This seminar aims to give practical advice to those being investigated and prosecuted for regulatory offences. We also look at the new powers of the Magistrates and the sentencing guidelines for regulatory offences to assist you in assessing your approach to any prosecution. https://www.brownejacobson.com/sectors-and-services/services/regulatory

1. Managing investigations
June 2016, Exeter

2. Purpose of discussion
• To consider why it is vital to
• Manage our various duties
• Manage the investigation if we don’t comply
• To identify common themes in the prosecutions
• To identify potential areas of weakness within the
organisation
• To review the various elements of investigations
• To consider the legal consequences of failures for both the
business and the individual
• To identify a way forward

3. Legal reasons to manage duties
• You have to!
• Failing which
– FFI
– Prosecution
 Sections include 2, 3, 7, 36 and 37 HASAWA
 Corporate Manslaughter
 Sentence
 Reputation

4. Economic reasons to manage
duties
• 2013/14--New cases of workplace illness account
for around £9.4 billion and workplace injury
(including fatalities) cost £4.9 billion
• In 2014/15, 23.3 million days were lost due to
work-related ill health and 4.1 million due to
workplace injuries.

5. Moral reasons to manage duties
• UK fatalities (2014/15)
– 142
• UK major injuries (2014/15)
– 18,084
• UK all injuries (2014/15)
– 76,054

6. Moral reasons to manage
• Quotes from family members who have lost a loved one in the
workplace
• “I lost my husband and my son in one morning….what can I say, I
felt and still feel empty. They never lived to see their son and
grandson.”

7. • “I remember the day of the funeral. My dad stood outside our home,
waiting for the hearse to arrive. The minute he saw the black car
slowly edging up the road, and turning to me crying out the words I’ll
never forget, “He’s home Soph, Paul’s home”, tears streaming down
his face. I have only ever seen my dad cry twice, and I mean really
cry, cry with uncontrollable pain and that’s the day we buried his dad,
my granddad (just a year to the month before) and that morning in
August 2005 when he stood outside the front door to our home and
watched as the hearse approached. It stopped with Paul’s coffin
inside, draped in a union jack and stood there stationary; we could
only look on in pain.”

8. Common themes in breaches of
duty
• Ineffective monitoring/supervision
• An unjustified acceptance that what is in place is
both
– Best practice, and
– Being followed in practice

9. Judge’s comments in recent
prosecutions of major company
• Do any of these comments ring alarm bells with you?
– “It is accepted by the defendant that he (the injured
person) should have been supervised to ensure that no
bad habits evolved”
– “The defendant company is very safe and is safety
conscious and has co-operated in the investigation”
– “The company’s failure was a failure to supervise a
trusted and experienced employee (the person who was
supposed to be looking after the injured person)”

10. Judge’s comments
– “Defendant recognised the dangers and measures were in
place to minimise the risk.”
– “How far short of the requisite standard did the company fall?
Not very far”
– Monitoring was crucial as it was known that employees make
mistakes. Monitoring and supervision were so important here
due to the circumstances. The risk of explosion were small,
but the risk to human safety was great.”

11. In those particular cases…..
• What has been evident in each of the investigations is that, whilst
there were procedures and processes in place, the Company
could not prove that it was ensuring that those procedures were
being consistently followed “on the ground”
• It couldn’t do this in many cases because it recognised the
competence and expertise of the individuals and accepted that
each was doing what they should have been doing without
sufficient monitoring
• Neither could the Company prove the effectiveness of its
systems, monitoring and training because its record keeping was
not adequate (through poor completion or poor retention)

12. Where companies often fail
• Poor training of front line workers, especially in safety
critical roles
• Procedures and systems not followed by front line staff and
junior management
• Poor health & safety management at the operational level
• Middle managers telling senior managers what they want to
hear
• Poor communication with staff and contractors

13. Where companies often fail
• Inadequate monitoring of safety performance, or not
proportionate to the risks being managed
• Senior management making decisions on incomplete/wrong
information that affect safety (e.g. budgets and resources)
• Failing to formally close actions
• Not learning from experience

14. Do you have any of these Achilles
heel(s)?
• Inherently hazardous business
• Multi-site operations
• Contractors
• Multiplicity of regulatory requirements
• Number of employees
• Transformation projects

