04 March 2014

Do prosecutions outside the UK affect sentencing in the courts of England and Wales?

The 2009 case of R v Bodycote HIP UK contains an important warning to multinational organisations in the UK in relation to the impact of health and safety prosecutions against their branches abroad.

Two of Bodycote’s employees working at the company’s Hereford manufacturing plant were found collapsed on the stairs leading to a concrete lined pit into which argon gas had leaked. The two employees subsequently died of asphyxiation. The investigation discovered that the ventilation systems for the pit were not operational and that the low oxygen level warning mechanisms had been disabled. The company was fined £533,000 and ordered to pay costs of £200,000, amounts it unsuccessfully sought to reduce on appeal.

Although a very tragic case for all concerned, the fact pattern is not in itself particularly noteworthy apart from a small but significant feature. The court considered, and gave substantial weight to, the fact that a similar incident had occurred a few years earlier which had led to the death of two employees at a HIP plant in California, USA. The court heard that the two Californian employees had died from asphyxiation as a result of inhaling argon and nitrogen gasses and concluded that the company had not adequately heeded the warnings from the failures in the Californian plant. This failure was considered by the court to amount to an aggravating factor in assessing the fine to be imposed on the company for the UK incident and this approach was approved by the Court of Appeal.

A number of organisations operating in the UK have branches in various countries abroad. In light of the Bodycote decision, weight will be placed by the English Courts on prior, similar convictions in other jurisdictions when assessing domestic incidents, this should be a cause for concern. Even if an organisation has an unblemished safety record in England and Wales, its global behaviour may be scrutinised and may act as an aggravating feature in subsequent domestic incidents. This is of particular relevance to organisations with branches in jurisdictions where corporate attitude to health and safety is not as highly developed as in the UK, since convictions in these jurisdictions may well come back to bite the company domestically where fines are typically higher and court attitudes tougher.

This case highlights how important it is for international organisations to ensure that their various global branches implement and actively manage health and safety policies across the board and do not take some jurisdictions more lightly than others in the belief that potential breaches of local safety laws in those jurisdictions would have a limited impact on their business. Similarly, the mere fact that an organisation has a clear safety record domestically is not the be all and end all, but will be a factor that is assessed alongside its international safety record.

Coordination and cooperation are the key words and organisations should at all times ensure that the relevant local teams responsible for health and safety are in constant communication and that any lessons that have been learned are fed through to the other branches in order to avoid replicating the same mistakes which lead to avoidable injury, loss of life and financial consequences.

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