stewart, 40 year old Andrew Rogers,
42 year old Jeffrey Williams and 39 year old Ronald
Hill who were killed on 8th September 1999 when they
fell 25 metres from a gantry suspended beneath the
November 2001, Costain Limited and Yarm Road Ltd (formerly
Kvaerner Cleveland Bridge Ltd) were fined a total
of £500,000 at Bristol Crown Court after they
pleaded guilty to health and safety offences. A few
weeks later, the coroner wrote to the families saying
that he had decided there was not "sufficient
cause" to resume the resume the inquest. He stated
that the facts of the deaths have been "adequately
aired in the public" . Under the Coroners Act
1988 the Coroner has discretion whether or not to
resume an inquest after a prosecution has taken place.
response, the solicitor representing George Stewart,
the father of Paul, wrote to the coroner asking him
to reconsider his decision stating that the "Crown
Court proceedings did not hear any evidence since
the company pleaded guilty. Therefore there was no
evidence given by witnesses." The letter also
stated that "the inquest is the opportunity for
the families to hear live evidence concerning the
circumstances of the deaths." The coroner has
however recently responded that he would not change
HSE agrees to Reconsider
Decision not to Prosecute
a meeting in February 2002 with Karen Pullen, the
mother of 12 year old Christopher, who was killed
in September 2000 when he was crushed by a steel security
door that fell on him at the Market Estate in Holloway,
London, the Health and Safety Executive (HSE) has
agreed to reconsider its decision not to prosecute
Islington Council and the housing association Hyde
decision comes after a campaign by the "Justice
for Christopher Campaign" who had been critical
of the adequacy of the investigation by the police
and the HSE into Christophers death, the failure
of the authorities to inform Karen about what they
were doing, and the failure of the HSE to prosecute
anyone in relation to the death. Gary OShea,
a member of the campaign, and representatives of the
CCA were also present at the meeting.
HSE Rethinks Section
HSE have agreed to reconsider its decision not to
prosecute any of the directors of Express Corrugated
Cases Ltd over the death of Frank OToole who
died in November 1999 when wooden pallets fell from
a lorry onto him as we riding a lorry. The Company
was fined £10,000 in April 2001 when it pleaded
guilty to health and safety offences.
February 2001, after a meeting with Franks family,
the HSE have agreed to reconsider its earlier decision
not to prosecute any of the directors of the company
(at the same time as it prosecuted the company) for
section 37 of the Health and Safety at Work Act 1974.
A Prosecution under section 37 requires that the HSE
must prove that the offence by the company was the
result of "consent" or "connivance"
on a directors part or the result of his neglect.
HSC's New Enforcement
In January 2002, the Health and Safety Commission
published a new Enforcement Policy Statement (EPS).
The purpose of the EPS is to set out how inspectors
from the Health and Safety Executive and from Local
Authorities the enforcing bodies
will enforce health and safety law.
download new Enforcement Policy Statement, click
To see documents relating to the consultation process
prior to publication of new Statement, click
The new Statement includes a number of notable reforms:
Clearer Investigation Policy
Stricter Prosecution Policy
Role of Resources
Inspectors and the Court
Application: Local Authority (LA) inspectors are
required to follow the EPS. In the past
LA inspectors were simply expected to
EPS states that one of the purposes of inspectors
from the HSE and LAs is to hold organisations and
their senior officers "to account" for breaching
health and safety law. Para. 2 states that one of
the purposes of enforcement is to:
that duty holders who breach health and safety requirements,
and directors or managers who fail in their responsibilities,
may be held to account, which may include bringing
alleged offenders before the court in England and
is the first formal acknowledgment by the HSC that
health and safety inspectors are concerned with corporate
criminal accountability, and that the prime purpose
of prosecutions is to hold to account those who have
committed criminal offences. Although, in some ways,
this is simply a mere matter of words, it is an important
symoblic step about the way the HSC perceives the
role of safety inspectors.
Cautions: The policy introduces a new power to
inspectors the use of formal cautions.
The footnote to paragraph 6 states that:
formal caution is a statement by an inspector, that
is accepted in writing by the duty holder, that
the duty holder has committed an offence for which
there is a realistic prospect of conviction. A formal
caution may only be used where a prosecution could
be properly brought.
effect a caution is an alternative to a prosecution,
where the organisation or individual admits to the
Investigation Policy: it sets out for the first
time the factors which inspectors should use when
deciding (a) which reports of injury or ill health
they should investigate and (b) the level of resources
to be used in each investigation. HSE and Local Authority
inspectors do not have the resources to investigate
more than a small proportion of incidents reported
to them (e.g. at present, the HSE only investigates
around 15% of major injuries). In this situation,
it is crucial that inspectors use clear and rational
criteria to decide which of those reported incidents
need to be given priority. The EPS goes some way to
providing this. Para 33 states that the factors set
out in the EPS are:
severity and scale of potential or actual harm;
seriousness of any potential breach of the law;
of the duty holders past health and safety
practicality of achieving results;
the wider relevance of the event, including serious
Prosecution Policy: It sets out more clearly those
factors that the HSE and LAs should consider when
deciding when to prosecute. Para. 35 states that in
deciding whether or not to prosecute, enforcing authorities
should consider two issues: (a) the sufficiency of
evidence and (b) whether it is in the public interest
to prosecute. The EPS states that a prosecution will
not go ahead unless the prosecutor finds there
is sufficient evidence to provide a realistic prospect
of conviction. If there is sufficient evidence
to prosecute, the prosecutor must then decide whether
it would be in the public interest to
do so. These tests are in line with the Code of Crown
Prosecutors used by the Crown Prosecution Service
the main prosecution body in England and Wales.