15. “We’ve always done it that way”
• This is one of the most frequent sentences we hear and it is one
that chills us to the core, because
– There is a fear that bad practice evolves through handed-down
“knowledge” from those most experienced employees
– This can lead, and has led, to work practices not being the same
as written procedures

16. What happens if things go wrong?

17. Immediate challenges
• Immediate Practical Steps
– Act quickly
– Identify Inspector and Supervisor from regulator
– Appoint suitable person within organisation to liaise and
coordinate
– Log all documents submitted
– Support / inform and expect vice versa from staff – subject to
conflict
– Set up proper information sharing in your organisation
– Taking early legal advice – NB conflict
– Notify insurers

18. What to do if incident occurs
• Do you have a Critical Incident Plan which deals with major injury
and fatality incidents?
• Does everyone know about it?
• Essentially, if an incident occurs
• Notify
• Internally
• RIDDOR-HSE
• Insurers
• Legal team

19. What to do if incident occurs
cont.
• Actions
– Ensure preservation of evidence
– Arrange team for internal investigation
– Nominate contact point for HSE/Police
– Nominate comms person
– Nominate contact point for family
– Instruct specialist lawyers ASAP
• Remember this is a criminal investigation

20. • Key Responsibilities of a Lawyer Post Incident
• Manage Inspection Process
– Main point of contact with HSE Inspectors
– Manage provision of evidence, including taking of copies
– Manage interview process
• Manage documents
– Preserve existing documents
– Apply legal hold procedure
– Restrict creation of new documents

21. • Manage External Lawyers
– Lawyers to represent company
– Independent lawyers for any individuals
• Liaise with
– Management
– Comms
– Insurable Risk

22. An investigation begins (non-
fatal)
• HSE inspectors have extensive powers
– To enter premises
– To make examinations in investigations
– To direct that premises or any part of them shall be left
undisturbed
– To take measurements and photographs
– To take samples to dismantle test
– To take possession of and detain articles
– To require anyone to provide relevant information
(s.20(j))
– To require the production of documents
– To require facilities and assistance
– Any other power necessary to assist the inspector

23. Who will they want to speak to?
– Witnesses to incident
– Junior staff re culture
– Those with a responsibility for H&S/Env’l
management or policy development
– Senior managers operational and non operational
– Third parties ie sub contractors or consultants

24. Who will they want to speak to?
• Power to question witnesses
• Section 9 CJA
• Section 20 HASAWA
• PACE
• Inspectors have internal guidance on questioning
• What will they ask for?
• What do you have to provide?

25. What documents might they
want?
– H&S/env’l policies
– Policies relating to incident
– Training records and qualifications of staff
– Training and risk assessment policies
– Relevant risk assessments and method statements

26. What docts cont.
– Personnel files including disciplinary
– Safe working practices
– Induction documentation
– Board minutes
– Minutes of H&S/env’l Committee meetings
– Maintenance policy
– Certifications relating to equipment

27. Investigation (fatality)
• Police have primacy
• WRD Protocol

28. Interview under caution
• HSE/Env Agency
– Do you have to?
– Why would you?
– Alternatives?
• Police
– Obligation if under arrest

29. Internal investigation
• Important part of the process to ensure lessons
learned

30. Privilege
• All reports to be at request of legal
• Report divided in to either
– three sections or
– two reports
• Not guaranteed to protect it but a chance

31. Don’t forget…
• Public relations /perceptions
– At all stages
– Continuity required
– Press release for specific occasions?
 Incident
 Inquest
 Decision to prosecute
 Dismissal of staff
 Verdict in prosecution

32. Inquests
When must the Coroner investigate a death?
• Death is violent or unnatural (including death due to self harm)
• The cause is unknown
• Death in custody or state detention ( Art 2)

33. What is the purpose of an inquest?
• Fact finding exercise
– It is not a trial / purpose is not to apportion blame but…
– It may feel like it during the inquest…!
• Four key questions
– Who the deceased was?
– How, when and where the deceased died?
– NB: Article 2 provisions – “how and in what circumstances”
• Conclusions and liability [s10(2) CJA 2009 /old rule 42]
– “No conclusion shall be framed in such a way as to appear to determine any
question of:
1. Criminal liability on the part of a named person, or
2. Civil liability’’

34. What evidence can the Coroner
hear?
• Relevant hearsay evidence is admissible
– Oral / documentary
• Coroner’s inquest is not bound by strict law of evidence
• No prohibition in legislation or rules
• Cannot be excluded if relevant
• Question: how much weight is given to such evidence?

