Bernard Thorogood

2 week Inquest, relating to a death in a secure mental
health unit, in context of Parliamentary Inquiry into several years of such deaths in this Trust.

August 2022 – acted for HSE – case lasted several years – Teesside Crown Court – two separate cases of Arcflash events leading to unpleasant and serious injury. Complex cases to master and present. Careful management brought both cases to guilty pleas – fines in excess of £3.5m. Full cost recovery.

Acted for the FARS in prosecution by a Regulator – North Staffordshire Justice Centre July 2022 – very senior and experienced rope rescue officer gravely injured in abseiling training exercise on the Derbyshire Moorlands – Level A risk. Successful submissions, particularly as likelihood of harm and financial issues, reduced the fine to £10,000 – prosecution had suggested figures as high as £1m. The Court passed remarks which recognised the high standards to which the FARS worked.

Following Inquest in Nottingham – acting for the Local Authority – January 2022 – the National (Retail) Employer accepted cautions and paid investigation/Inquest costs, that being, for good reason, the Authority’s preferred resolution of the case.

Acting for the Local Authority – Derby Courts – April 2022 – though the duty-holder denied liability in its written submissions, guilty pleas were entered after a strong case was assembled and presented. Attempts to minimise basis of plea successfully resisted.

October 2021 – acting for HSE – fatal case arising from workplace transport issues. The director argued that his culpability was minimal. This was successfully opposed and prison sentence (suspended) resulted.

June 2021 and June 2022 – Exeter Crown Court and Court of Appeal – acting for Natural England – farmer faced unusual allegations of having carried out prohibited agricultural works on land of particular archaeological importance. Litigant in person who appeared before many Judges, requiring extensive management. Achieved guilty plea, 2 years after case came to the Crown Court, through careful management and case presentation. Subsequent appeal dismissed – R v Cooper [2022] EWCA Crim 922

Acted for the Local Authority – 2021-2023 – successful negotiation which achieved a caution rather than prosecution, following Level A risk incident, resulting in grave injury, arising from workplace transport issues.

Derby – October 2021 – Defence – environmental
issues relating to bacterial risk on a school farm – Court persuaded to find lower levels of culpability and harm than prosecution contended for, with the result that penalty was very much lower than prosecution analysis suggested was appropriate.

South Wales Coroner’s Court – July 2021 – case involved tree felling on commercial basis – successful defence of Director and company at Inquest. Coroner directed jury that any alleged failings in the management of the works did
not

Oxford – June 2021 – Defence – successfully argued that regulatory breaches did not present a food or public safety issue – the Court was persuaded to find “low culpability”. Extremely moderate fine achieved, more importantly – the Court passed comments which gave significant praise to the Company and its leadership.

Chelmsford Crown Court – June 2021 – Defence – instructed for an NHS Mental Health Trust in which there were multiple deaths ligature deaths over a period of more than a decade. Very early meetings of legal teams, a high degree of cooperation with the investigation, and proper presentation of the Trust’s efforts to improve practices, persuaded the Court the Trust was “well-led” and dedicated to dealing with all identified issues. Very substantial reduction in penalty achieved. More importantly – the Trust’s leadership/achievements were recognised.

Essex – 2019-2020 – Defence – careful submissions/negotiations diverted an intended environmental prosecution into an Enforcement Undertaking, following water abstraction activities in breach of permit. Very substantial payments from RPA had been withheld but structured submissions resulted in the return of those sums to the business.

Leicester – December 2020 – Defence – farming case – successful appeal against an animal disqualification order. If the appeal had not succeeded the farmer’s business would have been completely ruined.

Westminster – 2019-2020 – Defence – Potential prosecution in relation to a prominent breach of planning regulations prevented by careful structured submissions.

Luton – February 2020 – Defence – acting for a major Local Authority – work at height not done as it should have been, leading to grave injury. Work analysing the prosecution case and the available mitigation, coupled with careful written submissions, led to a fine of under £10,000. Prosecution had suggested that the start point was £600,000 in the range £300,000-£1,600,000.

Concluded January 2020 – Sheffield Crown Court – Defence – fire safety breaches identified at football league ground – careful deployment of defence expert report and highly structured mitigation, resulted in moderate penalty and reduced costs.

January 2020 – Defence – acting for the company and two Directors – Exeter Crown Court – asbestos issues not managed as required. Prosecution persuaded at Court, to drop the case against one Director. Expert evidence obtained by Counsel demonstrated actual risk in relation to the remaining Director was minute . Although District
Judge had sent the case to the Crown Court on the basis that custodial powers below were too limited, the Director was in fact fined only £1000 in the Crown Court. The Company was also fined a very low sum. Prosecution had alleged very high culpability and Level A risk, which pointed to significant custodial outcome. The Court was persuaded to take a very different approach.

