New caselaw added

With a view to maintaining this site as an up to date legal resource for clients, and doubtless also our competitors, the Health and Safety caselaw page has been expanded. (See services – health and safety – caselaw). Not all the cases have links yet as not all cases are available from free sources. We hope you find this resource useful and any suggestions for cases omitted will be gratefully received.

Motivational Issues?

Still struggling to summon up the enthusiasm to proof read paragraph 3597.1 of your recently drafted commercial contract, even after 3 cups of coffee? Let the Red Russian Army Choir help you.. (ensure speaker volume on your PC is switched to max)

Further inspiration may also be found by musing on fate of those for whom the present no longer has a purpose. Before Glasnost these boys were managing re-education camps in the Gulag…comrades.

HM Advocate v Munro and Sons (Highland) Ltd [2009] HCJAC 10

This is a recent, unusual but significant sentencing appeal decision in the Scottish High Court. The brief facts of the case are as follows: a heavy wheeled loader was insecurely fastened to rear of  the defendants trailer. The two securing chains were insufficiently rated for the load and the parking brake of the loader was defective. On a sloping road the securing chains broke and the loader fell off the trailer onto a car behind, injuring on of the occupants and killing the other.

The tariff was fixed at £5,000 reduced by 25% to reflect the guilty plea to give a fine in the first instance of £3,750. HM Advocate (Crown) appealed on the basis that the fine was unduly lenient. The appeal was upheld in the High Court – there was a clear forseeable risk to public safety. A tariff of £40,000 was substituted a discount of 25% gave a final figure for the fine of £30,000.

The case reinforced the sentencing principles in Howe – as emphasised in Balfour Beatty – but most significantly considered the consultation paper on sentencing for Corporate Manslaughter issued by the sentencing advisory panel for the sentencing guidelines council in Nov 2007. The paper was published in anticipation of the coming into force of the of the Corporate Manslaughter and Corporate Homicide Act 2007 on 6th April 2008. These guidelines suggest that the starting point for a first offence of corporate manslaughter was a fine amounting to 5% of the offenders average annual turnover during the three years prior to sentencing. Taking into account aggravating and mitigating features the court should arrive at a fine between 2.5 and 10% average annual turnover.

Courts have struggled for some time to set an an appropriate tariff for sentencing in health and safety offence. That the court has seized on even draft sentencing guidelines  here to fill the gap is, I suggest, hugely significant, and gives a clear indication of the direction in which sentencing law is moving. It is also significant that the court has sought to reinforce the sentencing principles set down in Howe and Balfour Beatty.

The high court took the view that the financial information provided by the company was insufficient. Howe gives warnings about proceeding in the absence of inadequate information and defendants should be aware that Judges may now be more robust in adjourning cases where the financial information provided is deemed to be insufficient. The court laid too much emphasis on an operating loss, whilst failing to take account of the company’s net worth of around £347,000.

The average annual turnover of a company  is however very different to its operating profit, and the relationship between the two figures will vary widely between different businesses. I therefore forsee difficulties with assessing the fine on this basis. ESB previously clarified the position, and I can see the principles in that case being revisited.

(citations and links are available on the main Frisby website for cases in italics)

Bankers: the PR video

I know that bankers need to improve their image but…next week: lawyer gives CPR to labrador puppies.

First Corporate Manslaughter case

Cotswold Geotechnical Holdings has become the first company to be charged under the new Corporate Manslaughter and Corporate Homicide Act 2007, following the death of a junior geologist who was crushed to death in a pit whilst collecting soil samples. A director of the company was charged with gross negligence manslaughter and other health and safety offences.

The company is relatively small  so if the matter goes to trial we will only get a partial indication as to how the Act will operate where decision making is spread across large corporations.

Will there be more prosecutions? The prediction is this offence will become commonplace.

Midsize is the new big

Consultation on the admissibility of expert evidence

Tucked away in a corner of this months Archbold News is notification of a law commission consultation on the admissibility of expert evidence in criminal trials, the law on which the commission says is currently “unsatisfactory” something of an understatatement for the defendants whose convictions based on the evidence of Roy Meadows were quashed.

