Health & Safety across borders
Northern Ireland, Ireland and Great
Britain
NISG
Laura Gillespie, Partner
18 August 2014
Content
• Major legislative frameworks
• Police investigation
• Courts and their approach
• Hints and tips
Major legislative frameworks
Northern Ireland
Great Britain
Republic of Ireland
Health & Safety at Work
(Northern Ireland) Order 1978
Health & Safety at Work etc.
Act 1974
Safety, Health and Welfare at
Work Act 2005
Duty of every employer to
ensure, so far as is reasonably
practicable, the health, safety and
welfare at work of all his
employees
Duty of every employer to ensure,
so far as is reasonably practicable,
the health, safety and welfare at
work of all his employees
Duty of every employer to ensure,
so far as is reasonably practicable,
the safety, health and welfare at
work of his or her employees
Director liability – consent,
connivance or did not exercise
reasonable diligence
Director liability – consent,
connivance or neglect
Director liability – consent,
connivance or neglect
Maximum penalty – up to 2
years imprisonment and unlimited
fine
Maximum penalty – up to 2 years
imprisonment and unlimited fine
Maximum penalty – up to 2 years
imprisonment and a fine not
exceeding €3million
Enforcing body – HSENI/Local
Councils
Enforcing body – HSE/Local
Councils
Enforcing body – HSA
Key health & safety issues
Northern Ireland
Great Britain
Republic of Ireland
FFI does not apply
FFI does apply
FFI does not apply
RIDDOR report for injuries
with more than 3 days
incapacitation
RIDDOR report to be made
with more than 7 days
incapacitation
RIDDOR report for injuries with
more than 3 days incapacitation
Construction (Design &
Management) Regulations
(Northern Ireland) 2007
Construction (Design &
Management) Regulations
2007
Safety, Health and Welfare at
Work (Construction) Regulations
2013 (includes domestic projects)
Control of Asbestos
Regulations (Northern
Ireland) 2007
Control of Asbestos
Regulations 2012
Safety, Health & Welfare at Work
(Exposure to Asbestos)
Regulations 2006 & 2010
15 successful prosecutions
in 2013 with fines totalling
£431,750
597 prosecutions in 2013
with 95% success with fines
totalling £2.1 million
28 successful prosecutions in
2013 with fines totalling €2.1
million
Corporate Manslaughter
Northern Ireland
Great Britain
Republic of Ireland
Corporate Homicide and
Corporate Manslaughter
Act 2007
Corporate Homicide and
Corporate Manslaughter
Act 2007 (Corporate
Homicide in Scotland)
PROPOSED Corporate
Manslaughter Bill 2013
Unlimited fine
Unlimited fine
Unlimited fine
No NI specific sentencing
guidelines
Sentencing guidelines for
England & Wales
N/A
No personal liability
No personal liability
Personal liability – High
Managerial Agent – Grossly
negligent management
causing death – Up to 12
years imprisonment
No ability to trace to new
company
No ability to trace to new
company
Court may disregard legal
personality
Police investigation
Northern Ireland
England & Wales
Scotland
Republic of
Ireland
Arrest – PACE Code of
Practice – Reasonable
grounds for necessary arrest
Arrest – PACE Code of
Practice – Reasonable
grounds for necessary
arrest
Arrest – must be followed
by charge
Arrest – no PACE codes–
Reasonable cause to
suspect an arrestable
offence has been
committed and you are
guilty
Detention – Can be detained
for up to 96 hours (with
consent of magistrate)
Detention – Can be
detained for up to 96
hours (with consent of
magistrate)
Detention – Can be
detained for up to 24
hours
Detention – Varies for
offence but usually 24
hours
Interview under caution –
adverse inference can be
drawn from silence
Interview under caution –
adverse inference can be
drawn from silence
Interview under caution –
no adverse inference
can be drawn from silence
Interview under caution –
adverse inference can be
drawn from silence
Right to legal advice when
interviewed under caution
Right to legal advice
when interviewed under
caution
Right to legal advice
when interviewed under
caution
Right to legal advice
when interviewed under
caution
Approach of Court in Northern Ireland
• HSENI approach
• R v JMW FARM LIMITED [2012] NICC 17
– Guilty plea
– Profits amounted to £1,379,737; dividends of
£200,000 – FINED £187,500 - £200,000 reduced by
25% to reflect guilty plea
Approach of Court in Northern Ireland
• R v J MURRAY & SON LTD [2013] NICC 15
– Guilty plea
– “the danger was so obvious and so serious that the man
who principally operated the machine himself could not
conceivably have been unaware of its dangers” – “[Mr.
Murray] was well aware of the danger that had been
created by removing the top panels and deliberately turned
a blind eye to it.”
– Company unable to trade profitably
– £100,000 fine (reduced by 1/3)
Approach of Court in Northern Ireland
• R v COLERAINE BOROUGH COUNCIL 2013 NICC 17
– Guilty plea
– Fine should be £150,000; public spending cuts relevant – total
fine £75,000
– Guidance available
– “In an age where such information including safety guidance is
provided online it would be desirable firstly, for the authorities to
red flag such advice… equally, it is inexplicable and
unforgiveable that this clear guidance was not noticed,
particularly as the Council had a dedicated safety officer whose
sole responsibility was dealing with safety in relation to sites
operated by the Council.”
Approach of Court in Great Britain
• HSE – Prosecutions arising from non-fatal accidents
• Baxheath Ltd – August 2014
– No satisfactory assessment for asbestos
– Personal involvement of directors
– Fine of £12,000 plus costs
Approach of Court in Great Britain
• Cavendish Masonary Limited – 22 May 2014
– Jury trial leading to conviction on corporate
manslaughter but had pleaded guilty to H&S offence
– Sentencing awaited
• MNS Mining Limited – 19 June 2014
– Contested charge
– Second acquittal
Approach of Court in Ireland
• Nolan Transport – 25 February 2013
– Fined €1m for breach of 2005 Act
– Two members of the public were fatally injured when
their car was struck by a load of metal coils being
transported by the company
• BIS Willich Industrial Services Ltd and AB Access Ltd –
2 July 2014
– Fined €100,000 and €25,000
– Worker fell through fragile roof and was fatally injured
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