The company were undertaking construction works to a site situated at 107-109 Hampstead Road London. During the works the company had put in place site perimeter edge protection around a light well that was yet to have metal railings fixed around it. In the early hours of the morning on the 19th October 2013, Mr Gavin Brewer and Mr Stuart Meads were in the area. They were captured on CCTV in the midst of an altercation when one of the men pushed the other, quite forcibly across the road and into the edge protection. This collapsed and both men fell into the light well, a distance of 3.7 metres and tragically died at the scene.
The company pleaded guilty to the two counts of Corporate Manslaughter and a breach of section 3(1) Health Safety at Work Act.
Within the CPS case there were two aspects which merit comment:
1.Profit before safety
In their case summary and sentencing note the prosecution advanced allegations that the company had undertaken cost cutting measures at the expense of safety. Put simply they argued that the company's failure to put in place Heras fencing and scaffolding within the light well, i.e. to reduce the risk of a fall amounted to "placing profit before safety".
The CPS was aware that the company had ample supplies of the fencing and appropriate boards for use as scaffold and the costs of undertaking those steps were negligible. The CPS would not be moved on this aspect during pre-hearing discussions. Even more surprising was the support gained from the HSE to advance the allegation despite a complete lack of evidence.
The matter was not one which required much in the form of argument from the defence team as HHJ Worsley refused to entertain this rather misconceived submission. He made it clear that the failure to safeguard against the risk was the very breach to which the company had pleaded guilty.
2. Financial Position of the Company
Having received the required financial company information, the CPS sought access to further accounts of all linked companies. Such requests were made on the basis that they would allow for an accurate assessment to be made of the company's financial status.
In fact the CPS has instructed Forensic Accountants to identify whether any assets of the company had been manipulated or transferred to other linked companies. The CPS pursued this line without demonstrating any basis for suspecting that such a state of affairs might exist.
The prosecution's own Forensic Accountants report demonstrated no such position. However during the hearing HHJ Worsley expressly asked the CPS to confirm the reliability of the accounts in this respect. If that is an indication of what is to come, then companies will need to be aware that this level of scrutiny irrespective of any proper basis will be pursued.
HHJ Worsley QC accepted that the risk of injury from falling into an improperly guarded and covered light well was highly foreseeable. The steps that ought to have been taken by the company to safeguard against the risk were straightforward and the failure resulted in the death of two individuals. This was a category A offence.
The company were a micro organisation with a turnover of much less than £2 million. In relation to mitigating features HHJ addressed the lack of previous prosecution against the company, a good safety record and the remedial steps taken after the accident.
Regrettably the Judge gave no explanation as to how he approached the credit that should be awarded to the defendant company for entering guilty pleas and simply applied a reduction of £50,000 for each charge of corporate manslaughter.
The prosecution had approached the sentencing exercise on the basis that one needed to look separately at both offences and fine for each. The Judge however took the view that he need only concentrate on the more serious offence and then adjust the fine to take into account the lesser offence which had been charged.
Fine and Publicity Order
In conclusion the company was fined as follows:-
Count 1 Corporate Manslaughter - £250,000
Count 2 Corporate Manslaughter - £250,000
Count 3 Section 3(1) Health and Safety at Work Act 1974 - £50,000
Fines were to be paid in two years. Costs were additionally awarded in the sum of £23,000 payable in six months
Notwithstanding the press coverage this case had already received, the Judge imposed a publicity order which is a feature that will become more common in such cases. Rather as an oversight no date for compliance was given for the same.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.