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Archive for June, 2012

Cuba

The following aspects of legal practice in Cuba have been reported:

  • After the revolution, the prestige of lawyers declined and many left the country. Fidel Castro advised young Cubans to study medicine, science and engineering rather than law. This resulted in a dramatic decline in the number of lawyers, who were disparaged as corrupt and useless vestiges of the capitalist class.
  • Independent legal practice is not permitted.
  • Lawyers work in Bufetes Colectivos. These are collective law offices. They were established by the Ministry of Justice following the abolition of the private practice of law. Bufetos Colectivos are controlled by the National Organization of Bufetos Colectivos (ONBC). This body is responsible for professional conduct and ethics.
  • In 2009 there were estimated to be 2000 lawyers in practice in 250 bufetos. They are reported to have large caseloads and to work in difficult conditions.
  • Lawyers are expected to uphold the principles of socialist legality.
  • Cuban law reflects the country’s history. Influences on Cuban law include Spanish Codes, American law and Soviet bloc principles.


Recent Health and Safety Prosecutions June 2012

Severed hand: £100,000 fine

Health and Safety Executive v Lisec (UK and Ireland) Ltd (2012) Teesside Crown Court, May 29

Lisec (UK and Ireland) Ltd, a glass manufacturing compnay, has been fined following an incident in which a worker suffered a severed hand.

Significant points of the case

  • In September 2007 a maintenance technician, who wishes to remain anonymous, was working at Solaglass (Architectural) Ltd’s site in Bishop Auckland.
  • He was investigating a fault on a new tilt table. The table was part of a glass cutting line manufactured and installed by Lisec in May 2007.
  • The worker was on his hands and knees, trying to find out the casue of the fault. He had activated the emergency stop.
  • A large laminated glass sheet measuring six metres by three metres, weighing almost one tonne, was suspended above his right wrist. The worker had his right arm extended with a mirror in his hand so that he could check the status of a sensor which related to the release of the glass onto the table.
  • A colleague moved past another sensor on the tilt table. The sheet of glass was released. It fell onto the worker’s wrist and severed his hand.
  • There were faults within the programme which controlled the movement of the glass. It allowed the glass sheet to be released, even when an emergency stop had been activated. This fault was exacerbated by the installation of the new tilt table and the failure to integrate it properly with the existing equipment.

Lisec was fined £100,000 plus £150,000 costs under section 6, HSW Act. This states, in summary, that it shall be the duty of any person who erects or installs any article for use at work in any premises where that article is to be used by person at work to esnure, so far as is reasonably practicable, that nothing about the way in which the article is erected or installed makes it unsafe or a risk to health at all times when it is being set, used, cleaned or maintained by a person at work.

Dangerous machinery: serious injuries: £10,000 fine

Health and Safety Executive v Mil Tu Fit Engineering Ltd (2012) Bristol magistartes’ court, June 11.

Mil Tu Fit Engineering Ltd, a machining company, has been fined following an incident in which an employee suffered serious injuries from a dangerous machine.

Significant points of the case

  • In August 2011 Ian Spicer, an employee of Mil Tu Fit, was working at the company’s premises in Brislington, Bristol.
  • He was operating a Computer Numerically Controlled (CNC) lathe machine. The company had two CNC lathes on site. One was intended for machining short parts, and the other, with a bar feed attachment and guide, for machining longer parts. The second machine was in use. Spicer was told to use the lathe without the bar feed attachment to machine bars which were approximately 2.5 metres long.
  • Spicer was told to place a barrier of empty drums at the end of the machine, to fence off the rotating bar from passers-by. As the machine was operated, the bar became unsatble and bent under its own weight. It struck Spicer, throwing him to the ground and knocking him unconscious.
  • He suffered a compressed skull fracture which left skull fragments resting on his brain. He also suffered lacerations to his chest, a dislodged breast plate, fractured wrist and smaller wounds.

Mil Tu Fit was fined £10,000 plus £3600 costs for a breach of Regulation 11, Provision and Use of Work Equipment Regulations 1998 (PUWER).

