2 Hare Court Criminal Regulatory Group Newsletter
Welcome to the latest edition of the 2 Hare Court Criminal Regulatory Newsletter
Welcome to the autumn edition of the 2 Hare Court Criminal Regulatory newsletter. Highlights include: a review by Kate Blackwell QC and Nikita McNeill of the recent High Court case of R v Morahan  which provides important clarification as to when the Article 2 duty arises at inquest when the death of an individual occurs in the care of the state. Alexandra Tampakopoulos considers the proposed Building Safety Bill which seeks to overhaul the current regulations and introduce a new regulatory regime in the wake of The Grenfell Tower fire. Iain Daniels analyses and evaluates the significant amendments proposed by the Building Safety Bill in respect of the Regulatory Reform (Fire Safety) Order 2005. David Whittaker QC and Sophia Dower look at the most recent HSE guidance in relation to the ongoing Covid-19 pandemic and the primary obligation placed upon employers. And finally, Gavin Irwin unpacks the HSE’s annually published statistics relating to work injuries and ill-health and identifies developing trends in the area.
We do hope you find this edition both informative and interesting and welcome suggestions for future editions.
R v Morahan  EWHC 1603 (Admin) – Article 2 in Inquests: Revisited, Restated and Clearly Explained
The case of Rabone v Penine Care NHS Foundation Trust  2 AC 72 was significant in extending the state’s duties under Article 2 to voluntary mental health patients where they are sufficiently vulnerable, there is a real and immediate risk of suicide of which the hospital or trust were aware and where there is an assumption of control. In practical terms, it also extended the duty to hold a Middleton inquest following the death of patients meeting those criteria. Since Rabone, Coroner’s Court have seen a significant rise in Article 2 arguments following the death of those under psychiatric services, including both voluntary in-patients and those in the community.
The High Court in Morahan has now provided important clarification around where the Article 2 duty may arise, not only for voluntary psychiatric patients but also for any individual in the care of the state. The 46 page judgement from Popplewell LJ, Garnham J and HHJ Teague QC, Chief Coroner of England and Wales, gives a comprehensive examination of all of the key authorities on the application of Article 2 in inquests.
The High Court in Morahan has also tackled the difficult case of R (Letts) v The Lord Chancellor  EWHC 402 (Admin), which has formed the basis of many a fall-back submission that the Article 2 investigative duty is engaged automatically, regardless of whether or not there is an arguable breach of the substantive duty. The High Court has put an end to that submission, restating that the investigative duty is parasitic upon an arguable breach of the substantive duty.
At the time of her death Tanya Morahan was a voluntary in-patient in a psychiatric rehabilitation unit with a history of mental illness and substance misuse.
On 30 June 2018, Ms Morahan left her unit for authorised leave but failed to return at the expected time. She returned 3 days later, at which time her drug screening was negative. Ms Morahan left the unit, again on approved leave, on 3 July 2018. Again, she did not return at the expected time. She was found dead at her home address on 9 July 2018….
The Building Safety Bill: A Sea Change
On 5th July, following a three year scrutiny and public consultation process, the Government introduced a revised draft of the Building Safety Bill into the House of Commons. The Bill represents a wholescale reform of the building safety regime, in line with the recommendations of Dame Judith Hackitt’s 2018 Independent Review ‘Building a Safer Future’ which followed in the wake of the Grenfell Tower fire. The published aim of the Bill is an ambitious one, namely to “overhaul regulations, creating lasting generational change, setting out a clear pathway on how residential buildings should be constructed, maintained and made safe”.
Part 2 of the Bill introduces a new regulatory regime directed at ensuring the safety of residents in residential buildings. Specifically, the Bill establishes a new national Building Safety Regulator which will be within the Health and Safety Executive and report to the Secretary of State. The Regulator will be responsible for developing and implementing the new regulatory regime and will have three functions:
- Overseeing the safety and performance system for all buildings, including advising Ministers on changes to building regulations, identifying emerging risks in the built environment and managing the performance of building control bodies and inspectors;
- Assisting and encouraging the improvement of competence in the built environment industry amongst building control professionals, and improving building standards; and;
- Leading implementation of the new, more stringent regulatory regime for higher risk buildings including powers to order remedial works and stop non-compliant works on higher risk buildings. The Regulator may also appoint special measures for failing projects and order the replacement of key Dutyholders and fire safety officers.
Under the Bill “higher risk buildings” are defined as buildings (in England) that are at least 18 metres in height or have at least seven storeys and contain at least two residential units. The Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations, published in draft with the Bill, provide that care homes and hospitals will be higher-risk buildings but….
The Building Safety Bill and Fire Safety
The tragedy of the Grenfell fire has had wide ranging effects and one of those is the introduction of the Building Safety Bill into Parliament on 30 June this year. The Bill, which was drafted following Dame Judith Hackitt’s Independent Review, is intended to provide a, “strengthened regulatory regime for high-rise residential and other in-scope buildings, improving accountability, risk-management, and assurance.” Amongst other important measures, which include appointing the HSE as overall regulator with respect to building safety, the Bill makes bespoke but important amendments to the Regulatory Reform (Fire Safety) Order 2005 (“FSO”).
