Relative justice - Hazards issue 102 April-June 2008

Hazards 102 April-June 2008

How a family’s union backed campaign saw a work killer convicted

Daniel Dennis died at work aged 17. After a lengthy campaign by his parents, Daniel’s boss admitted manslaughter and on 6 May 2008 received a 10 month jail term. As a new corporate manslaughter law takes effect, Hazards editor Rory O’Neill looks at what it takes to put a killer behind bars.

Relative justice
Hazards 102 April-June 2008

Roofing firm owner Roy Clark, 50, only admitted manslaughter on 7 April 1008 on the eve of trial, almost five years to the day after the death of teenage employee Daniel Dennis (right). The 17-year-old, who had been in the job for just one week and who had not been properly trained and had no safety equipment, fell to his death through a store skylight on 8 April 2003 (Hazards 94). Clark’s 10 month jail sentence on 6 May 2008 did not reflect the slow but correct machinations of the legal system.

It took a union-backed public campaign, an inquest verdict and a judicial review before Daniel’s family (pictured above) saw Roy Clark in court. The prosecution of the North Eastern Roofing boss for manslaughter, refused by the Crown Prosecution Service (CPS) in 2006, only came to court in 2008 after the December 2006 judicial review heaped scathing criticism on the CPS (Hazards 97).

CPS had said it would not take action because there was no realistic prospect of a conviction. Without the family’s union backed campaign, that would have been the end of the matter. But in his High Court ruling, Lord Justice Waller said the CPS did not take into account the “seriousness of a failure to give proper instruction not to go on the roof prior to induction or proper instruction.”

The legal challenge was brought by Daniel’s parents, Anthea and Peter Dennis, and backed by the union GMB. “You’ve got to fight to find some peace,” mum Anthea told Hazards. “We can never bring back Daniel, we know that. But they have got to be held accountable.” The 51-year-old added: “You’ve got to get to the truth. You think ‘that’s not right’ – not just the fact he was just 17, that there were no safety precautions at all, no safety equipment, no barriers, no harnesses. Nobody should have been up on that roof.”

The investigating authorities were guilty of serial failings, she says. When an inquest jury in Newport in March 2005 returned an unlawful killing verdict on Daniel’s death (Hazards 94), neither CPS nor police representatives, except for the family’s liaison officer, were there to hear it. They had to request the notes taken by a journalist from a local paper when preparing evidence for the manslaughter case.

“We’ve been very fortunate,” said Daniel’s mum, Anthea, grateful for the legal backing the family have had throughout from Thompson’s Solicitors, provided by GMB. She said without this support the family could not have afforded the protracted legal battles “if we’d sold everything we own.”

Boss free law

The new Corporate Manslaughter and Corporate Homicide Act, which took effect on 6 April 2008, does not have any provision to punish company bosses. Instead it allows companies to be found guilty. The Department of Justice said under the new law “companies, organisations and, for the first time, government bodies face a criminal offence and larger fines if they are found to have caused death due to their gross corporate health and safety failures.”

It also credited campaigners with winning the law. “The Corporate Manslaughter Act is a landmark in law and the culmination of ten years of campaigning by unions and other groups,” a ministry news release said on the day the law came into force.

TUC general secretary Brendan Barber said the law was an overdue measure. “Too often in the past senior executives have taken an overly casual approach towards the safety of their employees. The catalogue of avoidable workplace deaths in recent years has highlighted in stark terms the need for a new law and for a change of attitude from those at the top of British companies.”

He said: “The new law would be tougher if it were accompanied by a new legal health and safety duty on directors and a requirement on companies to report annually on their workplace safety culture,” and added “we hope the Corporate Manslaughter Act will see the start of a change in the safety culture at the top of the UK's companies and organisations.”

