Challenging Government decisions
This fourth edition of Corporate Crime Update looks at how decisions made by the HSE, Local Authorities, the police, Coroners and the Crown Prosecution Service can be challenged. It looks at the internal complaints mechanisms available, the process of complaining to the Ombudsman and past and current Judicial Review.

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INDEX

General News
•	HSE Budget cut
News on Judicial Reviews and other legal challenge
•	Widow Challenges HSE for Information
•	Coroner forced to hold inquest
•	Family seeks new inquest
	Family challenges CPS failure to prosecute council for manslaughter
•	Judicial review fails
Updates
•	Manslaughter Update
Analysis
•	How to challenge a decision made by the HSE, Local Authorities, Coroners, the Police or the CPS
•	Focus on Judicial and Ombudsman Complaints

HSE Budget cut
The Government’s announcement in December 2002 that it is giving the HSE an extra £10 million over the next three years will result in HSE spending less money in 2005/6 than in 2003/4 and will mean that the HSE will have to make cuts in its activities.

In the last spending round in 2000, the Government had allowed the HSE to spend £252 million this year (2002/3). If the Government had allowed the HSE to increase its budget by 2.5% for each of the following three years – simply to allow for inflation – the HSE would have been able to spend £274 million in 2005/6. Instead, the Government’s recent announcement will mean that the HSE can only spend £260 million – £12 million less than what a simple inflation increase would have given.

The trade union PROSPECT, which represents HSE inspectors, had launched a campaign last year arguing that the ‘cost of putting in place a framework of safety inspections with enough inspectors to carry them out’ would require £35m extra in real terms each year.

This budget decrease will have a serious effect on inspector numbers. A confidential internal document, obtained by the CCA shows that the HSE’s Field Operations Directorate will ‘not fill any vacancies for the time being’ and that it has ‘no plans at the moment for further recruitment’.

Taking into account inspector turnover, this will mean an actual decrease in the number of inspectors. As a result, the internal document states that the HSE are planning to ‘involve administrative staff more directly in operational work’.

The budget decrease comes at a time when the HSE have decreased its level of inspections by 41% in order to compensate for an increase in the level of investigations into reported injuries.

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Widow Challenges HSE for Information
Moira Martin, the wife of David Martin, who was crushed to death in December 2000, is challenging the failure by the HSE to provide proper reasons for its decision not to prosecute a company director over her husband's death.

This challenge, taken by solicitors from the Public Law Project, takes place at the same time as the Centre for Corporate Accountability is appealing against decisions by the HSE not to provide the CCA with information.

David Martin died when a 1.5 ton piece of steel – which was being lifted by a crane – came loose from lifting hooks which had no 'safety latches'. In May 2002, his employer, Service Welding Ltd, was fined £25,000 following a HSE prosecution.

Newcastle Crown court heard that prior to the death the company had been advised by its insurers to obtain these 'safety latches' but they had failed to do so. It was the absence of the latches – which cost just £5 each – that caused the death.

The HSE however did not prosecute the directors of the company who had overall responsibility for health and safety. The company has since gone into receivership; one of the directors has started up a new company, Patterson Ryan Wireworkers Ltd, based in Newcastle upon tyne.

Moira Martin (through the CCA) asked the HSE what investigations it had undertaken into the conduct of the directors and why they decided not to prosecute them. In a series of letters the HSE refused to explain the decision, beyond commenting that there was no evidence of individual responsibility.

In it’s complaint to the ‘Information Review Panel operated by the HSE, the Public Law Project has argued that the HSE both misinterpreted the law and misapplied its own disclosure policy when dealing with Mrs Martin’s enquiries.

If the challenge is successful, the HSE may have to change its current restrictive policy towards providing information to bereaved families.
The HSE's Complaints Panel is also considering a challenge, by the CCA, to a number of decisions where the HSE have refused to provide the CCA excerpts of HSE's own operational guidance. The CCA is arguing that the HSE is failing to apply its own 'significant harm' test when deciding whether or not to release information.

To read about HSE’s policy on information disclosure, Click Here

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Coroner forced to hold inquest
Judicial review proceedings has forced a coroner to hold an inquest into the deaths of four workers who were killed in September 1999 when they fell 25 metres from the Avonmouth Bridge.

