This 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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TOP STORIES
New Statistics Show Sharp Increase in Death
Victims of Crime?
Government Halts Reform of Corporate Sentencing

OTHER NEWS
New Investigation Policy
New Policy for Bereaved
Company Loses Operators Licence
Coroner Refuses to Hold Inquest
HSE Agrees to Reconsider Decision not to Prosecute
HSE rethinks Section 37 charges

ANALYSIS
New Enforcement Policy Statement
Prosecution Analsyis
Subscription Details
Contact Details

New 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.

The HSE are however disputing these figures.

A 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.

The sharpest increases have taken place in the manufacturing and services Sector, with a decrease in the number of deaths in the construction industry.

The 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.

The 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 2002.

There 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.

This date does not include deaths reported to Local Authorities, or deaths due to domestic gas applicances.

The HSE disputes these figures arguing that they are very provisional and do not reflect HSE’s ‘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

However, the data - upon which the Update’s 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.

Whilst there will always be some entries which are found, after investigation, not to be work-related, HSE’s 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.

It is therefore unclear why HSE’s ‘validated’ figures are so different from the data on HSE’s databases.

You 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 (word file)

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Victims of Crime?
The Home Office’s ‘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.

In 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."

Although 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"

Despite 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 submissions.

• To see the current Victims Charter of the Home Office, click here
• To see the current Victims Charter of the Crown Prosecution Service, click here
• To download Home Office Consultation document on a new Victims Charter, click here (PDF Document)
•To see TUC response to the Government's Proposals, click here
•To see how other organisations responded to the Government's Proposals, click here

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Government Halts Reform of Corporate Sentencing
The Home Office’s 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".

In 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 Government’s 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".

The 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 Government’s commitment to consider innovative corporate penalties. sentencing of companies.

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New Investigation Policy
The ‘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.

The 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.

In 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 protocol.

• For further information on the investigation of work-related deaths and the Protocol of Liaison, click here
• To download the Centre’s comments in response to the NLC review click here (Word Document)

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New 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.

The 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.

The 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.

•To see HSE consultation documents (Dec 2001) and CCA responses, click here

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Company Loses ‘Operators License’
The 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 the decision.

Gerard 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.

Initially, the police only conducted a road traffic investigation but, due to pressure from Tom and Bernadette Byrne, Gerard’s 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.

Subsequent 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 vehicle maintenance.

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Coroner Refuses to hold Inquest
Mr 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 Avonmouth Bridge.

In 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.

In 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 his decision.

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HSE agrees to Reconsider Decision not to Prosecute
After 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 Northside.

This 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 Christopher’s 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 O’Shea, a member of the campaign, and representatives of the CCA were also present at the meeting.

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HSE Rethinks Section 37 Charges
The HSE have agreed to reconsider its decision not to prosecute any of the directors of Express Corrugated Cases Ltd over the death of Frank O’Toole 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.

In February 2001, after a meeting with Frank’s 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 director’s part or the result of his neglect.

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HSC's New Enforcement Policy Statement
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.

To download new Enforcement Policy Statement, click here

To see documents relating to the consultation process prior to publication of new Statement, click here

The new Statement includes a number of notable reforms:
Wider Application
Accountability
Formal Cautions
Clearer Investigation Policy
Stricter Prosecution Policy
Prosecuting Individuals
Role of Resources
Inspectors and the Court
CCA Comments

Wider Application: Local Authority (LA) inspectors are ‘required’ to follow the EPS. In the past LA inspectors were simply ‘expected’ to follow it.

Accountability:The 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:

‘Ensure 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 Wales ….’

This 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.

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Formal Cautions: The policy introduces a new power to inspectors – the use of ‘formal cautions’. The footnote to paragraph 6 states that:

‘A 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.’

In effect a caution is an alternative to a prosecution, where the organisation or individual admits to the offence.

Clearer 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:

Stricter 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:

The 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:

However, prosecutions will not "normally" take place in the above two circumstances; the enforcing authorities only have to "consider prosecution".

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Prosecuting Individuals: 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.’

The 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.’

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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:

‘In 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.’

It goes on to state that:

‘In 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.’

CCA Comments
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:

The 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.

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Prosecution Analysis
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 HSE’s Prosecution Database.

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).

To 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 or organisations

14 cases involved defendants that were individuals

December 2001 Total Cases 64
40 cases concerned defendants that were either companies or organisations

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