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On 6th June 2000 Anthony Scrivener QC was the keynote speaker at the Annual Symonds Safety Lecture at the Institution of Civil Engineers. The lecture was entitled 'Corporate and Personal Manslaughter: Where the Offence is - Let the Great Axe Fall'. His talk began with the following opening statement:
"Although in this short address I will refer to the Government's new proposals for corporate manslaughter I would wish to drive home a clear message to all of those involved in the management of companies.
Even without these reforms there is an unstoppable movement towards using the full force of the criminal law against companies and executives forming the management of companies where death or injury is caused by serious negligence.
They are out to get you and that is the clear message you should take back with you from this meeting to your boardroom.
If you ignore the trend then you do so at you peril."
Anthony Scrivener QC Tuesday 6th June 2000
It is now nearly eight years ago since that speech was made and the words of Mr. Scrivener QC have come true. The Corporate Manslaughter and Corporate Homicide Act received Royal Assent on 26th July 2007 and came into force on 6 April 2008, 7 years and ten months to the day since that speech was made. Its aim, simply to make organisations more accountable and to be more easily brought to justice where death occurs in the workplace.
The statutory offence of Corporate Manslaughter under the new Act, while designed to provide accountability for very serious management failings, only applies to organisations who will face huge fines, possibly up to 10% of a company's annual turnover during the pervious 3 years. For large public and private organisations this could result in fines of hundred's of million pounds according to the Sentencing Advisory Panel.
Although individuals cannot be prosecuted under the new Act, Directors and Senior Managers can still be prosecuted for 'Manslaughter by Gross Negligence' under existing common law. In addition, a Director and Senior Manager can face prosecution under Section 37 of the Health & Safety at Work Act 1974 in relation to any inadequacy in their organisation's health and safety procedures that may have led to a death.
Manslaughter by Gross Negligence.
The key test for Manslaughter by Gross Negligence is whether a reasonably prudent person (for example, the Director or Senior Manager responsible for Health & Safety) would have foreseen a serious and obvious risk of death, and whether that individual's conduct fell so far below the standard of a reasonably prudent person as to amount to a criminal act or omission. If this is proved Directors and Senior Managers convicted of 'Manslaughter by Gross Negligence' face a sentence of up to life imprisonment. (You can read more about acts and omissions in our new book - 'Understanding Unreasonable Force')
In the case of R.v. Adomako (1995) 1 AC 171, the House of Lords laid down a four stage test for involuntary manslaughter by means of a grossly negligent act or omission. The test is as follows:
§ Did the defendant owe a duty of care towards the victim who has died?
§ If yes, has the defendant breached that duty of care?
§ Has such breach caused the victim's death? and,
§ If so, was that breach of duty so bad as to amount to gross negligence warranting a criminal conviction?
Consideration of the above questions will involve the application of legal principles which are usually regarded as forming part of the civil law of tort, not necessarily the criminal law. What this means is that the burden of proof will be based on the 'balance of probability', a lower threshold than the requirements of a criminal court where guilt must be proved 'beyond reasonable doubt'.
Section 37 of the Health and Safety at Work Act 1974.
Under section 37 of the Health and Safety at Work Act 1974 an individual may be prosecuted where an offence has been committed by a company with the "consent or connivance" of an individual, or was caused or attributed to any neglect or negligent act (or omission) by that individual.
This is further re-enforced by Regulation 21 of The Management of Health & Safety at Work Regulations 1999 states that:
"Employers are not afforded a defence for any contravention of the relevant statutory provisions by reason of any act or default caused by his employee or a competent person appointed by him.."
In short, what this means is that under section 37 of the Health and Safety at Work Act 1974 a Director or Senior Manager responsible does not have a defence for any contravention or breach of health and safety caused by an act or an omission of an employee, or by a person appointed to give competent advice.
Implications regarding the use for physical force in the workplace.
As we reported in a previous article on this subject is that the new Act also includes an amendment to include deaths in custody (this is likely to also have implications for all local authority areas such are care homes, etc.). This amendment means that organisations can be prosecuted where death results from the use of physical force, particularly where companies and organisations have failed to manage the risks associated with the activity such as ensuring that the training is carried out in such a way as to minimise the risk to loss of life - a positive obligation under Article 2(1) of the Human Rights Act 1998.
One point of consideration (of which there are potentially many) is that Directors and Senior Managers, particularly the Director responsible for Health and Safety in the organization, needs to make sure that when expecting staff to be able to undertake restraint in the workplace that the staff expected to do it are capable of being able to do it.
This is a requirement of Regulation 13 of The Management of Health & Safety at Work Regulations 1999 (Capabilities and Training) which states that:
"Every employer shall, in entrusting tasks to his employees, take into account their capabilities as regards health and safety."