In December 2001, Paul Forrest, the Coroner for the County of Avon, informed George Stewart, the father of 23 year old Paul – one of the four men who died – that he would not hold an inquest into the four deaths.

The Coroner refused to back down even after the Centre for Corporate Accountability wrote to the Coroner in July pointing out that the law required him to hold an inquest. To download letter that was sent to the coroner from the CCA, Click Here (word)

The Coroner only changed his mind after George Stewart initiated judicial review proceedings at the High Court. The action was taken by a solicitor from the Public Law Project.

Andrew Rodgers (40), Jeffrey Williams (42), Ronald Hill (39) and Paul Stewart (23) died after strong winds blew the gantry off the end of a rail, sending the workers plunging 25 metres to the ground.

In November 2001, Yarm Road Ltd (formerly Kvaerner (Cleveland Bridge) Ltd) and Costain Ltd were fined a total of £1million after pleading guilty to health and safety offences. The HSE had told the court that the companies had been involved in ‘dangerous working practices’.

The coroner had argued that he did not need to hold an inquest because the HSE had prosecuted the companies. He was, however, wrong in law.

George Stewart, said: ‘I am delighted that there will finally be a public inquest into the death of my son where witnesses can given evidence and I, through my legal representatives, can ask questions. Finally I, and the other families, can get to the bottom of how this tragedy took place.’

No date for the inquest has yet been set.

To download the Court Order which was sealed by the Court, Click Here (word)

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Family seeks new inquest
The family of Stephane Aineto, a 28 year old Frenchman killed in Brighton when he was run over by a Council refuse truck in July 2001 has won the right to hold a judicial review of the coroner’s inquest into the death that was held in December 2001.

The judicial review against the Coroner for the City of Brighton and Hove is being carried out by solicitors from the Public Law Project, a small national legal charity which undertakes test case litigation.

At the first inquest the coroner concluded that Stephane’s death was an ‘accident’. She added that ‘why this happened one cannot say’.
However the inquest was held:

Sandrine Mehadhebi Aineto, the sister of Stephane, commented: ‘We have tried our best to get the Coroner, Council and the Police to address our concerns, but it is now clear that we will only make progress through the judicial review process.

We wanted to avoid going to the courts, but we have been given no alternative. It is clear to us now that much of the potential evidence that should have been explored in the original investigation has been completely ignored.’

The CCA has been providing the family advice and assistance through its ‘Work-related Death Advice Service’ and put the family in contact with the Public Law Project.

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Family challenges CPS failure to prosecute council for manslaughter
The High Court will decide in March 2003 whether a decision by the Crown Prosecution Service not to prosecute Salford City Council, and/or a careworker, for the manslaughter of a 30 year old man in the Council’s care, was lawful.

Malcom Rowley, who had severe learning and physical disabilities and lived in a residential care home run by Salford City Council, drowned on 18 July 1998 when he was left unattended in a bath. He was unable to sit in a bath without assistance and had no capacity for self rescue.

The death was investigated by both the HSE and the police. In October 1999, she was informed that there was to be no manslaughter prosecution.

An inquest then took place in December and returned a verdict of ‘accidental death contributed to be neglect’. Brenda Rowley felt that the inquest left unanswered some important questions about the precise circumstances of Malcolm’s death and the role of the Council.

In February 2000, the CPS wrote to Brenda Rowley informing her that its decision had not changed. The CPS letter placed heavy reliance on the fact that ‘corporate failures’ played a ‘significant part’ in her son’s death, but stated that issues concerned with the Council’s responsibilities are ‘matters … the Health and Safety Executive are considering’.

Brenda Rowley sought advice from the CCA who assisted her in drafting a letter requesting that there be proper consideration of charges being brought against senior Council employees, and questioning whether the correct legal test was being applied.

The CPS reviewed its decision but in July 2000 gave its third decision that a manslaughter prosecution was still not appropriate.

Salford City Council subsequently pleaded guilty to two health and safety offences and were fined a total of £115,000.

Brenda Rowley then sent the CPS new evidence which had come to light – in particular information about a previous incident of a near drowning of a resident in another care home (which had been contracted by the Local Authority to provide care) prior to Malcolm’s death.

The CPS again reviewed its decision but for the fourth time concluded that there was insufficient evidence to prosecute the Council or any individual for manslaughter.