35. Inquest pathway
• Coroner opens inquest shortly after death
• Usually able to release body for funeral at that time or soon after
• Coroner’s Officer collates evidence
• Pre-inquest reviews (PIR) in complex cases
– Includes written / oral submissions on jury / Article 2 / witnesses / disclosure
• Coroner re-opens inquest for full hearing
• Coroner’s Officer swears in jury (if applicable)
• Coroner hears evidence
• Coroner sums up/directs jury
– Includes written / oral submissions on conclusion
• Conclusion / completion of inquisition form
• Death certificate issued and death registered

36. Inquest attendance
• Provide training to those attending

37. How does an inquest fit in with
other investigations?
• Health and Safety Executive (HSE)
– Different scope of investigation
– Can run along side Coroner’s investigation
– HSE can ask Coroner to suspend investigation
– Memorandum of understanding
 E.g. HSE discloses report to Coroner
 E.g. HSE as a PIP to inquest
– Prosecution prior to inquest where minimal risk of unlawful killing conclusion
at inquest.

38. What’s the fall out from a PFD
report?
• Mandatory where the evidence gives rise to a concern that circumstances
exist which create a risk that other deaths will occur in the future
• In the Coroner’s opinion, action should be taken to prevent the occurrence
or continuation of such circumstances, or to eliminate or reduce the risk
– Para. 7 of Schedule 5 of the Act wide scope; coroner’s concern may arise from
“ANYTHING revealed by the investigation”
– Para. 15 of Guidance Note 5: ‘Sometimes it may be necessary to hear some
evidence which may be relevant for purpose of making a report but not
strictly relevant to outcome of the inquest’.

39. What’s the fall out from a PFD
report?
• Recipient must respond within 56 days
– Must include an action plan and timetable for implementation or reasons why
no action proposed
• Adverse publicity
• Impact on commercial contracts
• Spot light on systemic practices (time-consuming; expensive)
• Re-appearance before the same Coroner with the same problem later?!
• Supports litigation

40. Prosecution
• Prosecutions (2014/15)
– HSE 650 cases
– LA 78 cases
– LA had conviction rate of 93%
– HSE had conviction rate of 86%

41. HSE Guidance
• General Enforcement Policy
• Enforcement Policy Statement requires Inspectors
to identify and prosecute individuals where
warranted

42. Prosecuting Individuals
• HSE Operational Circular 130/8
– "In general, prosecuting individuals will be
warranted where there are substantial failings by
them, such as where they have shown wilful or
reckless disregard for health and safety
requirements, or there has been a deliberate act or
omission that seriously imperilled their
health/safety of others"

43. Section 7 HASAWA
• It shall be the duty of every employee while at work to
take reasonable care for the health and safety of himself
and of other persons who may be affected by his acts or
omissions at work

44. Section 7 Circular Guidance
• "When appropriate you should not hesitate to take action
under Section 7 against managers and supervisors who are
not directors/managers subject to Section 37".
• "In general we are most likely to prosecute employees where
they have shown a reckless or flagrant disregard for health
and safety, and such disregard has resulted in serious risk".

45. • Para 5
• You need to consider all the circumstances in which employees
act, particularly any responsibilities they have within the
management chain, before deciding whether or not to investigte
further and/or to take enforcement action under section 7.
Generally therefore, your investigation should explore, and (if
prosecution is the purpose) collect evidence of, what the
employer has done in areas such as training, supervision, risk
assessment etc.

46. Section 37 HASAWA
• It permits action to be taken against a director, manager, secretary or
other similar officer of the company where it can be said that the
offence was committed by the company with the consent of,
connivance of or to have been attributable to the negligence of those
persons.

