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northern ireland

NI: NI Court of Appeal: Builder responsible for labourer’s fatal fall is given custodial sentence on appeal

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Article Tags:
northern ireland

A man who was responsible for the death of a labourer, whom he contracted to work on the roof of an agricultural shed, must serve 12 months in custody after the Director of Public Prosecutions appealed the leniency of the original sentence. Delivering the judgment of the Court, Lord Justice Gillen emphasised that a deterrent sentence was necessary especially since the particular safety failures were observed to be widespread in the building trade.

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About this case:

Background

In January 2015, Mr McKenzie was contracted to work on an agricultural shed at the premises of his co-accused Mr Reilly. On the day of the incident, Mr McKenzie was on site with three employees, including the deceased.

To conduct work on the roof of the shed, the deceased and a co-worker were hoisted up by Mr McKenzie.

The men were not provided with any safety equipment such as helmets, harnesses, safety nets, perimeter scaffolding, elevator platforms or any form of all round edge protection for carrying out the task.

Unfortunately, there were no safety measures put in place and no discussion about safety with the workers; and no risk assessment had been carried out by Mr McKenzie or Mr Reilly as required under the health and safety legislation.

On the day in question, it began to rain, and requests made to Mr McKenzie to ask him if they could cease work on the roof were ignored.

Due to the rain, the roof became slippery and the deceased and a co-worker fell 5 metres from the roof.

The deceased suffered fatal head injuries upon impact with the ground, and his co-worker suffered relatively minor injuries.

Sentencing

In January 2017, Mr Norman McKenzie was convicted at Craigavon Crown Court of:

  1. Manslaughter committed contrary to common law.

  2. Failing to ensure the safety and welfare at work of an employee contrary to Article 4(2)(a) of the Health and Safety at Work (Northern Ireland) Order 1978.

  3. Failing to carry out a suitable and safe assessment of the risks to the health and safety of an employee contrary to Regulation 3(1)(a) of the Management of Health and Safety at Work Regulations (Northern Ireland) 2000.

  4. Failing to take suitable and sufficient measures to prevent any person falling a distance liable to cause a personal injury contrary to Regulation 6(3) of the Work at Height Regulations (Northern Ireland) 2005.

    5. Mr McKenzie was sentenced to 15 months imprisonment suspended for 3 years in respect of the charge of manslaughter; and fined £1,000 on each of the three other offences

    In the Court of Appeal, the Director of Public Prosecutions made a referral under Section 36 of the Criminal Justice Act 1988, contending the leniency of the sentences imposed.

    Court of Appeal

    Justice Gillen was satisfied that the fatal consequence had to be reflected in the sentence; and that deterrent sentences for such cases were required for three reasons:

    1. To emphasise to offenders that gross negligence of this kind, where the lives of workmen are at risk, require custodial sentences.

    2. Because safety failures of this kind were widespread in the building industry, and this had to change radically.

    3. Because men such as the deceased and other casual labourers are particularly vulnerable and exposed in dangerous workplaces such as this – therefore it was in the public interest.

      4. Applying the criteria in in R v Brown NICC 6, the Court of Appeal made the following observations:

      1. The risk of death or serious injury was foreseeable, particularly in the inclement weather conditions;

      2. There was a total absence of safety assessment or precautions in this instance;

      3. On evidence provided by other workers employed by Mr McKenzie, this was not a one-off occurrence;

      4. Mr McKenzie was completely responsible for the safety of this man;

      5. There was a fatal consequence;

      6. There was not by any means a prompt acceptance of responsibility; and the plea of guilty had been entered after the jury had been sworn and was therefore presented at a very late stage.

        7. Justice Gillen identified the mitigating circumstances to be fivefold:

        1. Mr McKenzie displayed extreme remorse

        2. He had a clear record

        3. There were many testimonials as to his good character

        4. The daughter of the deceased submitted a plea for clemency

        5. The fact that the matter had been ‘hanging over his head for two years’

          6. However, Justice Gillen stated that the sentences imposed were unduly lenient. As such, it was necessary for the period of custody to take effect immediately – as there was no basis for suspending the sentence.

          Considering the ‘considerable blow’ of having to serve a custodial sentence when he first left the Court believing he was not going in to custody – Justice Gillen determined that a sentence of twenty-four months on the charge of manslaughter was appropriate sentence; twelve months of which would be on licence.

          Regarding the fines for the three remaining counts, the Court imposed concurrent sentences of six months imprisonment to run concurrently with the twenty-four months for the charge of manslaughter, and that the fines should be removed.

          • by Seosamh Gráinséir for Irish Legal News

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