An HSE spokesperson is reported to have commented after the case that the barriers had offered no protection for the machine’s operator and did notr support the bar which was spinning at extremely high speeds. If the company had used appropriate equipment which was available on site, the incident could have been avoided and Spicer would not have suffered terrible injuries.

Regulation 11 of PUWER states, in summary, that every employer shall ensure that measures are taken which are effective to prevent access to any dangerous part of machinery, or to stop the movement of any dangerous part of machinery.


Human Rights

Human Rights Act 1998

The Human Rights Act 1998 incorporated the provisions of the European Convention on Human Rights into UK law in the face of strong opposition. For example, Lord Denning voiced the widely-held view that we should not be bound by the decisions of judges who do not know our way of life, nor anything of our common law.

The main rights covered by the Act are as follows:

  • Article 2: Right to life
  • Article 3: Prohibition of ill treatment
  • Article 4: Prohibition of slavery and forced labour
  • Article 5: Right to liberty and security
  • Article 6: Right to a fair trial
  • Article 7: No punishment without law
  • Article 8: Right to respect for private and family life
  • Article 9: Freedom of thought, conscience and religion
  • Article 10: Freedom of expression
  • Article 11: Freedom of assembly and association
  • Article 12: Right to marry
  • Article 14: Prohibition of discrimination. This leads to the impenetrable maze of UK discrimination law, the opaqueness of which is fully analysed in Chapter 3 (Mystery).
  • Article 1, Protocol 1: Protection of property.

These principles have been developed by a large mass of case law in the European and UK courts. Human rights law has become a huge subject in its own right. Its scheme of a basic statutory framework, developed by case law to become a sprawling and incomprehensible mass, is indistinguishable in concept from, for example, tax law.

The clarity and simplicity of the European Convention on Human Rights is now submerged in a lawyer-created mesh of endless interpretation and sophisticated analysis. Major human rights textbooks are large, expensive and highly technical. They are indistinguishable in style and layout from other technical law textbooks.

Individual and collective human rights

For an ex-miner in Blaenau Gwent, suffering from a terminal lung disease, who develops a raging toothache, and cannot afford dentistry, it is of great solace to know that a Queen’s Counsel in chambers in Lincoln’s Inn has worked night and day to ensure that he has freedom of religion.

When my own father was dying, and no ambulance could be found to take him from hospital to a hospice, so that I had to pay a private ambulance to travel fifty miles, it was most reassuring for me to know that it was unlawful for me to be discriminated against on the grounds of my ethnic origins and that this right would be protected by a coterie of London QCs.

The rights protected by the Act of 1998 are generally recognised as civil and political rights, largely aimed at the protection of individuals. Social and economic rights are not covered. There is, for example, no right to work and no right to healthy and safe working conditions.

While the current trend towards the protection of human rights in relation to, for example, freedom of speech and the right to a fair trial, is without doubt desirable, progressive and moving towards human emancipation and social justice, these are essentially individual civil and political rights. They do not address social and economic issues. It is, for example, of little comfort to those living in the most deprived circumstances that liberal lawyers from London are willing to earn huge sums to protect their right to freedom of religion.

The human rights industry in England is rarely criticised from the left. It is normally selected for abuse by populist politicians and journalists. But this does not mean that it is beyond criticism. It should be realised that there is a substantial body of academic opinion, particularly in developing countries, which is highly critical of the Western emphasis on individual civil and political rights.

This has been described as the little magic territory of human rights which is just civil and political. It has also been pointed out that before people get to political rights they want to know what to do about Aids and what to do about food and water.

In 1986 Tony Gifford made the following points:

  • The most profound injustices in our society stem from political and economic, rather than legal causes.
  • Legal rights can do little to enrich the lives of those who have no jobs.
  • If no money is spent on building new homes, then the theoretical rights of homeless people and slum dwellers are not of great value.
  • If the opportunity for a good education and good health is a perquisite for the wealthy, then the idea of equality before the law becomes a fraud.

Lord Bingham has pointed out that there is no universal consensus as to fundamental rights and freedoms. In some developing countries, a higher premium is put on economic growth than on the protection of human rights.

