Gerard Forlin QC Barrister

The Lofstedt Report—Response by Gerard Forlin, Barbour EHS January 2012

Gerard Forlin's responses to the Lofstedt Report are below:

This proposes to exempt approximately half a million self-employed people [in so called low risk occupations] from the Health and Safety legislation.

At first blush, this would appear to be a sensible idea but does not appear to take into account various potential difficulties, such as self-employed people working occasionally for employed personnel and, for instance, potential risks in an office scenario. In my view, this recommendation will require some further consultation.

That the HSE will review all of its approved codes of practice so that businesses have certainty and that the initial phase of the Review will be applied by June 2012.

Although this is laudable, given the financial constraints put on the HSE and the recent round of announcements of redundancies, this deadline may seem to be extremely ambitious, if not impossible.

That the HSE undertake a programme of sector-specific consultations to be completed by April 2015.

This would appear to me to be an excellent idea and the time period allowed is a realistic one. One possible issue may be where sectors cross over more than one area.

That legislation is changed to give [the] HSE authority to direct all Local Authority Health and Safety inspection and enforcement activity in order to ensure that it is consistent and targeted towards the most risky workplaces.

I foresee problems in this recommendation, given the already over-stretched HSE, together with the fact that for many years Local Authorities have built up a relatively high level of local knowledge. Further, I note the recent comments of Sir Merrick Cockell, Chairman of the Local Government Association, who recently stated that “although he was looking forward to working closely with the HSE to develop an approach which delivered national priorities in a consistent way”, he also added “that in light of the invaluable accountability, transparency and flexibility of local understanding that the work of Councils must be maintained.” Further, this will mean that with the advent of HSE imposing charges for their work, more people would have to pay these if the enforcement work was taken away from the Local Authorities. In some businesses this may be a problem especially given the recent economic constraints and environment.

That the proposed changes to regulatory provisions that impose strict liability be reviewed by June 2013.

Although this seems to be an eminently sensible idea, given the enormous recent changes in corporate governance I envisage that it will be extremely difficult to unravel all this by June 2013. In my view this attempt to streamline matters, may very well end up creating more legal uncertainty, especially in light of the recent cases of Porter, Chargot and Veolia have reached a degree of legal certainty. This project could destabilise this position and create more future legal uncertainty.

In terms of the further recommendations in this report, these seem to be a good and thought through series of recommendations which should be welcomed by business generally.

In conclusion, there are some good ideas but the number one priority must be that the UK retains its position as being one of the safest places in the world in which to work. History tells us that removing the rules and regulations should only be done when we know why they were put there in the first place.

We will all wait in anticipation and should do our best to assist in any consultation process so that we can assure that this Review is as successful as possible. This is a duty for us all.

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National and International Developments in health and safety, Corporate Livewire January 2012

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Developments in UK Health and Safety law, Corporate INTL September 2011

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International Trends in Health & Safety and Corporate Manslaughter, CPDcast August 2011

This podcast is aimed at practitioners interested in international trends in Health & Safety and Corporate Manslaughter prosecutions. It will consider the position within the United Kingdom, significant statutory changes, the relevance of some recent cases and international developments.

Developments in health and safety, Archbold Review August 2011

This article covers three main areas; recent statutory developments, case law developments, and international developments.

This article appears in Archbold Review published by Thomson Reuters

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New Act allows individuals to be imprisoned for Health and Safety offences in UK, Corporate INTL June 2011

Following the first suspended custodial sentence for breach of section 7 of the Health & Safety (Offences) Act 2008, and the Court of Appeal decision in R v Bodycote HIP, Gerard investigates the willingness of the Courts to take into account conduct in other international jurisdictions.

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WINS-RUSI-Serco Nuclear Security Roundtable, May 2011

Gerard Forlin QC was consulted and spoke at the WINS-RUSI-Serco Nuclear Security Roundtable on lessons learnt from the recent 'Fukushima Daiichi' incident in Japan.

The one-day roundtable for the World Institute for Nuclear Security considered:

• Integrating nuclear safety, security and emergency arrangements
• Common assessment of risk and shared security liability
• Improved corporate governance
• Peer review and sharing best practices to build confidence
• Education and training to build capacity

The WINS paper, setting out priorities for nuclear security can be found on their website.

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Health and Safety Law Report - International trends, Global Business Magazine, April 2011

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High fines anticipated for corporate manslaughter, Counsel Magazine, March 2011

Come in number 43, New Law Journal, 4 March 2011

Gerard Forlin QC & Louise Smail assess the impact of Rule 43.

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Death knell for companies?, New Law Journal, 25 February 2011, Vol 161, Issue 7454

Cases that changed our lives, LexisNexis, 8 September 2010

Gerard Forlin is a contributor to this collection of essays examining interesting aspects of key cases that have shaped the legal landscape.