October 2019 – acting for the Local Authority – Warwick Crown Court – stock collapse in warehouse – causing death and other grave injury. Inquest in April 2018. Risk assessment did not identify the hazard – height and nature of stock posed serious risk to workers. Guilty pleas entered. Fined £2.6m.

July 2019 – Wolverhampton Crown Court – acting for Local Authority – dealt with by Senior Presiding Judge – risk to the public arising from poorly maintained building in city centre – wooden structure blown off during winter storm, causing death and other injury in the street below. Guilty plea. Fined £1.333m. Failure to identify structures requiring maintenance and to maintain same.

June 2019 – Derby – Defence – the Home Manager was charged, as well as the Company, in relation to the management of falls, deficiencies in which had led to a fatality. Comprehensive written submissions to CQC ahead of the hearing caused the prosecution to drop the case against the manager entirely – she was acquitted.

Chelmsford – concluded May 2019 – Defence – Director charged with environmental offence (only after which was Mr Thorogood involved). The full extent of the proposed defence identified by counsel was revealed in an “open advice” sent to the EA, as part of a successful strategy to persuade the prosecution to drop the charge. As a result, the case was dropped against the Director at Court and he was acquitted.

March 2019 – instructed for a Local Authority – death of vulnerable older person in public place – the Authority involved as Interested Person because their structural alterations alleged to be connected to the fatality. Careful questioning demonstrated that enforcement action inappropriate. Significant analysis of British Standards for both technical equipment and building works required in proceedings. No enforcement action taken.

October 2018 – Instructed for the Local Authority – death of elderly customer in connection with mobile banking unit – interesting legal questions concerning whether jury required in the circumstances. Careful examination of the issues demonstrated that no enforcement action called for and none taken.

Wrexham – concluded in June 2018 – Defence – explosive ejection of molten plastic under great pressure. As a result of careful analysis, defence view of culpability and harm accepted as correct by Court and low fine imposed, when prosecution had suggested that very much larger fine was appropriate.

Concluded in February 2018 – Prosecution – investigation began in 2011 following ejection by Red Arrows pilot when parachute failed to deploy, leading to loss of life. Immense complexity in the engineering evidence. After initial not guilty plea, defendant changed plea.

Bristol – Defence – acted for Company Chairman – concluded January 2018 – after jury trial lasting several weeks and successful appeal thereafter. Case concerned Health and Safety associated with management of challenging behaviour in residential care. Massive complexity on the facts. Acquitted by jury of main charge. Initially convicted of very much less serious (secondary) participation in Health and Safety offence (though fined within the old Magistrates’ Court’s limits). Leave to appeal obtained from the full Court in May 2017 – conviction quashed at full hearing in October 2017. Following contested submissions concerning re-trial, Court ruled that there would be no re-trial in January 2018.

December 2017 – Manchester – Defence – defence analysis preferred by the Court, and modest penalty imposed, in contrast to prosecution’s submissions. Moderate penalty vital for this family business.

December 2017 – Shrewsbury Crown Court – Prosecution – case featured 5 fatalities and a long-term failure to control falling risks in a hospital environment – defence contested causation of deaths – after detailed submissions that issue resolved decisively for prosecution.

Nottingham – May 2017 – Defence – Court Crown Judge preferred defence analysis of case to prosecution’s – penalty suggested by prosecution as appropriate was
very substantially reduced by Court, to one within the old Magistrates’ Court limits.

Stafford – Concluded September 2016 – Prosecution – the “Alton Towers” rollercoaster collision. Complex engineering to master and similar issues arising in connection with the application of the 2016 Definitive Guidelines to the facts of the case. National publicity consequent upon facts and fine (£5m).

September 2016 – Cardiff Crown Court – Defence – (fatal) case – based on alleged inadequacy of client’s engineering works – prosecution persuaded (by detailed representations from counsel, based upon an expert recommended by counsel) to offer no evidence at second PTPH. Acquitted on all charges. Costs order secured.

January 2016 – Birmingham Crown Court – Defence – counter-terrorism firearms officer (sniper) had part of his trigger finger cut off when operating a shear used to destroy seized weaponry – Court substantially reduced fine having regard mitigation advanced.

January 2016 – Portsmouth Crown Court – Defence – acting for 2 dissolved Primary Care Trusts, their criminal liability for fatal health and safety breaches having been transferred by order to the National Health Service Litigation Authority. Substantial arguments as to culpability and liability to pay prosecution costs resulted in a much reduced fine and payment of costs. The Judge (a member of the Sentencing Council) indicated that the penalty would have been the same, had she applied the new Definitive Guideline.