Daniel’s mother, Anthea Dennis, doesn’t hold out too much hope of this. “I don’t think the law is much different. Yes, you can publicise the fine but the penalities are like a thorn in the thumb. What gives them any incentive to get it right?” Commenting after the court case, Daniel’s father, Peter Dennis, added: “He has pleaded guilty and that’s all we wanted. We have to serve a life sentence ourselves – me and my family will always be grieving.”

“Daniel had a death sentence,” Anthea said. “Roy Clark’s life will continue someday.”

Fine time for bosses

Daniel’s older brother Mark, 27, and sister Rachel, 33, were hit hard by the teen’s death, and the strain showed. “My poor kids. Mark stays at arm’s length because the house reminds him of Dan,” said Anthea. He said as much in his impact statement to the court, she added. “Daniel was our baby. It’s affected us at every level, the whole family. You really want to die. I have never been so low. I never appreciated how much pain you could be in. And it doesn’t go away, you just learn to live with it.”

Every aspect of their lives was affected. “Because of the pain, you don’t function properly. I had a good job as an assistance store manager. I lost my job, I lost my pension,” she said. “Everything – it affects you physically, mentally, emotionally, financially. Your friends disappear, not because they are bad people, but because you change, you have no zest for life.”

She misses Dan friends, who used to be regular visitors to their home. When she sees them getting on with their lives, getting a house, having a baby, “that’s when it hits you. “Now a good night’s sleep is with a tablet.”

What’s the law say on manslaughter?

The Corporate Manslaughter and Corporate Homicide Act, which came into effect on 6 April 2008, will make it easier to prosecute companies, but will not see bosses facing jail time.

Prosecuting companies
The Act applies to deaths in the UK where the death resulted from activities from 6 April 2008 and where the firm’s behaviour fell “far below what can reasonably be expected” and led to the death. A substantial element of the bad behaviour must have been at a “senior management” level. The death need not necessarily be the result of a traumatic injury, it could be a fatal occupational health problem. Examples could include AIDS or hepatitis caused by a preventable needlestick or other sharps injury or a fatal asthma attack caused by poorly controlled chemicals.

The Act applies to public and private companies. Parent companies can be prosecuted. Where the death resulted from the actions of a subsidiary, action will be taken against the offshoot. The police will be the main investigators of corporate manslaughter cases, supported by health and safety regulators, usually HSE. Cases will be prosecuted by the Crown Prosecution Service (CPS) in England and Wales, and the Procurator Fiscal Service in Scotland. Convicted organisations can receive an unlimited fine. The police are now called in as standard when there is a death at work.

Prosecuting bosses
To get an employer – a director or senior manager – convicted and behind bars for a workplace death takes a lot of work, as the Daniel Dennis cases shows. The police and CPS frequently defer to HSE, who will only bring charges on criminal breaches of safety law. To get a manslaughter charge against an individual requires solid evidence to convince the police and CPS that the breach of a legal duty by the named boss amounted to “gross negligence” and caused the death.

It may be difficult to establish a company’s duty of care also applies to the individual company director, owner or manager. Executives of large corporations, particularly, are insulated from blame by layers of bureaucracy. No director of a large or medium-sized company has so far been convicted of manslaughter for a health and safety offence. The same individual manslaughter law can and has been used against employees.

Centre for Corporate Accountability (CCA)
Hazards ‘Get justice’ poster

The April 2008 Corporate Manslaughter and Corporate Homicide Act is a response to widespread criticism of the existing law, after a series of failed prosecutions over disasters such as the 1987 capsizing of the Herald of Free Enterprise ferry in the English Channel, which resulted in the deaths of 193 people, and the Southall train crash in 1997.

Prosecutors will no longer have to prove that an individual acted as a ‘directing’ or ‘controlling mind’ and was responsible for a death - they can charge a company instead where there is “senior management failure”.

David Bergman, executive director of the Centre for Corporate Accountability (CCA) said the changes would mean large companies “have much more to fear. Now there is the prospect they could be held accountable.”

The CBI, the employers' body, said in December 2007 there was “considerable concern” among members that new fines could be “way out of proportion.”