Para. 39 then sets out when, assuming there is sufficient
evidence, it would be expected in the
public interest for prosecution to normally
take place. These are where:
was a result of a breach of the legislation;
gravity of an alleged offence, taken together
with the seriousness of any actual or potential
harm, or the general record and approach of the
offender warrants it;
has been reckless disregard of health and safety
have been repeated breaches which give rise to
significant risk, or persistent and significant
has been carried out without or in serious non-compliance
with an appropriate licence or safety case;
duty holders standard of managing health
and safety is found to be far below what is required
by health and safety law and to be giving rise
to significant risk;
has been a failure to comply with an improvement
or prohibition notice; or there has been a repetition
of a breach that was subject to a formal cautions;
information has been supplied wilfully, or there
has been an intent to deceive, in relation to
a matter which gives risk to significant risk;
have been intentionally obstructed in the lawful
course of their duties.
EPS also states at para 40 that, it would also be
in the public interest to prosecute if one or more
of the following circumstances apply:
it is appropriate in the circumstances as
a way to draw general attention to the need for
compliance with the law and the maintenance of
standards required by law, and convictions may
deter others from similar failures to comply with
breach which gives rise to significant risk has
continued despite relevant warnings from employees
or their representatives, or from others affected
by a work activity.
prosecutions will not "normally" take place
in the above two circumstances; the enforcing authorities
only have to "consider prosecution".
At Para 41, there is a new section that requires the
enforcing authorities to give greater consideration
to the question of offences committed by individual
directors and managers. It states:
enforcing authorities should identify and prosecute
or recommend prosecution of individuals if they
consider that a prosecution is warranted. In particular,
they should consider the management chain and the
role played by individual directors and managers,
and should take action against them where the inspection
or investigation reveals that the offence was committed
with their consent or connivance or to have been
attributable to neglect on their part and where
it would be appropriate to do so in accordance with
this policy. Where appropriate, enforcing authorities
should seek disqualification of directors under
the Company Directors Disqualification Act 1986.
role of Resources: The EPS makes clear that although
resources have a bearing on which reported incidents
will be investigated, once an investigation has taken
place, the lack of HSE resources should not have any
bearing on whether a prosecution should take place.
The question of prosecution should rest solely on
the two tests set out above: is the evidence sufficient,
and is it in the public interest to prosecute? Indeed
a commentary by the HSC on the new EPS states that,
HSC accepts that a prosecution may sometimes
be at the expense of other important work.
Inspectors and the Courts:
The EPS contains a new section on what an inspector
(or the prosecuting lawyer) can do to persuade a magistrates
court that a case should be heard in the Crown Court
(where a Judge can impose unlimited fines). Although
this decision is for the Magistrate to make, the prosecutor
is in a position to argue that a case should be heard
in the Crown Court. Para. 46 states that:
cases of sufficient seriousness, and when given
the opportunity, the enforcing authorities in England
and Wales should consider indicating to the magistrates
that the offence is so serious that they may send
it to be heard or sentenced in the higher court
where higher penalties can be imposed.
goes on to state that:
considering what representations to make, enforcing
authorities should have regard to Court of Appeal
guidance: the Court of Appeal has said In
our judgement magistrates should always think carefully
before accepting jurisdiction in health and safety
at work cases, where it is arguable that the fine
may exceed the limit of their jurisdiction or where
death or serious injury has resulted from the offence.
The new Enforcement Policy Statement is definitely
a step forward from the previous statement that existed
since 1995. The positive changes are set out above,
but there are some problems and omissions:
does not state that a prosecution should take
place where a major injury or serious
ill health is a result of a breach of legislation.
Instead the policy has a rather cumbersome and
confused sentence that states that prosecution
will take place where the gravity of an
alleged offence, taken together with the seriousness
of the any actual or potential harm, or the general
record and approach of the offender warrants it.
does not set out the criteria that inspectors
should use when deciding whether or not to issue
a formal caution rather than prosecution;
does not state the factors that inspectors should
consider when deciding whether to argue before
the magistrates that a case should be heard in
the Crown court;
does not provide any criteria about when inspectors
should impose improvement or prohibition notices
rather than providing oral or written advice.
The concern here is that inspectors might provide
oral or written advice when a notice is more appropriate.
three points immediately above, may be dealt within
in a new document due to be published shortly called
the Enforcement Management Model. We will
have to wait and see.
Each edition of the newsletter will contain information
on the successful prosecutions taken by the HSE or
the Procurator Fiscal (in Scotland) as set out in
In this edition, we have looked at two months of prosecutions
and at the different levels of fines for convictions
involving deaths, injuries and inspections (i.e. not
involving a reportable death or injury).
determine whether or not a conviction has resulted
from a death or injury we have used the summary details
of each prosecution contained in the database
however sometimes it is not absolutely clear whether
a prosecution resulted from a reported injury or not,
and in a few cases we have had to make a judgement.
Most prosecutions involving individuals concern the
prosecution of Partners or Sole Traders (as employers).
November 2001 Total Cases 78
64 cases concerned defendants that were either companies
involved deaths, total fines £91,000. Average
involved injuries, total fines £314,250.
resulted from inspections etc, total fines £481,000.
Case details unknown, £4000
cases involved defendants that were individuals
involved deaths, total fines, £55,000. Average
involved injuries, total fines £9,000. Average
involved inspections etc Total fines £9,400,
2001 Total Cases 64
40 cases concerned defendants that were either companies
involved deaths, total fines £448,500. Average
involved injuries, total fines £170,750.
Average £ 5,691
resulted from inspections etc, total fines £9,400.
case details unknown, £175,000
cases involved defendants that were individuals
involved deaths, total fines, £5,000. Average
involved injuries, total fines £14,200.
involved inspections etc total fines £28,060,
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