Brenda Rowley then contacted Tyndallwoods solicitors who, after further correspondence with the CPS, issued judicial review proceedings against the CPS concerning its failure to prosecute the Council or a careworker for manslaughter.

This case raises important issues as to whether the CPS is applying the test of manslaughter correctly in dealing with work-related deaths and what duty is upon the CPS to ensure the police undertake a full investigation into a company prior to it making a decision whether or not to prosecute.

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Judicial review fails
An attempt by the family of a fireman to overturn a decision by the Crown Prosecution Service not to bring manslaughter charges against a senior fire officer and the Greater Manchester County Fire Authority (GMFA) has failed.

In December 2002, a High Court Judge refused to give the family – which was supported by the Fire Brigades Union – permission to apply for judicial review.

Paul Metcalf drowned in a lake on 5th Sept 1999 whilst attempting a rescue of a school boy. Evidence at the Coroners inquest in September 2001 indicated that Greater Manchester County Fire Service has no proper procedures to deal with water rescues and that the methods training and equipment used by the Fire Service were inadequate. Barry Dixon has overall responsibility for operational matters.

The CPS however argued that Mr Dixon’s failures did not amount to gross negligence as the GMFA was ahead of almost all other fire brigades in preparing an overall policy.

In its application to judicially review the CPS decision, Thompsons, the lawyers acting for the family, argued that the CPS should not have relied on the position of other fire authorities. It also argued that the police investigation was inadequate.

The Judge however ruled that, ‘while it does not seem to me that for there to be a conviction of Barry Dixon in this case, it would be necessary to prove a falling far below the standard adopted by other fire officers ... the practice elsewhere would be a highly material factor in assessing the nature of the negligence.’ It also ruled that the failure by the police to interview Barry Dixon did not make the CPS decision ‘unlawful’ as ‘there was ample material upon which the [CPS] could properly take the decision.’

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Manslaughter Update
Corporate Manslaughter Conviction
Court of Appeal Quashes Conviction
Business Owners Acquitted
Two Manslaughter Trials start in February 2003

Corporate Manslaughter Conviction
In October 2002, the company, Dennis Clothier and Sons, and one of its directors, Julian Clothier were found guilty of the manslaughter of Stephen Hayfield (39) who died in November 2000 when he was hit by a 20-tonne trailer which was owned by the company. Bristol Crown Court heard that the trailer became detached from a tractor because it was dangerously loaded and the hitch mechanism connecting the trailer to the tractor was ‘badly worn’. Mr Clothier was responsible for the maintenance on the company’s vehicles, and the court heard that he should have noticed the defect which was ‘obvious to the naked eye.’ In December, he was sentenced to 240 hours community Service.

Court of Appeal Quashes Conviction
In October 2002, the Court of Appeal quashed the conviction of Brian Dean, the former owner of Brian Dean Demolition and Civil Engineers, who had been convicted in March of the manslaughter of two of his employees, Michael Redgate (46) and his son Carl (18), who died in July 2000 when a kiln collapsed on top of them. Stoke on Trent Crown Court heard that the two men were sent to demolish the disused kiln without proper instruction and with no previous experience of kiln demolition. The Court of Appeal however, ruled that the judge had failed to give proper directions to the jury on issues relating to causation and on the defence case. The manslaughter conviction was substituted for a health and safety offence.

Business Owners Acquitted
In November 2002, Norman Cliffe, (who traded as Nightingale Cleaning Services) and Justin Amos (who traded as Industrial Cleaning Services) were acquitted of the manslaughter of Glenn Whalley (28) and Anthony Redfern (40) who died in October 2000. They were burnt to death whilst cleaning Holmes Place health club in Nottingham. Leicester Crown Court heard that the men had been using unsuitable chemicals and had not been made aware of the dangers they faced. The two died after the industrial chemicals they were using ignited. The two men pleaded guilty to two health and safety offences and were fined £5,000 and £2,500 respectively. Simon Construction Ltd, the main contractors, was convicted of two health and safety offences and fined a total of £40,000.

Two Manslaughter Trials start in February 2003

Analysis

How to challenge a decision made by the HSE, Local Authorities, Coroners, the Police or the CPS
This section of the newsletter looks at the different ways in which workers and the public can challenge decisions concerning

What decisions can be challenged
Ways of challenging Decisions

What decisions can be challenged
Workers and members of the public can challenge any decision that has an impact upon them.