Others, particularly unions and advocates for bereaved families, think the business community will be quietly rejoicing, have held off a sustained campaign for directors to have explicit legal duties placed on them, combined with ensuring there is no greater likelihood of facing a jail term for serious safety failings.

Families Against Corporate Killers (FACK) said it felt fines did not “reflect the seriousness of the offence of taking a life by negligent management of health and safety, often over a prolonged period, saving money and cutting costs.”

The major penalty facing a company guilty of corporate manslaughter – an unlimited fine – is no improvement on the sentences already available at Crown Court for the most serious workplace safety offences. The Sentencing Advisory Panel, a body advising the government on legal matters, said in January 2008 that firms found guilty in court should be hit with penalties of as much as 10 per cent of their turnover (Hazards 101).

Safety professionals’ organisation the Institution of Occupational Safety and Health (IOSH) said sanctions including far-reaching improvement orders, substantial fines, court-ordered publicity and in the worst of cases, suspension of all or part of the board of directors, should all be at the court's disposal when sentencing for corporate manslaughter or homicide. IOSH president Ray Hurst said: “We’re keen that those organisations found guilty of this grave offence are required to make the fundamental changes needed to improve their leadership, systems and cultures.”

He explained: “Some fairly radical measures may be needed, for example, where there have been extreme cases of collective senior management failure, the courts may consider it’s in the best interest of public and employee health and safety for all or part of the board to be suspended. In such situations, alternative governance arrangements will be needed to ensure the safe operation of the organisation.” He said where failings of senior management led to deaths, “we must all look very closely at what went wrong and learn lessons. Sentencing can be a useful tool for achieving improvements far wider than in just the convicted organisation itself.”

Jailing the killers

Both safety minister Lord McKenzie and Health and Safety Executive (HSE) chair Judith Hackitt have indicated the door is not closed on the issue of legally binding directors’ duties. Hackitt said take up of the Institute of Directors (IoD) voluntary guidance (Hazards 101) had been unimpressive and warned without improvements “people shouldn’t be surprised if we take a regulatory approach.”

For now it is not the new law that will see negligent and deadly employers behind bars. Bloody-minded campaigning and a demand that the authorities use the individual manslaughter law saw Daniel Dennis’ killer convicted of and jailed for manslaughter.

“I’d have fought for Daniel in life. It’s the same thing in death,” said mum Anthea. “We’re just numbers in the system. If they treated the people they have working as well as they treated their assets, there’d not be deaths at work.” Families aren’t prepared to deal with authorities immediately after a death, she said. “How do you go and say ‘you need to get really good legal advice’ when they just want to die?”

It was six weeks after Daniel was killed that a family friend, a regional representative with the GMB, persuaded the family to seek legal help through the union.

At the moment, under a third of workplace deaths – about 30 per cent - result in an HSE prosecution. Historically the chance of a manslaughter charge being brought has been vanishingly small. So far 25 company owners or directors have workplace manslaughter convictions, according to the Centre for Corporate Accountability, although not all have served time.

Anthea now says it is important families get advice and support at the earliest stage. “I know there are people out there who feel that haven’t had any justice, and so we feel lucky in some ways.” Without constant pressure from the family through the courts and through keeping Daniel’s death in the public eye, she knows they would never have seen Roy Clark convicted.

She believes the police let them down because “they don’t treat deaths at work like any other manslaughter case, they don’t treat it as a serious crime.” But she is particularly angry with the CPS. “They are the only people we can look to for justice and they are the very people who let you down.

“I just hope CPS will now look more closely at cases that come in to them. I feel they leave it to the Health and Safety Executive (HSE) and think a fine is enough, and it’s not.”

