Minutes of 163rd Edinburgh Branch Meeting, IOSH

 Craighouse Campus, Napier University, Edinburgh – Thursday 9 June 2005 - 130pm

SEDERUNT:                 A Dick              GB Dickson       G Millar             A Gregory         P Gallacher

G Shuman                     N Kelly              K Lloyd             M Grimmer        C Shiels            D Sinclair

C Lawson                      A James           B Morris            A Curran           R McLean         M Johnstone

M Bancroft                    L Young            K Shaw             A Reid              T Sayer            A Milne

J Burt                           J Davis             K Millar             J Hepburn         P Brown            A Diment

S Brown                        J Johnston        S Waddell         A White                        S Mambo          S Heeson

S Hunter                       R Thomson        J Brannigan      I Wilson                        A McLeod        

APOLOGIES:   Richard Lovering, Vic Stewart, Graeme Lyall, Steve Boucher, John McMahon, Dick Morrison, Janet Little, Steve Boucher.

1          Chair:  Marion Johnstone took the Chair, welcomed those present and outlined the safety arrangements.

2          Minutes of Previous meeting:  14 April 2005:  These were approved – proposed by Brian Morris and seconded by Alan Dick.  There were no matters arising.   Noted that the AGM Minutes (May) would go out for information but would be taken in 2006.

3          Correspondence

3.1 Events

•SiteSafe Scotland/HSE: Consultation Seminars on revising CDM: AIRDRIE: Thurs 16th June; INVERNESS  -  Friday 17th June

•RoSPA: Behavioural Safety User Conference: Behavioural Safety Excellence - Learning and Sharing: 16th June: Manchester

3.2       Information

•Construction Confederation: Breakdown of Work at Heights Regs – leaflet in PDF – email Secretary

•Free risk assessment software for an evaluation period: www.crsrisk.com

•IOSH will, in the next month or so, put a guide on the web which is a short update to the changes in ISO 14001.

•Branch Support for Dundee University Fire Safety DVD.  Part of the profits from the Nov 2003 Transport Seminar were being donated to Dundee University who were making a short fire safety DVD aimed at students.  This would be sent out to all Universities & FE Colleges in the UK.  Lorraine Kelly (Rector of Dundee Uni) would appear in the DVD and we would invite her to a special showing of it.

3.3       Job Spot

•Part time H & S Consultant: Glagow/Stirling area approx 10-15 hours per month & Perth/Dundee area approx 30/40 hours per month.  Iain M. Murray on 01828 670535 or 07944 837368

•Alfred McAlpine Capital Projects: SHE manager: Kevin.Davidson@alfredmcalpineplc.com

3.4       Membership

National: 28396   Branch:  813 of which Corporate: 384   TechSP: 125   Assoc: 176

Construction: 192   Public Services: 126             Environment: 111   Consultancy: 47

Offshore: 44            Education: 45          Healthcare:  37       Fire Risk Man: 25

4. Group Reports

•Branch Education Development Officer    – Liz Young

Liz gave details of a Fire Brigade Seminar for businesses on the new fire legislation taking place shortly.  Another one would be held if there was sufficient interest.  She would circulate details in due course.

•Specialist Groups

–PUBLIC SERVICES                – Marion Johnstone

Zurich Municipal Awards for Achievement in Health and Safety - the Deadline date for the Zurich Municipal Awards for Achievement in Health and Safety is 15 July 2005.

PSG National Safety Symposium

–CONSTRUCTION                     – Allan Dick – see details of presentation below.

–FIRE RISK MANAGEMENT – Dave Sinclair

NEBOSH National Certificate in Fire Risk Management: Back on track and we now have full support from NEBOSH. Revised syllabus will be discussed at next week’s FRMSG meeting and hopefully have something out for comment by late September.

Joint Retail / FRMSG Event - "Evacuation of less able-bodied customers in retail and leisure" received good feedback. Despite having about 118 registered only around 40 turned up. This was disappointing as the venue was moved to accommodate the numbers and we also change the programme to suit. Our administrators also had a wasted effort as they made up packs to meet these numbers. Copy of the presentations and précis of the event, including the break-out workshops, will be available soon on the FRMSG website.