One of the central features of the FSO is the concept of a ‘Responsible Person’ usually the owner, employer or occupier of the premises who is responsible for ensuring and maintaining correct fire safety and procedures; any building can and in many cases will have more than one Responsible Person. Ultimately, the Responsible Person can be prosecuted in respect of any breaches of the FSO and any expansion of their role will need to be carefully considered. In this regard, the Bill extends the obligations on the Responsible Person in a number of ways:
- The risk assessment regime is strengthened by requiring the recording of the full fire risk assessments and not merely their significant findings as is the case now;
- There will be a positive duty to ensure that any fire safety professional appointed to assist in the production of the risk assessment is competent;
- Fire safety arrangements following the fire risk assessment will need to be set out in writing whatever the size of the organisation; the FSO currently only requires this where the organisation employs five or more employees;
- Fire safety information will be required to be provided to residents. Such information will include, information about any risks to them identified within the fire risk assessment, preventative and protective measures, the name and UK address of the Responsible Person(s) and the identity of any person appointed by the Responsible Person to assist them;
- As there may be more than one Responsible Person in respect to a particular building, they will be required to coordinate and cooperate to ensure the compliance with the FSO. This will involve an obligation to identify whether any other Responsible Person exists; in respect of high-risk buildings, i.e. those over 18 metres in height, this this will include the identification of and cooperation with the ‘Accountable Person’ as defined by the Bill. The duty will extend to sharing information with successive Responsible Persons to ensure the best possible information on previously identified risks and fire safety measures put in place….
The Health and Safety Executive, Workplace Safety and our Return to the “Old” Normal
The Covid-19 pandemic has impacted nearly every aspect of our daily lives. We have all become accustomed to the “new normal”, including the use of face-masks, practicing social distancing and endless flows of hand-sanitiser. The workplace, and how we operate within it, has had to adapt quickly to ensure that sufficient measures are in place to ensure safe working for all. This has not been an easy task given the seismic change in working patterns throughout the pandemic.
On 19 July 2021, England moved to Step 4 of the UK government’s roadmap which involved the removal of most Covid-19 restrictions. The current transition from the “new normal” back to the “old normal” is unlikely to be plain sailing for both employers and employees as each will have their own views about what measures remain necessary to ensure safety at work.
On 31 August 2021, the Health and Safety Executive (“HSE”) published guidance on the changes related to working safely during the pandemic following the lifting of coronavirus restrictions. In addition, it provided further details of advice from public health bodies and other government departments on requirements that are not enforced by HSE.
The guidance draws a distinction between:
- Controls to use after most restrictions are removed and
- Advice from public health bodies and other government departments.
The former falls under the remit of HSE enforcement, however the latter does not.
Controls to use after most restrictions are removed:
The guidance states that employers and businesses must still control the risks and review and update their risk assessment, with the following workplace controls remaining unchanged:
- Adequate ventilation
- Sufficient cleaning
- Good hand hygiene
Employers and businesses must continue to consult their workforce on health and safety matters by talking to works and their representatives to help reduce risk….
Work Injuries and Ill-Health: Notable Statistics and Trends
The Health and Safety Executive (‘HSE’) annually publishes statistics relating to work related injuries and ill-health related to work. By comparison with other jurisdictions, the HSE notes that the UK:
“… consistently has one of the lowest standardised rates of fatal injury across the EU, lower than other large economies and the EU average. Non-fatal injuries in the UK were at a similar level to other large economies in 2013. Rates of work-related ill health resulting in sick leave were lower than most other EU countries.”
The Numbers: 2019/2020
The Health and Safety at Work: Summary Statistics for Great Britain report, using data for the year ending March 2020, states that there were:
- 6 million cases of work related ill-health (of which, 0.8M related to stress, depression or anxiety); and,
- 7M self-reported non-fatal injury cases (compared to c.65,000 reported cases) and 111 fatal injury cases.
The cost of work related ill-health and injury is estimated to be:
- 8M work days lost (55% due to stress, depression, anxiety, 16% to non-fatal injuries); and,
- £10.6 billion due to work related ill-health and £5.6B due to work related injury (data from 2018 / 2019).
The Numbers: 2020/2021
On 7 July 2021, the HSE published its annual report on Fatal Injuries in the Workplace in Great Britain, for the year ending March 2021 (there is no similar data yet for non-fatal injuries or work related ill-health).
In 2020/2021, 142 workers were killed at work. Those fatalities arose from: falls from a height (35); being struck by a moving vehicle (25); being struck by a moving object (17); being trapped by something collapsing or overturning (14); and, contact with moving machinery (14). More than 50% of fatalities occurred in the Construction and Agriculture / Forestry sectors….