Fifth Corporate Manslaughter Prosecution in Progress

The manager of a coalmine in south Wales where four men died after it flooded has been charged with gross negligence manslaughter, the Crown Prosecution Service has announced. This is the fifth prosecution to be brought under the Corporate Manslaughter and Corporate Homicide Act 2007 since the legislation was introduced and the manager of the mine, Malcolm Fyfield, is also facing charges on four counts of gross-negligence manslaughter.

To read more click here: http://www.nfps.info/_blog/NFPS_Blog/post/Fifth_Corporate_Manslaughter_Prosecution_in_Progress/

Fourth Prosecution Under the Corporate Manslaughter and Corporate Homicide Act 2007

A company in Norfolk has become the subject of the fourth prosecution under the Corporate Manslaughter and Corporate Homicide Act 2007 since the implementation of the legislation in April 2008. The organisation – specialising in horticultural supply – has been charged with corporate manslaughter following the death of a worker at its Belmont Nursery site in July 2010.

To read more go to: http://www.nfps.info/_blog/NFPS_Blog/post/Fourth_Prosecution_under_the_Corporate_Manslaughter_and_Corporate_Homicide_Act_2007/

How To Manage a Prolonged Restraint and Reduce The Risk of a Serious Injury or Death

Prolonged restraint and prolonged struggling is a factor during restraint that can increase the risk of death, yet there are still restraints that go on for many hours, yet managers in many public and private sector companies either fail to, or refuse to, consider the use of restraint equipment that could help reduce the time that restraint goes on for. This could leave them open to charges of Corporate Manslaughter and even for breaches of Human Rights Legislation. To find out why, watch the short video below by clicking on the picture or the link below the picture.

http://www.nfps.info/_blog/NFPS_Blog/post/How_To_Manage_a_Prolonged_Restraint_and_How_To_Reduce_The_Risk_of_a_Serious_Injury_or_Death/

Serious Case Review Recommends Banning T-Supine Restraint

The recent Serious Case review into Winterbourne View has recommended that the use of the T-Supine Restraint Position should be banned.

To watch a short video on the issue click on the picture above or go to: http://www.nfps.info/_blog/NFPS_Blog

Italian Experts Convicted of Manslaughter in Connection with Earthquake Predictions and False Assurances in the Use of Force Community

Italian Experts Convicted of Manslaughter in Connection with Earthquake Predictions and False Assurances in the Use of Force Community

Seven expert members of the Italian National Commission for the Forecast and Prevention of Major Risks have been convicted of manslaughter in Italy in relation to a devastating earthquake which struck the city of L’Aquila in 2009. The disaster killed over 300 people, injured over 1000 and left tens of thousands homeless. The court in L’Aquila found the experts guilty of multiple manslaughter and sentenced them each to six years in prison.

The defendants – consisting of six scientists and an ex-governmental official – were prosecuted for giving false assurances to the public before the earthquake struck. It was stated that the public had relied upon this information, which was ‘inaccurate, incomplete, and contradictory’ and were reassured to remain in the city. Had they not been given this reassurance, many of those in the city may have evacuated the area, keeping them safely away from the impact of the incident.

In the months leading up to the disaster several hundred small tremors had hit the area, causing concern regarding the likelihood of a major impact. A meeting was held by the Commission in L’Aquila and following the meeting a statement was made at a press conference by one of the defendants stating that the situation was believed to be ‘normal’ and it was even ‘favourable’ that energy was being released in this way through the tremors. It was asserted by the prosecution at trial that the defendants were liable as a result of this statement for failing to properly communicate the risks.

The outcome of the prosecution saw Judge Marco Billi convict each of the experts of manslaughter in the Italian regional court – sentencing them to a six year prison sentence, barring them from ever holding a future public office, and ordering them to pay costs and damages to the value of €7.8m (£6.4m). The sentences were at a higher level than the 4 year prison sentences that were sought by the prosecution.