Contents of current English textbooks on human rights

An examination of current English human rights textbooks gives some indication of the coverage of individual as opposed to collective rights in the main source material. English law does not deal with collective human rights.

Social and economic rights are mentioned only in passing, for example:

  • Clayton & Tomlinson, The Law Of Human Rights: The list of contents has one reference to social and economic rights, which is a chapter on the right to education. The subject index has three entries for economic rights and three for social rights. A total of 4 pages out of 1600.
  • Starmer, European Human Rights Law: 15 pages on the right to education. 10 pages on welfare benefits. No index references to economic and/or social rights.
  • Simor and Emmerson, Human Rights Practice: 3 index entries on economic rights.
  • Feldman, Civil Liberties and Human Rights in England and Wales: 11 pages out of 1100 on social and economic rights.


Corporate Manslaughter

Second conviction since 2008

JMW Farms Limited, a Northern Irish farming company, has been fined following its conviction for corporate manslaughter.

In November 2012 Robert Wilson, an employee of JMW aged 45, was killed when working on the company’s site at Tynan, County Armagh. He was washing the inside of a large metal bin. It fell onto him from a forklift truck, causing fatal injuries.

The bin had not been secured or integrated with the truck. The truck was a replacement for the normal truck, which was being serviced.The liftng forks were too large and incorrectly spaced to be inserted into the bin’s sleeves.

JMW had carried out a risk assessment, including instructions for workers operating the truck. It would have been apparent to any operator that it would not be possible to take the necessary steps to secure against foreseeable dangers.

The Recorder of Belfast is reported to have made the following comments:

  • Yet again the court was faced with an incident where common sense would have shown that a simple, reasonable and effective solution would have been available to prevent this tragedy.
  • The very definition of the offence of corporate manslaughter was an acceptance of a gross breach of duty. That is, a high and totally unacceptable breach in circumstances where the risks were high, with the more than foreseeable likelihood of serious injury or death following if the proper steps were not taken.
  • This was a serious matter which required a substantial fine to be imposed to reflect the the culpability of the company, and also to send a message to all employers that their duty to their employees is daily and constant and any failure to discharge that duty will be met with condign punishment.
  • It was clearly foreseeable that the failure to address the hazard would lead to serious injury and indeed that the consequences could well be fatal.
  • The company had fallen far short of the standard expected in relation to such an operation.
  • The operation was permitted to continue for some time. However, there was no evidence that this represented a systematic departure from good practice across the company’s operations.
  • The directors of a company are fully responsible for the discharge of the duty of care to their employees. In this case a director was in control of the forklift and therefore culpability went to the very top of the company.
  • There was no evidence of a failure to heed warnings or advice, cost cutting at the expense of safety, or a deliberate failure to obtain or comply with relevant licences.
  • The company’s directors had accepted their responsibilities by the guilty plea, and the company had a good safety record.
  • No penalty imposed by the court could begin to be seen as a measure of the life of the deceased. The penalty reflected the factors in the case and also the principle that where a defendant pleads guilty, the court should reduce the sentence to reflect not just the fact that no trial has to be held (with all the trauma which this can cause particularly those close to the deceased), but also as evidence of the remorse of the defendant for their actions. The amount of reduction will also reflect the strength of the case against a defendant. the stronger the case, the less the reduction.
  • In 2011 JMW made £1.4 million profits and declared dividends of £200,000. This was an indication of a healthy, well-capitalised company in a good cash position.The appropriate fine would have been £250,000 but this would be reduced to £187,500 because the company had pleaded guilty. Costs of £13,000 would be awarded aginst the company.

This was the first time that the courts in Northern Ireland sentenced a compnay for corporate manslaughter. The Recorder therefore set out guidance for the courts to follow until the Court of Appeal had an opportunity to provide authoritative guidance. The Recorder based his sentencing on the guidelines issued by the Sentencing Council in England and Wales in relation to breaches of health and safety legislation resulting in a fatality, including corporate manslaughter. The Guidelines set out the appropriate levels of fine to be imposed, as follows:

  • The offence of corporate manslaughter, because it requires gross breach at a senior level, will ordinarily involve a level of seriousness significantly greater than a health and safety offence. The appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds.
  • The range of seriousness involved in health and safety offences is greater than for corporate manslaughter. Where the offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.
  • The plea of guilty should be recognised by the appropriate reduction.

