CONSTRUCTION DEATHS
Donaghy Report published
On 8 July 2009, the DWP published the report of Rita Donaghy’s inquiry into the underlying causes of construction fatal accidents.
Following a wide-ranging review of the existing regulatory structure, the report makes 28 recommendations, which the government will now consider. Chief amongst these is the recommendation that there should be positive duties on directors to ensure health and safety, a matter which is already under consideration by the HSE board and others.
The DWP will be consulting HSE, Trade Unions and industry bodies before responding later in the year.
To read the report in full, follow the link:
http://www.dwp.gov.uk/publications/policy-publications/fatal-accidents-inquiry.shtml
COMPASS CHAMBERS PRESENT H&S SEMINAR IN NEWCASTLE
In conjunction with Crown Office Chambers, Peter Gray QC and Barry Smith, of the Compass Chambers Regulatory Team are presenting a seminar: “Corporate and Directors Criminal Liability – The New Landscape” at St James’ Park in Newcastle on 24 September. Limited places are still available. Follow the link for full details:
http://www.compasschambers.com/news.asp
FIRST DEATH BY CARELESS DRIVING CASES SENTENCED
At Dumfries Sheriff Court, on 15 September Malcolm Bell was sentenced for a breach of section 2B of the Road Traffic Act 1988. Mr Bell avoided custody, instead being ordered to perform 200 hours Community Service.
http://www.compasschambers.com/news.asp
Meanwhile, at Glasgow Sheriff Court, on the following day Lillian Kenny was sentenced to nine months’ imprisonment for causing death by careless driving whilst unlicensed and uninsured.
Off-shore safety
The recent KP3 review published by HSE’s Off-shore Division in July and recently released figures for fatalities, major injury rate and hydrocarbon releases – the lowest since HSE started regulating the industry – suggest good progress in off-shore safety.
http://www.hse.gov.uk/offshore/statistics.htm
Compass Regulatory Members:
Peter Gray QC
Andrew Smith QC
Mark Stewart QC
Gary Allan QC
Jamie Gilchrist QC
David Sheldon
Barry Divers
Steve Love
Susan Duff
Graeme Middleton
Amber Galbraith
Barry Smith
Yvonne Waugh
Compass Clerking Contacts:
Irene Mackenzie
Michelle Williamson
Grace MacRae
To view previous
Bulletins:
January 2009
February 2009
April 2009
June 2009
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PROCEEDS OF CRIME
New rules for confiscation procedings
From the 5th of August 2009, the procedure for dealing with proceeds of crime confiscation proceedings in the High Court has changed. Or perhaps more correctly, with the coming into force of the Act of Adjournal (Criminal Procedure Rules Amendment No 3) (Confiscation Proceedings) 2009, for the first time, there now exists a procedure for dealing with such cases.
This Act of Adjournal arises directly from work carried out by a committee chaired by Lady Dorrian (of which Compass Chambers’ Barry Divers was a member). Lady Dorrian was asked by the Lord Justice Clerk to look into problems being experienced in the processing and management of proceeds of crime confiscation proceedings. One of the main difficulties identified was the lack of any specific procedural rules as to how such cases should be processed. What would happen is that upon an accused’s conviction for appropriate offence, there would be service upon him of a statement by the prosecutor. This document would allege a figure that would be said to constitute an accused’s benefit from crime and then list assets said to be his property. Cases would then be continued from one hearing, or notional diets as they grew to be called, to the next until eventually the matter resolved, or a proof was fixed.
The new procedure now provides a clear structure that must be followed in all cases in the High Court. The main changes are as follows:
• The statement by the prosecutor will be served in the usual way. There will then be a hearing, to be called the first procedural hearing, on the first Monday after the period of 12 weeks from that date.
• From the service of the statement the defence will have six weeks to lodge answers, or a response as it is termed. Both parties will then have a period of six weeks to adjust their respective positions.
• This first procedural hearing shall be an opportunity for the Court to ascertain the readiness of the parties to conduct an evidential hearing. In carrying out this function, the Court may; make orders for the production of documents; allow for a period of further adjustment; or make any further order it considers necessary. The Court can then either allow a second procedural hearing to take place or fix a proof, or determination hearing, as it is referred to in the Act of Adjournal.
• At a second procedural hearing, the Court shall again seek to ascertain the state of readiness of the parties to conduct a determination hearing and again it may make such further orders as it thinks are required to reach a stage where the parties are so ready. This second hearing may be continued, but not longer then a period of four weeks.
• When a determination hearing is fixed, the Clerk of Court shall be tasked with issuing a timetable. This timetable shall specify the following; the date when a pre-determination hearing meeting must take place between the parties, this must be at least eight weeks before the determination hearing; the date when a minute of this meeting must be lodged, this must be at least five weeks before the determination hearing; the last date for lodging witness and productions. There will also be fixed at this time a pre-determination hearing which must take place on the on the last Monday at least four weeks before the full determination hearing.
• At the pre-determination hearing meeting, the parties must complete and then lodge with the Court a minute in the form specified by the Act of Adjournal. This minute requires of the parties the answers to such questions as, what evidence can be the subject of agreement? What matters are actually still in dispute? What witnesses and productions will be required etc?
• That completed minute will then be the subject of consideration by the Court at the pre-determination hearing.
• If necessary the determination hearing will then take place.
In the level of judicial management, which is provided for, and the focused dialogue, which is made mandatory between parties, it can be seen that the procedure borrows heavily from the principles found at the heart of the successful Chapter 43 procedure in personal injury cases in the Court of Session and the preliminary hearing system in the High Court.
It must be hoped that this reform meets with the same level of success.
AHMED ( MOHAMMED) v HM ADVOCATE
This recent Appeal Court decision establishes that there is no need for the Crown to lead evidence of where, “dirty money” comes from to prove a charge of money laundering and underlines the requirement on those working in the regulated sector, to make a disclosure to the responsible authority on their having a suspicion of a client being engaged in this activity.
An employee of a company engaged in money transfers abroad, appealed against his convictions for: (i) a contravention of s330 of the Proceeds of Crime Act 2002, (having had reasonable grounds to suspect that a client was engaged in money laundering but failing to disclose); and (ii) having possession of criminal property and transferring criminal property out of Scotland.
In refusing the appeal, the Appeal Court held that, in a money laundering case, there was no need to prove that the money derived from a particular offence. Further, notwithstanding the fact that the client of the firm was acquitted of money laundering, it was plain that the obligation under s330 could arise if a person merely suspected that money laundering was taking place, even if none was in fact later found to be proved.
http://www.scotcourts.gov.uk/opinions/2009HCJAC60.html
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Compass Chambers