IOSH Conference - The SG stands were far better positioned this year and I was certainly kept busy. I still think that better use of the main IOSH stand should be considered and I will push this via the SGMC.

NEXT FRMSG Networking Meetings:

Tuesday 14th June at Pilkington European Technical Centre, Ormskirk.

Tuesday 27th September in Edinburgh. Topic Forensic Fire Investigations.

–HEALTHCARE                        – Martin Scott-Smith. Nothing to report

–ENVIRONMENT                      – Julian Davies.  Julian reported that the SG website had been updated and was well worth a visit.  It linked into the IEMA website.  The SG had started to develop links with  Chartered Institute of Waste Managemet.

–OFFSHORE                – Tam Boyd.     Nothing to report

–CONSULTANCY                     – Derek Cawkwell: Nothing to report

–SAFETY SCIENCES   – Steve Boucher Nothing to report

–TELECOMMUNICATIONS        – Graeme Lyall    Nothing to report

–EDUCATION               - Chris Lawson Nothing to report

–Forth & Tay District: the Site visit to RAF Leuchars had been well attended (about 20 persons) and very interesting.

5. Members Items

•Membership – message from HQ – important not to let membership lapse – otherwise you would have to join under the new system with no possibility of carry-over from the old.

•Site Visit: Fri 17 June – 2pm: Glenkinchie Distillery.  Names to Andy Sharman including details of who needed transport.

•Assistance with writing report of guest speaker. Marion reminded members that the detailed reports that appeared in the minutes were the work of Richard Lovering (Past Chair).  On occasions that Richard wasn’t present we would like somebody else to undertake this. Julian Davis was doing it today.  Offers of help to the Secretary.

•Julian Davis reported his attendance at a debate on Corporate Killing in the Signet Library where Lawrence Waterman, IOSH President, had been one of the speakers.

•New CDM Regs Consultation – Allan Dick

Allan made a 10 minute presentation detailing how IOSH – through the Construction Group SG of which we was a member – were going to respond to the current HSC Consultation Document on combining the CDM Regs with the Construction Welfare Regs. Allan showed the main parties on whom duties were placed under the current CDM regs and detailed where failings had still occurred despite the intent of the Regs. 

The proposed new Regs had six broad areas: Pre-construction, Construction phase plan, client, designer, co-ordinator. 

During a special meeting of the Construction SG later in June each of these areas would be looked at in detail by one of the regional groupings of the SG.  The Scottish group would consider the Construction phase plan.  Later in the day each group would report back to a plenary session and from this an IOSH response would be made to the consultation.

Alan hoped that members would find useful this insight into how the SG operated and how IOSH participated in such national consultations.  He would report back at the October meeting on the outcome.

6. Guest Speaker

PROFESSOR KENNY MILLER, VICE-PRINCIPAL STRATHCLYDE UNIVERSITY

CORPORATE KILLING

Current Law

Crimes involve two elements – forbidden act plus guilty mind.

Common law crime involved in corporate killing is involuntary (non-intentional) manslaughter/culpable homicide.

In England established through breach of duty to deceased and gross negligence – an objective approach.

In Scotland death must arise through utter disregard of consequences of act for the public – requires a state of mind.

THUS in Scotland there must be a mental element for the crime – this was the outcome when judges were asked to review the law during the Transco case.

In England no direct mental requirement (test objective) but in Attorney General’s Ref (No 2) (Southall case) court stated proof of state of mind relevant to grossness and criminality of accused’s conduct.

Problem

How can a company which is a non-natural phenomenon and an abstraction possess the necessary mental state?

Solution

Achieved through the mechanism of identification.

Law identifies the individual(s) who is the embodiment of the company and is its “controlling and directing mind” – Tesco – this involved selling defective goods.

This is based on the notion that if the embodiment of the company has a ”guilty mind” so also has the company.

For conviction, therefore, individual must be prosecuted and convicted before company guilty of corporate killing – P & O Ferries; Bowbelle etc. – there was insufficient evidence that the controlling minds were negligent.

Note: Prosecution is based upon those who control the company not any notion of vicarious liability.  Cf Health & Safety at Work Act, ss.2 & 3 - Gateway Foodmarkets; British Steel; Great West Trains. 

Consequences

1. Difficulties identifying senior individual who has sufficient knowledge to have guilty mind – not possible to aggregate knowledge – Transco; GW Trains.