Reaction to the case included the following:

The acting deputy chief executive of the Health and Safety Executive for Northern Ireland is reported to have commented that the judgment sent a clear message to directors in Northern Ireland, whether of a small or a large organisation, that they should take health and safety seriously.

The new corporate manslaughter legislation clarified the criminal liabilities of companies where serious failures in the management of health and safety resulted in a fatality. He would therefore urge anyone with a managerial or supervisory role to ensure that proper management and control systems were in place to prevent another needless death from occurring.

A spokesperson from the Police Service of Northern Ireland stated that the prosecution should send a clear message that there is no hiding place for anyone that breaks the law. Robert Wilson lost his life as a result of this incident and it was hoped that the conviction was a stark reminder that legislation was there for a reason.

A solicitor is reported to have commented that all eyes would now be on the second prosecution in England which was due to be heard in June 2012 where Lion Steel Equipment Ltd are charged with corporate manslaughter and three individual directors face charges of gross negligence manslaughter. the Attorney General recently commented that there are in the region of 50 cases under referral to the Special Crime and Counter Terrorism Division where corporate manslaughter is one of the offences under consideration. The message to UK business is to be on guard to avoid being in a similar predicament to JMW Farms.

In the four years since the Corporate Manslaughter and Corporate Homicide Act was passed, there has only been one other prosecution – that of Cotswold Geotechnical in 2011.

In contrast, the Health and Safety Executive has reported that there were 171 workplace deaths in 2010/2011. None of these resulted in charges of corporate manslaughter – most were dealt with under specific provisions of the Health and Safety at Work, etc., Act 1974.

A recent example is the 2012 case of Matthew Peter Williams, a director of Acryflor Ltd, a construction company, who was fined following an incident in which a worker suffered fatal injuries.

Paul Gibbons, a self-employed contractor, was carrying out re-roofing work for Acryflor on an industrial building in Penryn, Cornwall. He fell eight metres through a fragile asbestos cement roof. He suffered fatal injuries.

The work had not been adequately planned and no safety nets or crash deck platforms had been provided to mitigate the effects of a fall.

The company should have employed a planning co-ordinator to develop a construction plan for the work and the project should have been overseen by someone with with appropriate knowledge and experience.

Matthew Williams was fined £2500 plus £2500 costs under section 37 of the 1974 Act. He was £1.5 million in debt and his annual income was £15,000.

Section 37 of the 1974 Act states in summary that where an offence is committed by a company, with consent, connivance or neglect on the part of a director, the director is also guilty of the offence. It is not known why the offence of corporate manslaughter was not used in this case.


Legal Aid and Charity

Charity

 

No society can legitimately call itself civilised if a sick person is denied medical aid because of lack of means.

Aneurin Bevan 1947.

The Labour government which came to power in 1945 was committed to replace charitable good works in essential public services with state-provided welfare. Aneurin Bevan, who created the National Health Service, was passionately opposed to the patronising reliance upon private charity for the treatment of the sick. Bevan was involved in the formation of the Tredegar Medical Aid Society. This is fully discussed in Michael Foot’s biography of Bevan. The Society has been described as the forerunner of the National Health Service. It involved workers clubbing together and paying small regular sums into a fund for the payment of doctors and hospital services. Foot points out that the Society partly achieved the aim of making the cost of sickness a communal burden, thus lifting the worst shadow which fell across working-class homes.

The creation of the legal aid and advice scheme was part of the same reforms. The scheme is now in tatters. The huge gaps left by the withdrawal of the state from legal help for the poor are, it appears, to be filled by the adoption of conditional fee agreements, private charity, the whim of the rich, benevolent lawyers and detailed regulations issued by insurance companies.