So what has that got to do with us?

Well how many times do training providers, and even the management of some companies, give ‘false assurances’ when teaching or allowing staff to be taught techniques that are highly like to fail in high pressure situations.

Also, how many agencies are still teaching techniques that we all know increase the risk of death and even some that have been banned because of it? Techniques like the prone position, supine and even the seated double-embrace that killed people like Gareth Myatt and Jimmy Mubenga to name only two.

How many staff are being taught inadequate skills that will not work insinuations of high emotional stress?

How many door supervisors are still being allowed to work single-person doors and are being trained to restrain on their own?

And, to top it all, how many Government inspectors are so ill advised that they think that some private companies are some kind of National Governing Body promoting a Nationally recognises standard?

Only last weekend at a conference I heard a qualified nurse tell me that she has been told that she is not allowed to restrain a patient as the company has a no restraint policy!

Maybe the case will set an international precedent for Corporate Manslaughter cases here in the UK where training providers and companies alike could be held to account where a death occurs for allowing less than adequate training to be delivered, by less than competent training providers who promote less than competent legal advice and guidance to those faced with the risk of having to control and restrain those who present violent and challenging behaviour.

The law is moving on people and we either embrace it and keep up with it or become victims of it.

Next Advanced Restraint Instructors Course is March 2013 and we have already started taking bookings. To find out more click here.

Lord Ramsbottom, G4S and The Church’s Liability for Perverted Priests

Lord Ramsbotham, a former chief inspector of prisons has condemned the decision not to bring charges against three G4S guards over the death of a detainee as “perverse”, insisting a senior coroner should now oversee an inquest.

Speaking during a House of Lords debate on Thursday the 19th July, the crossbencher Lord Ramsbotham, called on ministers to ensure public funds would be available for an inquest into the death of Jimmy Mubenga, who died after being restrained by the guards on a British Airways flight. Ramsbotham’s comments are particularly relevant as he is also chairing an independent inquiry into the use of restraint.

On Tuesday, the Crown Prosecution Service announced it would not bring any charges against the guards, in part, it said, because it could not rule out that the death was caused by “a combination of factors such as adrenaline, muscle exhaustion or isometric exercise”.

Ramsbotham said: “I have to say that in the face of all the evidence that we have gathered during our inquiry, quite apart from all the other evidence that was available, I find that CPS decision, at kindest, perverse”.

“Passengers reported hearing Mr Mubenga cry out that he could not breathe and that the guards were killing him. There had been Home Office warnings to G4S in 2006 about the dangers of using [restraint techniques that might lead to] positional asphyxia.”

The peer said there were parallels to be drawn with another case in which G4S staff restrained a person in their custody who died.

“There had been stringent criticisms by the coroner in the case of Gareth Myatt, a 15-year-old who died in Rainsbrook secure training centre following the use of similar procedures for restraint by G4S guards,” he said. “He, too, had called out that he could not breathe before he died.”

Ramsbotham added: “As an inquest is the only public forum in which this death can now be scrutinised, I ask the minister to confirm that this will be conducted as soon as possible by an experienced coroner, and that public funding will be made available to ensure full support for Mubenga’s family.”

Frances Webber (Vice-chair, Institute of Race Relations and former Barrister)

Frances Webber (Vice-chair, Institute of Race Relations and former barrister) stated in the Guardian Newspaper on the 18th July that ‘the prosecutor says that “given Mubenga’s physiological condition” he cannot rule out that factors such as “adrenaline, muscle exhaustion or isometric exercise” might have helped cause his death because he was in an “agitated state” before he died. The general application of this extraordinary reasoning would mean that no murderer whose victim struggled could be charged, because of the adrenaline, muscle exhaustion and isometric exercise involved in resisting attack. And even if (as is implied) Mubenga was somehow uniquely vulnerable because of a pre-existing condition, every rookie lawyer learns the “eggshell skull” doctrine, which states that an assailant bears legal responsibility for a death even if his victim has a pre-existing condition making for extra vulnerability.’