January 2016 – Crown Court – Defence – fatal choking incident involving vulnerable service-user in day centre – non-causative basis secured, leading to much reduced fine/costs. Very close examination of complex financial evidence.

December 2015 – Stafford Crown Court – Prosecution – case concerned 4 fatalities spread over 8 years – attracted national coverage for obvious reasons. Case of considerable complexity and national importance.

Preston Crown Court – September 2015 – Defence – unusual situation, acting for 2 dissolved Primary Care Trusts, their criminal liability for fatal health and safety breaches having been transferred by order to the National Health Service Litigation Authority. Causative link to breaches. Substantial arguments as to culpability and liability to pay prosecution costs resulted in a much reduced fine and payment of costs.

Truro Crown Court – July–August 2015 – Defence – substantial and complex manslaughter/health and safety (electrocution) trial lasting several weeks, with significant issues between all defendants and Mr Tucker, as well as between prosecution and defence. Mr Tucker was the only individual not sent into custody. Much hard work required to demonstrate the difficult situation into which the defendant had been placed.

Stafford Crown Court – June 2015 – Prosecution – second fatality and second prosecution on same production line – confined space/complex engineering at heart of case.

Representing NHSLA on behalf of now dissolved Primary Care Trust – February 2015 –– fatal incident involving confused elderly patient. Following Inquest and detailed written submissions, the Regulator decided not to charge or take other enforcement action, though earlier indications were to the contrary.

October 2012 – Stafford Crown Court – Prosecution – fatal case arising from unsafe traffic management – convictions secured following 2 week trial. Defence appeal to Court of Appeal (conviction and sentence) dismissed – December 2014. Court of Appeal clarified the meaning of “material risk”.

Concluded in July 2013 – Carlisle Crown Court – Prosecution – devastation to highly sensitive SSSI – substantial hearings concerning legal interpretation of
crucial concepts/powers. basis of plea and extent of culpability/sentence. Full costs (£457,000) recovered. Appeal (conviction and sentence) dismissed in December 2014 – application to Supreme Court successfully resisted.

Newcastle Crown Court – December 2014 – Defence -– successful arguments during 2 day contest in which Court accepted defence submissions to the effect that there was no causative link between breach and death. Very much reduced fine and costs as a result.

Leicester Employment Tribunal – May–October 2014 –– Defence – acting for farmer – walkers suffered injuries from cattle in 2 of his fields, on the same day – one fatal. Prohibition Notice, expert evidence and negotiation led to acceptable resolution – there were no charges.

September 2014 – Defence – concerning care planning – fatal case – choking – service-user with severe learning problems given foods which were apparently prohibited in care plan. Dealt with in Magistrates’ Court – low fine and prosecution costs much reduced.

Shrewsbury/Birmingham Crown Court – April 2014 – Defence – case launched 5 years after the Inquest – and 10 years after the fatal boiler explosion accident – application to stay the case as an abuse – prosecution decided to offer no further evidence on the second day. Acquitted of all counts.

Luton – April 2014 – Defence – bank employee caught in fireball – persuaded Court to keep the case in Magistrates’ Court – low penalty.

Mold Crown Court – December 2013 – Defence – fatal case involving young person in swimming pool – disputes as to factual basis for sentence all resolved in defendant’s favour, including causation of death. Low fine imposed.

Southend Crown Court – July 2013 – Defence – death of vulnerable patient through insufficiently secure window – despite revenues of over £200m, fine kept down to £15,000.

Manchester Crown Court – May 2013 – Defence – jury trial of a driver who caused a reversing fatality during delivery at commercial premises – acquitted by jury of all charges – full costs recovered.

May 2013 – Reading Crown Court – Prosecution – fire in explosives building at sensitive public establishment – guilty plea secured – full costs recovery, complex issues of ignition and likelihood of detonation.

August to December 2012 – Derby Crown Court – Defence – driver employee of national employer accused of causing death by careless driving. Careful research and structured written submissions persuaded CPS to offer no evidence before trial reached. Full costs recovered.

September 2012 – Manchester Crown Court – Defence – defendant’s staff cut 6” gas main and blew up major development site (hospital) – jury trial – defendant acquitted, with full costs recovery.

July 2012 – Derby Crown Court – Defence – fatal (reversing) case – refuse lorry – member of public on mobility scooter – very low fine achieved, though Definitive Guideline engaged.

Preston Crown Court – March 2012 – Defence – during works to clear site of trees and vegetation, a fatality arose from most unusual facts. Guilty plea could not be avoided but non-causative basis secured – basis and strong mitigation reduced fine to £15,000.

Central Criminal Court – February 2012 – Defence – non-causative basis secured – lii hddfi(fl )Cildldfllif