The book sets out the facts of each case and examines its impact, with emphasis on the human angle of the story, including:

• Who were the people involved?
• What was actually decided in the case?
• What happened later and how what was decided on the facts changed our lives?
• What were the later implications for that area of law and/or other areas of law?
• What legacy has the case left?

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Publicity Threat Looms, New Law Journal, 26 February 2010

Following the Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 2) Order 2010 (SI 2010/276) Publicity Orders can now be handed to firms and public bodies where gross corporate health and safety failures have caused a person’s death.

Gerard comments that the provisions will have a bigger impact on small and localised organisations not already ‘caught’ by coverage in the national press.

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Corporate Liability: Work Related Deaths and Criminal Prosecutions, (2nd edition)

General Editor: Gerard Forlin
Editor: Louise Smail, Ortalan

"Like its predecessor it contains valuable material and commentary presented in an accessible way. It will continue to be a valuable resource for practitioners." Mr Justice Burnett

The Corporate Manslaughter and Corporate Homicide Act 2007, has created a new offence of corporate manslaughter. This new edition of Corporate Liability: Work Related Deaths and Criminal Prosecutions is the only book to provide, in a single source, an expert guide to general procedure and practice surrounding this topic.

The 2nd edition covers crucial recent high profile cases and contains invaluable new commentary on international and European perspectives as well as new chapters covering Local Authorities, Scotland and Ireland.

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"More Directors will be caught up in investigations", Rail Technology Magazine, 2008

Child's play; 'Risk' after R v Porter NLJ 27 August 2008

Gerard Forlin recently wrote an article in collaboration with Patrick Harrington QC, published in the New Law Journal, covering the recent judgment in R v Porter [2008] EWCA Crim 1271 and the extension to the legal test of “risk” under the Health and Safety at Work etc Act 1974. Both had recently acted successfully in the appeal overturning the conviction of James Porter for a breach of his duty under s. 3(1) of the Health and Safety at Work Act 1974.

 

Unlawful killing cases set to increase 30 June 2008

Gerard Forlin has contributed to an article in the New Law Journal predicting a rise in the number of corporate manslaughter cases as a result of the Corporate Manslaughter and Corporate Homicide Act 2007.

He is quoted as saying: “I don’t think anybody knows how many prosecutions there are going to be under the new Act. I think what is clear is that because the law is easier to prosecute under than the old law, there are likely to be more investigations, but whether there are more prosecutions is a different matter.”

 

The Corporate Manslaughter and Corporate Homicide Act 2007, Archbold News, February 2008

Corporate Manslaughter and Corporate Homicide Act 2007; "same same or new new", The Barrister, 11 January 2008

Corporate manslaughter; the new rules, Solicitors Journal, 9 November 2007

Ten years of wrangling have failed to settle the corporate manslaughter debate 06 September 2007

Gerard Forlin’s recent article for the New Law Journal on the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) argues that British organisations need to be more on their guard than ever before. The article considers the Act’s proposals and potential reach when it is finally brought into force by secondary legislation on 6 April 2008.

 

Worth the wait?, New Law Journal, 17 August 2007

A Guide to Health and Safety Prosecutions 08 June 2007

We are very pleased to announce the publication this week of this new textbook. It was written by;

M. Appleby, Solicitor, Fisher Scoggins LLP
Gerry Forlin, Barrister, 2-3 Gray's Inn Square

It is published by Thomas Telford Ltd, price £35.

 

Corporate punishment, New Law Journal (156 NLJ 1789) , 24 November 2006

Eye to the Telescope, Freight Transport, November 2006

Sentencing Corporations, Archbold News, 2 November 2006

Death at work, Solicitors Journal, 28 July 2006

Fines to rocket despite Hatfield Reduction, New Law Journal, 14 July 2006

A softly softly approach, New Law Journal (156 NLJ 907), June 2006

Making a killing, New Law Journal (156 NLJ 363), March 2006

Corporate Manslaughter, Solicitors Journal, January 2006

Corporate Manslaughter Bill: a new dawn?, Archbold News, June 2005

Corporate manslaughter: where are we now?, New Law Journal (155 NLJ 720) May 2005

Contributor to Tolley's Handbook of Disaster and Emergency Management: Principles & Practice, LexisNexis 2005 (2nd Edition)

Reaction to the draft Corporate Manslaughter Bill, Solicitors Journal 2005

Contributor to Licensed Premises: Law & Practice, Tottel 2005

Bringing Companies to Account, CD-Rom, November 2004

Bringing Companies to Account CPD for lawyers, CD-Rom, September 2004

Corporate Killing - Will Directors Ever Be Held to Account?, Medico-Legal Journal (MLJ 71 (159)), January 2004