HSE and LAs: The type of decisions, made by HSE and LA inspectors that could be challenged are as follows. A decision not to:

Coroners: Coroners are involved in holding inquests into work-related deaths. Bereaved families may want to challenge decisions involving a failure to:

Police: The police are involved in the investigation of manslaughter following work-related deaths. Bereaved families may wish to challenge

CPS: The CPS decides whether or not to prosecute an individual or company for manslaughter following a work-related death. The bereaved family may be concerned about:

Ways of challenging Decisions

There are a number of different ways to challenge decisions made by these bodies.

Internal Complaints: Each of these bodies (though not coroners) have mechanisms which allow people to make complaints, and it is usually preferable to use the internal complaint mechanism of the relevant organisation before considering the other options below. The HSE, for example, suggests that you write to the line manager of the person you are complaining about and if not satisfied with that, to write to the Director General. However you should always be aware that if you are considering a ‘judicial review’ of a decision (see below), an application must be made to the High Court within three months of the decision that you want to challenge.

Ombudsman Complaints: individuals who have made a complaint to the HSE or the LA and are not satisfied with the response, can make a complaint to an ‘Ombudsman’. This is an independent body concerned with investigating ‘mal-administration’ on the part of public bodies. A person may have to decide whether or not to make either an ombudsman’s complaint or a judicial review application. There is no Ombudsman for either the police or the CPS.
A complaint to the Ombudsman which is upheld can be a very effective way to ensure that the HSE or LA changes its practices or policies; however the decision may come too late to change the particular HSE or LA decision that was the original subject of your complaint.

Judicial Reviews: Certain decisions can be subject to a ‘judicial review’ in which High Court judges make a ruling as to the ‘lawfulness’ of the decision. This route requires the involvement of a lawyer and can be very expensive – though legal aid is available. An application must first be made to the High Court for ‘leave’, and only if this is successful will the case go before a panel of judges for a decision. A judicial review application must be made as soon as possible (and definitely within three months) from the time the decision was made.

Judicial Review can be the only way in which to force the Police, HSE, Local Authority or Coroner to either do something which it had not been willing to do or – in the case of a decision not to prosecute – to reconsider its decision. Judicial Reviews will often allow the law to be clarified on a particular point which can have far reaching effects.

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Focus on Judicial and Ombudsman Complaints

Judicial Reviews
Ombudsman

Judicial Reviews
In recent years there have only been two successful judicial reviews concerning the actions of the CPS and the HSE

CPS – failure to prosecute
In March 2000, the family of Simon Jones, successfully judicially reviewed the decision of the CPS not to prosecute Euromin Ltd and its managing Director, James Martell for the manslaughter of Simon who died in April 1999 on his first day at work.

The High Court judge ruled that the CPS had failed to apply the law of manslaughter correctly – in particular by using a ‘subjective’ test when assessing whether James Martell was ‘grossly negligent’ rather than an ‘objective’ one. The court also ruled that part of the reasons given by the CPS not to prosecute was ‘irrational’. The family were represented by Christian Fisher Solicitors

As a result, the CPS were required to reconsider its decision not to prosecute and in October 2001, James Martell and the company was prosecuted for manslaughter. Both were acquitted, though the company was convicted of health and safety offences.

HSE – failure to investigate
On 12th August 1997 a 20 year old man in Manchester was killed when a forklift truck struck the car in which he was driving.

The Health and Safety Executive decided not to investigate the incident and the family judicially reviewed this decision. The case came before the Courts in April 2000 but before the Judge could rule on the case, the HSE agreed that an investigation would be carried out by a senior officer of the HSE, with no previous connection with the case and that it would be carried out with the involvement of the police and Trafford Borough Council. The solicitors were Hugh Potter and Co. They were assisted by the Greater Manchester Hazards Centre.

The director of the company is now facing health and safety offences.

Ombudsman
There have been more Omudsman Complaints against the HSE. CCA Research shows that over half of all the fully investigated complaints to the Parliamentary Ombudsman ßsince 1990 were either upheld or partially upheld.

To see all the ombudsman’s Complaints, Click Here

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Workers who have died between September to December,
Click here to see list

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