Resources

Hazards ‘Get justice’ poster , deadly business webpages and enforcement webpages
HSE and Ministry of Justice corporate manslaughter law webpages • Ministry of Justice news release
TUC corporate accountability webpages • TUC news release
Families Against Corporate Killers (FACK)
Unite corporate manslaughter webpage • Unite news release
CCA corporate manslaughter webpages and brief guide to the Act

Get justice: When a worker dies, somebody should pay

Get wise Good legal support is essential and at the earliest possible moment – union members can get expert legal advice through the union. This can help with a compensation claim, or with any investigations or prosecutions. Don’t forget occupational diseases – they kill far more than workplace injuries.

Get the dirt Unions should be involved in investigations of workplace deaths. Safety reps should make sure they are not bypassed by the police or Health and Safety Executive (HSE). HSE has a ‘Working with victims’ policy that requires it to provide advice and support to bereaved families, including details of progress in any investigation.
HSE enforcement webpages

Get back up The Centre for Corporate Accountability CCA) has provided free advice to hundreds of bereaved families and knows what they should expect from the police, Crown Prosecution Service (CPS), coroner and Health and Safety Executive (HSE). Tel: 020 7490 4494. CCA website and advice service. Inquest can provide free legal advice and support on the coroner’s inquest system. Tel: 020 7263 1111. Inquest website

Get legal Separate laws deal with workplace manslaughter charges against a boss and against a company. Firms can be prosecuted under the Corporate Manslaughter and Corporate Homicide Act if senior management are at fault in the death. Named bosses can be prosecuted under the general manslaughter law, if their gross negligence caused the death.

Get stroppy Families Against Corporate Killers (FACK) is the key campaigning organisation, with activists nationwide. You may have to get stroppy – official bodies sometimes only act when pushed or embarrassed by publicity. Tel: 0161 636 7557. FACK website.

Hazards poster
Get justice – no one should get away with murder at work

Unions say the law doesn’t go far enough

Unions believe additional measures are necessary to make negligent employers fully accountable for workplace deaths.

Tony Woodley, joint general secretary of Unite, said: “The new act has been so long in coming that it is difficult not to welcome its arrival but unfortunately the new legislation does not go far enough. Although it does create a new homicide offence that should make it easier to prosecute companies, individual directors or senior managers will still not be held responsible for health and safety failures that result in the death of either their employees or members of the public.”

He added: “We believe that individuals found guilty of gross breaches that result in people's unlawful death need to face stiffer personal penalties including imprisonment, larger fines and disqualification.”

UNISON health and safety officer, Robert Baughn said “the Act needs to step up a gear and go further to protect workers. Individuals must be held responsible, so they can face a prison sentence if they are convicted of corporate manslaughter. We would also like to see wider sanctions such as corporate probation and the disqualification of directors to make this legislation more effective.”

GMB national safety officer John McClean said: “Employers who kill their employees can rely on GMB to put the new Act to the test,” but added “until there is a real threat of individual director prosecution unfortunately GMB cannot see the industrial death rate falling.”

Alan Ritchie, general secretary of the construction union UCATT echoed this sentiment. “The new Act will not save the life of a single construction worker. Only by creating the possibility that directors will go to jail, will there be a change of culture in the construction industry. Too many bosses play fast and loose with workers’ lives because they know that the worst that will happen to them is that they will be fined.”

STUC challenge on Scottish work deaths

The Scottish Trades Union Congress (STUC) is urging Scotland’s government to act quickly to remedy deficiencies the new Corporate Manslaughter and Corporate Homicide Act. STUC general secretary Grahame Smith said: “While this legislation is being peddled as the machinery to deliver that justice for bereaved families, it is clear that the governments in both Westminster and in Holyrood have let down the families of workers killed by their employers.”

He added: “This legislation will not allow for prosecution of individuals, but only of the company. Even then, only if the failures of a senior manager can be identified.” He said STUC and victims’ families believed this was a “fudge” that would undermine the new law. He challenged the country’s government, which has devolved responsibility for justice issues, to take action to improve on the Act’s provisions.