2. Delegation of duties may prevent identification of senior officer – “avoid responsibility avoid prosecution”.

3. Identification of individual does not deal with systems failures where fault lies with a number of different employees at different levels – P&O Ferries.

4. Identification does not deal with case where a number of different postholders and committees are involved over a period of time – Transco.

5. Overall complex nature of large companies makes prosecution difficult – Kite & OLL Ltd (“one man concern” running adventure activities including canoe trips).

Note:  Does fact that in English law, test is objective make a difference – NO (GW Trains).

Need for a new statutory offence

English Law Commission (Report and Draft Bill (1996)) supporting offence of Corporate Killing.

Two central ingredients

• Management failure by company
• Failure constitutes conduct falling far below what can reasonably be expected in the circumstances.

Note:  There is no need to establish guilt of senior officer.  Analogy is with common law duties owed to employees which are personal to employer.

Management Failure arises when way its activities are managed or organised fails to ensure health and safety of employees or others (notion of a safe system of work).

Conduct falling far below involves balancing likelihood of harm against social utility of activities and cost and practicality of taking steps to eliminate or reduce risk.

Note: Company can still be prosecuted even where immediate cause is an act or omission of another.

Key Recommendation that Company Officers not to be prosecuted as “secondary parties”.  (Not an offence to aid or abet (cf HSWA, s.37) but individuals can be prosecuted separately).

Penalties

• Prosecution on indictment with unlimited fines

• On application of prosecutor court has power to make remedial orders requiring company to take specified steps to remedy failure.

Relationship with HSWA

• Corporate killing based on personal liability of company

• Prosecutions under HSWA, ss.2 & 3 based on a form of vicarious liability.

Draft Bill made clear that company acquitted of corporate killing could be convicted of a breach of HSWA, ss.2 or 3.

Remaining Issues

• Law Commission recommended offence should not extend to unincorporated bodies (eg trade unions, trusts)
• What about Governmental bodies with Crown Immunity?

Home Office Consultation Paper (2000) provided an alternative definition based on “undertakings”.

What about company officers?

• Law Commission draft Bill specifically excluded them from corporate killing.

Home Office proposals

• Disqualification of directors from management role in any undertaking (based on contribution to management failure)
• Prosecution of director for separate offence of substantially contributing to corporate killing.

Legislative Activity

Scotland – None (though consultation document and legislation promised since the Transco case)

England – Home Office confirmed in May 2003 that “a draft Bill would be published soon”.

Nothing in Queen’s Speech in Nov 2003 but commitment made in 2004 Queen’s Speech.

Why the delay?

Scotland     No idea

England

• Concerns over whether the notion of “management failure” is the right approach.
• Government appeared to be going back on its proposal to also prosecute directors.

In March 2005 Home Office published Consultation Paper and Draft Bill on Corporate Manslaughter also a commitment in Queen’s Speech (May 2005) to introduce legislation.

Key Features of Bill

• Legislation will apply to corporations and Crown Bodies but not unincorporated bodies.
• Legislation is based on management failure without any need to identify offence by controlling mind
• So offence is based on way organisation’s activities are managed or organised by senior managers which causes death (senior management failure).
• “Senior manager” is a person who plays a significant role in decision-making or the actual management or organisation of the business.
• There must be a gross breach of a duty care owed to deceased.
• Gross breach constitutes conduct falling far below what can reasonably be expected of the organisation in the circumstances (reference to health and safety guidance – putting profit before H&S)

• Duty of care will be owed by corporation as

1. employer or occupier of land

2. when supplying goods or services

3. when engaged in other commercial activities

• Court will have power to impose unlimited fines and remedial orders
• No further common law prosecutions for corporate manslaughter
• Consultation expires on 17 June 2005.

7. Closing details

Dates of next meetings

Edinburgh Branch: 8 September: Identifying & Reducing the risk of MSDs & suggestions for rehabilitation: Margaret Hanson: HU-Tech.  Sighthill Campus (also for October Meeting)

Forth & Tay District:  1 September:  New Venue: Dewar Ice Rink, Perth

Max Bancroft, MRSC, MIOSH   Branch Secretary

Julian Davis, MIOSH New Members Secretary