The implication of this means that if any organization simply decides to commission training because it is 'approved' or 'accredited' without doing their own due diligence to ascertain whether or not the training is both appropriate and effective (the latter meaning staff can actually use the skills effectively) runs the risk of:
1. The organization being prosecuted under the new Corporate Manslaughter Act,
2. The Director or Senior Manager identified as the responsible person being prosecuted under Section 37 of the Health and Safety at Work Act for a failing under Regulation 21 of the Management of Health & Safety at Work Regulations 1999, or
3. The Director or Senior Manager being prosecuted for Manslaughter by Gross Negligence under Common Law.
This above points are particularly applicable and relevant if it can be shown that the death could have been avoided by the implementation and use of restraint skills that were available and that would have been more effective in reducing the risk of death had they been used.
On that basis, one area of intervention and restraint that is possibly worth comment are those methods of intervention that are promoted under the banner of being 'therapeutic'. By the use of the word 'therapeutic' it would be easy for a Senior Manager or Director to be misled into believing that the system promoted is 'safer' and possibly more 'appropriate', particularly if it is being promoted on the basis that it has been 'accredited'.
Therapeutic methods of restraint
Over the years we have seen many systems of intervention promoted as being 'therapeutic' used in a wide range of organizations. Many of these systems have been developed in America, a nation by the way that kills more people with restraint than we do here in the UK! The thing to bear in mind here is that the Human Rights Act and the new Corporate Manslaughter Act do not apply in the US where many of these programmes and systems have their origins.
Therefore, it is highly probable that many of the programmes advertised and promoted as being 'therapeutic', that have derived specifically from America, are inconsistent with the requirements of UK and European Law. This is not to say that they are not possibly morally or ethically sound, but the fact is that they are possibly not legally consistent with UK and European legislation is something that all Directors or Senior Managers should be aware of because if it goes wrong it is UK law that will be enforced - not US law.
For example, we have known for years that the use of the prone position, basket-holds, neck locks, lack of supervision, too many staff and single person restraint, increase the risk of death during restraint, especially combined with possible other risk factors. Yet still, in 2008, some restraint programmes (some promoted as being 'therapeutic') are still teaching basket-holds, single person-restraint and prone restraint as primary methods of intervention!
As a result of this new Act all Directors and Senior Management need to now be more aware than ever of the potential drawbacks of the systems of restraint they are possibly passively allowing to be used in their workplace. It is no longer enough just to rely on a restraint programme that has a cleverly marketed name, or one that has been 'approved' or 'accredited' by any particular agency - even those that are allegedly 'approved' by certain Government Departments.
Insurers have said that the new Corporate Manslaughter and Corporate Homicide Act was a warning to businesses to ensure that proper health and safety measures are in place. In the Times on Saturday 5th April, Tom Sheffield, technical director at Aon, the risk advisor and insurance broker said:
"This serves as a wake-up call to businesses to update their health and safety controls for the wellbeing of their employers and the public."
And as Anthony Scrivener QC said almost eight years ago:
"They are out to get you and that is the clear message you should take back with you from this meeting to your boardroom. If you ignore the trend then you do so at you peril."
NFPS Training
There are many reasons why training with us can reduce your liability under the new Corporate Manslaughter Act, and below I have listed just 10.
Our training has been subject to:
1. A comprehensive legal audit undertaken by a senior Barrister at Law.
2. A complete Health and Safety Review with our skills and methodology based on thorough risk assessments, some specifically designed for the activity of physical restraint.
3. A thorough technical audit by an independent Governing Body itself mandated by Government.
4. It forms part of an ISO 9001:2000 Quality Management system - again specifically devised for physical skill training.
5. Our assessment and performance profiling criteria is based on high-level coaching and instruction methodology used by Olympic and international coaches.
6. Our skill assessment is based on a comprehensive assessment framework - again designed specifically for use and tested over years.
7. We are an approved Exexcel / BTEC centre and we have written a range of Customised BTEC Awards in the field of physical restraint, breakaway and self-defence, which, as a qualified trainer with us, you can be licensed to deliver in your workplace.
8. Our instructor and coaching courses are held at the National Sports Centre which offers an environment conducive to effective learning at extremely good value for money.
9. We have written and published two books on the subject which are now used by a variety of sources throughout the UK.
10. We can change any course, including the techniques within it to suit your needs specifically and even write the risk assessments with you.
If you are interested in training with us our next Restraint and Breakaway Instructors Qualifying Course, including the BTEC Level 3 Advanced Award in Physical Restraint Practice, is being held between the 15th-19th September this year. Currently we have only 10 places left. For more info - click here.
In addition, if having attended the Instructors Course you would like to further your professional development, you can also attend our BTEC Level 3 Coaching Course that is being held between the 3rd-7th November. This is only available to individuals who have successfully completed the September course. For more info - click here
Please note that by attending both courses you also qualify for the new PTLLS (Preparing to teach in the Lifelong Learning Sector) Level 4 Award without having to attend another course!
Please do note that places on both courses are limited and are allocated on a first-come first-served basis only.
Also, on the 13th May Deborah Jones and I will be delivering a one-day presentation on the Use for Force with Children and Young People. The cost of the event, including lunch and refreshments is only £100 per person. For more information - click here.
It's worth bearing in mind that the cost of both courses is a small price to pay when you consider the potential cost of hundreds of millions of pounds by not knowing what we will be teaching you should you end up in court!! |