47. Section 37 Circular Guidance
• The matter was in practice clearly within the control of the
director/manager
• The director/manager had personal awareness of the circumstances
surrounding or leading to the offence
• The director/manager failed to take obvious steps to prevent the
offence
• The director/manager had received previous advice or warnings
regarding matters relating to the offence

48. Section 37 Circular Guidance
• The director/manager was personally responsible for matters relating
to the offence
• The individual knowingly compromised safety for personal gain or for
commercial gain on behalf of the body corporate without undue
pressure from the body corporate

49. Disciplinary
• This is also an option where the action or inaction of an individual
discovered during the investigation is sufficient to justify it
• In fact it is essential that this is a consideration

50. Company prosecution
• Health and Safety at Work Act 1974, section 2
– It shall be the duty of every employer to ensure, so far
as is reasonably practicable, the health, safety and
welfare at work of all his employees.
• Health and Safety at Work Act 1974, section 3
– It shall be the duty of every employer to conduct his
undertaking in such a way as to ensure, so far as is
reasonably practicable, that persons not in his
employment who may be affected thereby are not
thereby exposed to risks to their health or safety

51. Prosecution repercussions
• Criminal conviction
• Penalties
– Fine
– Imprisonment
– Suspended sentence
• Costs
• Employment implications
• Director disqualification
• Guilt (psychological not just legal)

52. If prosecuted..
• Check the charge
– Correct in law?
– Supported by the evidence?
– Dates of offence

53. If prosecuted
• Check the evidence
– Admissible?
• Consider the case summary/Friskies carefully
– Challenge where necessary
– Detail why not accepted
– Make it your version of incident
• Avoid any implication of profit above safety
• Use Guidelines to supplement your position

54. If prosecuted
• Defend or mitigate?
• Basis of Plea
– Important doct
– Different to any response to the case summary
– Keep it clear and concise

55. Sentencing guidelines
• Sentencing guidelines - health and safety
offences, corporate manslaughter and food
safety and hygiene offences guidelines
• Environmental Offences - Definitive Guideline
for the sentencing of environmental offences.

56. Sentencing guidelines - health and safety
offences, corporate manslaughter and food
safety and hygiene offences guidelines
• When?
– Sentenced on or after 1 February 2016
– “Regardless of the date of the offence”

57. • What?
– Applies to health and safety and food safety
breaches and Corporate Manslaughter
– The Guidance provides a series of fine ranges for
offences with starting points within each range
– There is then adjustment up or down from this
starting point within the given range
– Across the whole gamut the range is from £50 to £20
million

58. • How?
• Step 1
– Determine offence category based on culpability and
RISK of harm
– Culpability has four ranges from “very high” to
“low”
– Harm is based on seriousness and likelihood

60. Still step 1
• Court then considers
– Whether the offence exposed a number of workers
or members of the public to the risk of harm
– Whether the offence was a significant cause of
actual harm
• If one or both of these factors apply the court must
consider either moving up a harm category or
substantially moving up within the category range at
step two

61. Step 2
• Starting point and category range
– the court is required to focus on the organisation’s
annual turnover or equivalent to reach a starting
point for a fine. The court should then consider
further adjustment within the category range for
aggravating and mitigating features.

62. Turnover
• Micro: Turnover not more than £2million
• Small: Turnover between £2 million and £10 million
• Medium: Turnover between £10 million and £50
million
• Large: £50 million and over
• If an organisation's turnover very greatly exceeds the
threshold for large companies then it may be
necessary to move outside the suggested range to
achieve a proportionate sentence.

63. Very high culpability

64. Then….adjustment
• Factors increasing seriousness include
– Previous convictions, having regard to a) the nature
of the offence to which the conviction relates and
its relevance to the current offence; and b) the time
that has elapsed since the conviction
– Cost-cutting at the expense of safety
– Deliberate concealment of illegal nature of activity
– Poor health and safety record

65. Mitigation
• Factors reducing seriousness or reflecting mitigation
– No previous convictions or no relevant/recent convictions
– Evidence of steps taken voluntarily to remedy problem
– High level of co-operation with the investigation, beyond that
which will always be expected
– Good health and safety record
– Effective health and safety procedures in place
– Self-reporting, co-operation and acceptance of responsibility

66. Step 3
• Check whether the proposed fine based on
turnover is proportionate to the overall means of
the offender

67. Step 3 continued
• “The fine must reflect the seriousness of the offence
and that the court must take into account the financial
circumstances of the offender.
• The level of fine should reflect the extent to which the
offender fell below the required standard. The fine
should meet, in a fair and proportionate way, the
objectives of punishment, deterrence and the removal
of gain derived through the commission of the offence;
it should not be cheaper to offend than to take the
appropriate precautions.”

