Introduction

Nearly all criminal prosecutions are brought against employers. However, there are some cases where an OH professional may be prosecuted under health and safety legislation, or for manslaughter. This will be very exceptional in practice.

Health and safety legislation

Under s.7 Health and Safety at Work etc Act 1974 (HSW Act), an employee while at work must take reasonable care for himself and for other persons who may be affected by his acts and omissions.

Also under s.36 HSW Act, if an offence committed by an employer (for example) is due to the act or default of some other person, the other person is guilty of an offence.

R v Lockwood (2001), Crown Court (Stafford)
An incompetent occupational hygienist was held guilty of an offence because he negligently advised the employer that the level of airborne wood dust in a factory was within the statutory limits, when it exceeded them. He was fined £1000 and ordered to pay £2000 costs.

Lockwood was a prosecution under s.36. S.7 would not apply here as he was an independent consultant, not an employee. Also HSE did not prosecute the employer in this case as it had reasonably relied on the consultant’s advice.

R v Hooper (2004)
A negligent health and safety consultant was fined £3000 plus £750 costs for carrying out an inadequate risk assessment of a woodworking machine. This had led to an employee losing part of a finger. The employer was also prosecuted and fined.

The main punishment would probably not be the fine itself but having a criminal record under the HSW Act.

Manslaughter

This can apply where gross negligence of the doctor or nurse causes a death. However an OH practitioner is not very much at risk of a manslaughter prosecution. The negligence must go beyond being a matter of compensation and have shown such disregard for the life and safety of others as amount to a crime against the State and conduct deserving punishment.

R v Adomako, House of Lords, 1994 www.bailii.org/uk/cases/UKHL/1994/6.html
An anaesthetist assisting at an eye operation failed to notice the disconnection for six minutes of the tube from the ventilator supplying oxygen. The patient suffered a cardiac arrest and died. Expert witnesses described the conduct of the defendant as abysmal. The House of Lords held that he had been rightly convicted of manslaughter.

R v Wacker, Court of Appeal, 2002 www.bailii.org/ew/cases/EWCA/Crim/2002/1944.html
A lorry driver had killed 58 illegal immigrants whom he was smuggling into the UK. Wacker closed the single ventilation hole from the back of his lorry, where they were hiding, thus causing them to suffocate. The defence that the victims were themselves acting illegally was held not to excuse his conduct. He was rightly convicted of manslaughter.

Corporate manslaughter is different. Despite wide-spread misconceptions to the contrary, an individual cannot be prosecuted for corporate manslaughter, It only applies to companies and certain other types of body. Corporate manslaughter is an offence created by statute, the Corporate Manslaughter and Corporate Homicide Act 2007, whereas manslaughter is a common law offence developed by the courts.

 

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