Given that juries often struggle to deal with expert evidence and therefore can be swayed simply by the charisma of one individual over another, the suggestion that the evidentiary reliability of expert evidence be considered before the jury is sworn can only be a good thing. I am less persuaded by the suggestion that the Judge could be assisted in assessing the evidence by a court appointed assessor i.e. expert, which seems to me to simply add yet another layer of subjectivity.  In many specialist fields there may be difficulty in finding a third comparable expert (assuming the prosecution and defence have got one each) and finding someone acceptable to both sides may be even more difficult.

Still it seems generally agreed that the law requires an overhaul. Have your input at www.lawcom.gov.uk/expert_evidence.htm.

The consultation closes on 25th May 2009 and responses to the consultation are invited up until 7th July 2009.

New look website

The IT gremlins here at Frisbylaw have been whittling away to bring you a new and improved site.  Our aim is to provide a one stop shop for basic health and safety leglislation and caselaw. We aspire to do the same thing for fraud, but since the caselaw is a little more extensive this may take a little longer.

In the meantime please have a play with our health and safety link (attached to health and safety on the servies tab). If you don’t like it tell us, if you like it tell others.

In house legal training

Back again, following a slight hiatus following a busy period with the firm. I’m feeling particularly smug following the success of the firm’s first in house training day. I can’t help thinking that in house training must be the way of the future, given the extortionate prices charged by most external providers, for mediocre courses at inconvenient locations. And if you prepare the courses yourself you get points for preparation, so double benefit.

It’s also a good excuse for barristers to take a day out and come and sell themselves to a friendly audience and get some points themselves. Better than the traditional approach of simply giving solicitors beer.

And who are the Beatles?

Two part-time Immigration Judges Jeremy Varcoe and Stuart Southgate are claiming unlawful dismissal for being put out to grass at the age of 70, when full time Immigration Judges are permitted to apply for a years extention to their tenure in the public interest.

The issue was whether a retirement age of 70 for judges could be justified as a “proportionate means of achieving a legitimate aim . . . not all workplaces are the same — certainly for the judiciary, experience is vital.”

Indeed. But so is an awareness of popular culture since the courts – especially the criminal courts – are disproprotionately full of the under 40’s.

The comment “and who are the Beatles?” widely attributed to a Judge in the 60’s is in fact the stuff of urban legend. But not so Mr. Justice Openshaw who said during the 5th week of a criminal trial

“The trouble is, I don’t understand the language. I don’t really understand what a website is.”

A statement from the Judicial Communications Office the next day was quick to explain his comment

“Mr Justice Openshaw was simply clarifying the evidence presented, in an easily understandable form for all those in court.” mmm

Ruthie thinks that this problem could easily be solved by making all Judges take a brief annual quiz to make sure they are still down with the kids.  She has devised an example:

JSB  – Popular Culture Examination

You have 5 minutes to answer the 5 questions below. You are not allowed to use the internet to research your answers.

1. The “internet” is:

a) A worldwide system of computer networks – a network of networks in which users at any one computer can, if they have permission, get information from any other computer

b) A humane rodenticide

c) A brand of Dolphin friendly tuna

2. What is Hip Hop?

a) A music genre typically consisting of a rhythmic vocal style called rap which is accompanied with backing beats.

b) A form of English country dancing

c) A sexually transmittted disease

3. “Facebook” is

a) A social networking site

b) A novel by Stephen Fry

c) A novel by Jane Austen

4. You are asked to “shake your booty”. Do you?

a) Wiggle your posterior?

b) Shake your feet e.g. the Hokey Cokey?

c) Hand over your wallet?

5.  Which of the following is a well known fashion label?

a) Dolce and Gabbana

b) Ede and Ravenscroft

c) Salt ‘n’ Shake

Answers:

Mostly  A’s – congratulations, you are truly surfing the tube of popular culture.Judicial office remains open to you for as long as you can still stand.

Mostly B’s – worrying. You are require to attend a number of designated nightclubs, and memorise the dictionary of Skateboarding Slang.

Mostly C’s. – You are restricted to adjudicting on the tea allocation and designated bedtime at the Tall Trees retirement home.

According to Age Concern:

“Increasingly, people want to carry on working.” A survey of workers in their 50s and 60s found nearly 80 per cent were against a mandatory retirement age and nearly 60 per cent wanted to work beyond the state pension age, either full or part-time.”

Curious since you would think that people would prefer to go fishing or sit on a beach.  Or could it simply be that as a consequence of the recent financial mismanagements no-one can afford to retire?