A recent case before the Supreme Court has caused some rather unexpected ripples.
The details of the case are not important, but it was about how Coroners handled verdicts of suicide. The Supreme Court held that in cases where a verdict of suicide is reached, the burden of proof now only has to be “on the balance of probability” that the victim intended to take their own life. This is known as the civil level of proof, rather than the criminal level of “beyond reasonable doubt”.
So far so good, and this would appear to have very little to do with health & safety law. But the Chief Coroner, apparently wanting clarity on a similar verdict, on lawful killing, asked for it to be considered at the same time by the Supreme Court. Both verdicts are known as short form conclusions.
It is also rumoured that the Chief Coroner asked for this to be done so that Courts did not subsequently decide that both Short Form verdicts should be treated the same. In other words, the Supreme Court would make a distinction and retain the higher level of burden of proof for unlawful killing.
Be careful what you ask for. The Court, on a majority verdict of 3-2, so hardly convincing, has decided that the civil level of proof should apply to unlawful killings as well. This now has a significant effect on employers.
Until now, obtaining a verdict of unlawful killing needed a very high burden of proof. And without that verdict, it was unlikely that the Crown Prosecution Service would pursue any employer after an accidental death at work for corporate manslaughter or gross negligence. By making such outcomes more likely, it raises the prospect of far more prosecutions in these circumstances.
This has caused considerable debate in legal circles. Some have questioned the original decision, many have questioned the decision to include unlawful killing and suicide in the same verdict, and others have pondered on the long-term effect of this change in the law.
What most seem to agree on, however, is that interested parties (families on one side and employers on the other) in Coroners’ decisions will almost certainly take a much more active interest. Families aggrieved that any employee has potentially been unlawfully killed will seek to intervene much more in the Coroner’s investigation. Employers will seek to protect themselves far more, with all of the subsequent legal costs and possible media interest that such cases attract.
And long-term, we can expect an increase in prosecutions in this area. A reminder that corporate manslaughter can be extremely serious for an organisation if it is proved. Courts have the ability to levy unlimited fines and custodial sentences for responsible persons. In employment sectors where life threatening industrial accidents are more likely to happen, responsible employers are already taking enormous interest in their employees’ health and safety.
But with the extension of the law, and the lowering of the burden of proof, we are certain that more employers in other employment sectors will be caught in this net sooner or later.
This is yet another reason to take health and safety very seriously. If you are unfortunate enough to have a fatal incident at the workplace it can have profound legal implications for the organisation. Not to mention a very negative impact on employee morale and your own ability to sleep well at night.
Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.