Church Liable for the Negligent Acts of a Priest

In a recent landmark decision (JEG v  The Trustees of the Portsmouth Roman Catholic Diocesan [2012] EWCA Civ 938) the Court of Appeal has now confirmed that the church can be held liable for the negligent acts of a priest it has appointed. Permission to appeal to the Supreme Court has been refused.

This appeal was another preliminary stage in the main action between the claimant’s action for damages following the alleged sexual abuse and assault by a parish priest (now deceased), and the trustees of the diocesan where he served. The Court of Appeal has now confirmed that the defendants can be held to account, even though there was no formal employment relationship between Father Baldwin and the Diocesan.

The claimant argued that the defendants should be held liable for the wrongdoing of the priest because at the time they  “operated and/or managed and/or were responsible for” the church where he served. The defendants were said to have entrusted the safe keeping and care of the claimant to Father Baldwin.  It was also alleged that the sexual abuse and assaults perpetrated by the priest were committed in the course of or were closely connected with his employment and therefore that the defendants were vicariously liable for the injury and damage which the claimant suffered.

The trustees argued that they were not in control in the sense that neither they nor the incumbent bishop had any power to remove Father Baldwin from the priesthood or his office other than in accordance with the process set out in the Code of Canon Law (which requires proof of a grave cause under canon law).  So they denied that Father Baldwin was in their service: he was at all times following his vocation and calling as a priest.

In court the issue of vicarious liability was set out in two stages, the first being the relationship between the employer and the employee and the second being whether the act was within the scope of the employment. In all the other cases involving claims of sexual abuse by priests the church has only challenged its responsibility for the actions of its priests on the basis that the acts were outside the scope of the “employment” of the priest.

This case is one of  the first in which the first stage of vicarious liability has been challenged, namely whether the relationship between the priest and the church is such that the principle of vicarious liability may attach if the tortious acts of the priest were within the scope of the relationship. The judge in this case accepted that a priest was not an employee, but that vicarious liability could be founded on a relationship other than employment.

He therefore concluded that the relationship was akin to employment because of the close connection between the tortfeasor and the person against whom liability was sought.

Are G4S Liable for the Acts of the Staff?

In the G4S case the staff said that they were using the system that had bee approved for use by Government, yet it was not entirely fit for purpose.

In February 2011 four G4S whistleblowers submitted evidence to the home affairs select committee stating the company had been warned repeatedly by its own staff that potentially lethal force was being used during removals.

They also said that G4S managers were repeatedly being told that refused asylum seekers who became disruptive on flights were being “forced into submission” with their heads placed between their legs – and lets face it, anyone who knows anything about physical restraint and positional asphyxia must know that such a position is dangerous. It was even highlighted in a BBC News report on the 27th July 2011 which you can read here >>> http://www.bbc.co.uk/news/uk-14301245

So, for the meanwhile it looks like the Jimmy Mubenga case is not over for G4S, and in light of the third Corporate Manslaughter Conviction and the recent Court of Appeal landmark decision (JEG v  The Trustees of the Portsmouth Roman Catholic Diocesan [2012] EWCA Civ 938)l there could be more to follow.

Surely it’s easier just to the right thing in the first place?

Third Company Convicted of Corporate Manslaughter

A third company has been convicted of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007.

Lion Steel Limited, of Hyde, Cheshire, admitted the charge in relation to the death of 45-year-old employee Steven Berry, who suffered fatal injuries when he fell through a fragile roof panel at the firm’s site on Johnson Brook Road in May 2008. The company now faces an unlimited fine and a possible remedial order when it returns for sentence at the court on 19 July 2012.

A further charge against Lion Steel of failing to ensure the safety of employees, as required under Section 2 of the Health and Safety at Work Act, will lie on file.