68. Step 3 continued
• “The fine must be sufficiently substantial to have a real
economic impact which will bring home to both
management and shareholders the need to comply with
health and safety legislation”

69. Step 4
• The court should consider any wider impacts of the
fine within the organisation or on innocent third
parties; such as
– the fine impairs offender’s ability to make
restitution to victims;
– impact of the fine on offender’s ability to improve
conditions in the organisation to comply with the
law;
– impact of the fine on employment of staff, service
users, customers and local economy (but not
shareholders or directors).

70. Guidelines continued
• Step 5
• Consider any factors which indicate a reduction, such as assistance
to the prosecution
• Step 6
• Reduction for guilty pleas
• Step 7
• Compensation and remediation
• Step 8
• Totality principle
• Step 9
• Reasons

71. Other consequences
•Publicity Orders
•Remedial Orders
•Indirect financial/commercial consequences
• Management time/Absences
• Insurance premiums/uninsured losses
• Tendering disadvantages
• REPUTATION

72. Questions we need to ask
ourselves
• We all know about competence and how that can be
measured, but are we confident in how effective we are at
monitoring that competence?
• Are we content that those employees we supervise and who
we know are experienced in the tasks they undertake are
not taking shortcuts?
• Are we willing to challenge behaviour or are we avoiding
confrontation? If so, why?

73. Conclusions
• Don’t be afraid to improve, enforce and
challenge procedures

74. Conclusions
• We’ve always done it that way !”
• Don’t be wary of challenging this
statement

75. Conclusions
• Safety is reliant on the attitude and buy-in of all employees,
including the Board
• Supervision and monitoring is, as the courts have highlighted, an
essential element in an effective safety culture and environment
• Challenge behaviours, don’t fall in to complacency
• There is personal responsibility as well as corporate liability

76. What do companies need to do?
• Review health and safety policies, systems and procedures
• Review all health and safety legislation and guidance applicable to
the business.
• Consider industry standards - establish what benchmarks should be
applied. Legal compliance should be viewed as a minimum standard.
• Ensure risk assessments are kept completely up to date and
reviewed when circumstances change.
• Determine who would be considered to fall within the definition of
“senior management” and ensure their competence for that role.
This may be linked to a review of health and safety training for
senior management

77. What do companies need to do?
• Review the company’s “safety culture” – not just the official
documents, policies and procedures but what happens “on the
ground”, and how procedures are enforced. Effective compliance
measures will be crucial.
• Ensure the Board is involved in the process and is promoting health
and safety
• Protect employees by telling them about H&S issues that affect
them
• Check what insurance cover is in place for criminal costs: many
policies only cover defence-only costs to magistrates’ courts level.
These cases can only be heard in the Crown Court.

78. What do companies need to do?
• Specifically review the organisation’s policies and risk assessments
concerning work-related vehicle use (both company cars and private
cars) as this is likely to become an increasingly hot-topic.
• Have in place an incident management plan/procedure to ensure that
should a serious incident occur the investigation and any subsequent
issues can be effectively managed.
• Improve record-keeping
• Ensure you have competent, specialist legal advice for health and
safety matters and review your procedures for responding to
investigations

79. What do companies need to do?
• implement a consistent and documented enforcement
regime for health and safety issues across the business -
what actually happens to employees when they fail to
comply with health and safety rules? Does the policy state
that breach of health and safety rules is considered to be
gross misconduct? Is the disciplinary procedure used?
• review the company's policies on control of contractors
• are employees able to report health and safety concerns
confidentially?

80. What do directors, senior managers &
individuals need do?
• Don’t panic if you are competent in what you have been asked to
do and are doing it
• But panic if you are a senior, responsible manager/director and
• … you don’t have the competence to do what you are supposed to
do
• …. you are making decisions on the hoof or with incomplete
information
• …. you don’t have effective practices and procedures covering all
aspects of your business in place
• …. you have lost or are losing control

81. Relevant words
• Competence
• Confidence (to challenge opposing views where necessary)
• Courage (to tell someone they are wrong or what they are
doing is wrong)
• Culture (does the company have the support of the
employees?)

82. Contact us…
Dale Collins
t +44 (0)1392 458770
e dale.collins@brownejacobson.com
Nigel Lyons
t +44 (0)1392 458731
e nigel.lyons@brownejacobson.com