Smith said: “The Scottish government has stated that they want to see how this settles in before considering legislation to amend the current common law of culpable homicide. The trade union members of Scotland and their families must ask cabinet secretary for justice, Kenny MacAskill, a question today. ‘Is waiting for a negligent employer to cause a workplace fatality the Scottish government’s vision of delivering justice to victim’s families?’” A total of 31 workers were killed in Scotland in 2006/07, according to the Health and Safety Executive.

Fines are not fine say families

Safety campaigners and the family of a teenage construction worker killed as a result of the negligence of three site firms have expressed dismay at the size of the penalties imposed by a court. Steven Burke, 17, (pictured below) died on 30 January 2004 just a fortnight after his bosses have been served with a warning notice because two safety harnesses were in such poor condition (Hazards 101).

Steven burke image In February, 3D Scaffolding Ltd was fined £60,000 and ordered to pay £20,000 costs. Site supervisor David Swindell junior, son of David Swindle, managing director of 3D, was fined £7,500 and ordered to pay £15,000 costs. Structural repair specialists RAM Services Ltd was fined £75,000 and £20,000 costs. And principal contractor Mowlem plc was fined £75,000 and ordered to pay £70,000 costs.

Hilda Palmer of Families Against Corporate Killers said: “No amount of money would bring Steven back or hurt the defendants whose actions and inactions led to his death, but the family feel fines should be much greater to bring home the full seriousness of what they have done. We feel fines alone are an insufficient penalty for taking a life.”

Fined yes, justice no

Colas Maintenance firm Colas has been fined £90,000 six years after a safety breach that cost two workers their lives. Sub-contract workers Fred Cook, 38, and colleague John Crimmins, 33, were electrocuted when the mobile tower light they were pushing came into contact with a high voltage power line. The firm, which was the main contractor on the work, was also ordered to pay £24,000 costs. HSE’s Rob Hirst said: “Had the risks from inadvertent contact with overhead power lines been recognised, the work activities properly planned and suitable control measures put in place, then this incident would not have occurred.”

JCB firms Two JCB companies have been fined after two employees, Darren Ellis and Paul McNamara, died in separate incidents while undertaking routine tasks. HSE brought the cases against JCB Earthmovers Ltd and JC Bamford Excavators Ltd before Stafford Crown Court. JCB Earthmovers Ltd was fined £200,000 and ordered to pay costs of £31,366 for safety offences relating to the death of Mr Ellis, 33. JC Bamford Excavators Ltd was fined £266,000 and ordered to pay costs of £31,701 after the death of Mr McNamara, 43. HSE inspector Lynne Boulton said: “Both these tragic deaths were not only regrettable but also entirely preventable.”

Alfred McAlpine Road builder Alfred McAlpine Capital Projects Ltd has been fined £250,000 following the death of a motorcyclist at a roadworks site. The firm was also ordered to pay £5,859 costs. The fatal incident occurred on 29 August 2005 on the former A228 old Ratcliffe Highway, when the motorcyclist hit temporary concrete crash barriers that had been laid in a line across the road. At the time of the tragedy, there were no longer warning signs or traffic cones along the route to warn drivers of the closure.

First buses Bus company First Capital East Limited (First) has been fined following the death of engineer Brian Norman, who was crushed at a bus depot when a cleaner moved the bus he was working on. First was fined £120,000 and ordered to pay costs of £95,000. HSE inspector Charles Linfoot said employers “should ensure that operations such as carrying out minor repairs and cleaning and refuelling, do not put employees and others at risk of injury or death.”

Easco Ltd A Coventry scrapyard Easco (Midlands) Limited has been fined £200,000 and ordered to pay £55,000 costs after worker Ronald Barnacle, 58, was killed by a reversing skip lorry. HSE inspector Jenny Skeldon said the firm had failed to learn from previous warnings from HSE at other sites within the Easco group. She added: “Had basic health and safety precautions been observed it is most unlikely that such a fatality would have occurred.”