Since the legislation came into effect, Cotswold Geotechnical Holdings Ltd and JMW Farms Ltd have also been convicted, receiving fines of £385,000 and £187,500 respectively. Various discussions have also taken place about the fine being commensurate with the ability to pay with the Court of Appeal introducing the concept that, in some cases, putting a company out of business may be inevitable if they have committed a serious enough breach.

In Cotswold’s case they entered voluntary liquidation shortly after judgement was laid down. Sentencing guidelines published provide that fines for corporate manslaughter should rarely be less than £500,000. It has been argued that full application of the legislation is yet to be tested on a large corporate entity with complex management structures.

The case of Lion Steel Limited will be of particular interest going forward as, of the three companies convicted to date, Lion Steel is the largest.

Sentencing is due to take place on 19 July 2012. It will be of interest to see what level of fine is imposed in relation to guidance and company size.

Under this piece of legislation companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.

Other interesting links: http://www.nfps.info/news-1/corporate-manslaughter-hsg48-and-physical-restraint and http://www.nfps.info/news-1/50-corporate-manslaughter-cases-pending

Jimmy Mubenga’s Widow Talks About Life Without Jimmy

Jimmy Mubenga, 46, died while being restrained by private security contractors while being deported to Angola. On the first anniversary of his death, his widow Makenda Kambana candidly talked about life without Jimmy. To see the video >>>click here

In another manslaughter case three Warwickshire fire service managers have been accused of four counts of Gross Negligence Manslaughter, after four firefighters died in a warehouse blaze in 2007. It was reported in the press last week that three firefighters who died were sent into an “obviously dangerous situation” for no good reason, a jury has heard. After explaining to the jury that command of the incident passed between the fire service managers, the prosecution barrister, Richard Matthews QC, said that the blaze “had not been properly assessed” by those in command, and it should have been apparent that sending in firefighters with inadequate resources was unnecessarily dangerous”. He went on to say: “It’s the prosecution’s case that each of these defendants so badly failed to fulfil their duties to the firefighters under their command that their actions amount to what lawyers call gross negligence.”

In short, the three managers are being accused of Gross Negligence Manslaughter for failing in their duty of care to their staff by sending them into an “obviously dangerous situation” with “inadequate resources” that“had not been properly assessed” by those in command. To read the article in the Guardian >>> click here.

But This Happens Every Day in Restraint Situations!

As you read this just bear in mind that all over the UK, right now, some staff are being sent into restraint situations without the right resources or less than adequate training, and in some cases without any training at all. And this creates an absolute direct liability for the company and its management.

And all of this also has real and direct implications for those of us who are looking to become Physical Restraint / Physical Intervention Trainers, which is why our Advanced Award training is so popular. When you become a trainer with us by attending our BTEC Level 3 Advanced Award in Physical Restraint Instruction, you will receive in-depth and legally accurate training that will explain the legal situation to you fully.

If you are a manager of an organistaion that uses physical restraint / physical intervention then it would be worth your while sending your trainers on this course.

If you are a trainer who is likely to be relied upon for advice and responsible for training others then it would most certainly be worthwhile attending this course.

For more info, go to: http://www.nfps.info/NFPS-BTEC-Level-3-Restraint-and-Breakaway-Instructors-Course.

Police and other authorities can now be prosecuted over deaths in custody in England, Scotland and Wales

Legislation which has now come into effect means police forces, the MoD, UK Border Agency and private firms managing people held in custody can be prosecuted for corporate manslaughter.

The main legislation came into force three years ago but ministers gave public bodies which hold people in detention until now to prepare for it.

The extension of these offences to public bodies involved in detention means they could be prosecuted if they failed to ensure the safety of someone in their care.

Examples could include deaths during an immigration removal or when someone has been restrained using an unauthorised or badly taught body hold.

To read more go to: http://www.nfps.info/_webapp_294919/Police_can_now_be_prosecuted_under_Corporate_Manslaughter