This seminar covered: • the legal matrix - the police, Health and Safety Executive and other regulators • immediate challenges in the hours and days after an incident - visits to site • dealing with the investigations - legal privilege, disciplinary investigations, safeguarding • witness statements - proper preparation • interview under caution - attend or not? How to respond • inquests • criminal proceedings - responding to the case summary and Friskies Schedule •sentencing.

1. Managing serious incidents and fatal accidents
November 2016, Birmingham

2. Managing investigations…
Stephanie McGarry
Rachel Lyne

3. Points to cover
• 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 investigations and
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

4. Who can investigate?
• Police – Criminal and Coroner’s Officers
• Health and Safety Executive
• Environmental Health / Trading Standards
• Care Quality Commission
• Fire Authority
• OFSTED
• Financial Conduct Authority
• HM Revenue and Customs
• Gangmasters Licensing Authority

5. Legal reasons to manage duties
• You have to! E.g. RIDDOR, Duty of Candour, FSA
• Failing which
– FFI
– Enforcement Notice
– Suspension / Conditions /Cancellation of registration or
authorisations
– Prosecution
 Sentence
 Reputation

6. Economic reasons to manage
duties
• 2013/14-workplace injury (including fatalities) cost
£4.9 billion
• In 2014/15 - 4.1 million due to workplace injuries.
Moral reasons

7. Common themes in breaches of
duty
• Lack of or poor risk assessment
• Ineffective monitoring/supervision
• Failure to adequately train staff
• An unjustified acceptance that what is in place is
both
– Best practice, and
– Being followed in practice

8. 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 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)”
– “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.”

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

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

11. 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

12. What happens if things go wrong?

13. • Who and what might be involved :
– Police
– HSE / other regulators
– Coroner
– Claimants
– Insurers
– Third parties i.e. press / FOI
– Internal investigations – Serious Untoward Incident
– Professional bodies
– Disciplinary investigation
– Serious case review
Managing a criminal investigation

14. • Early steps :
– RIDDOR / Reporting to other regulators
– Police primacy – other regulators support
– Taking witness statements – Section 9 CJA 1967- legal support
ie comment on policies
– Seizure of documents – PACE 1984
– Compulsory powers – Section 20 HSWA 1974 and equivalent
– Arrest
– MANAGED CO-OPERATION
Managing a criminal investigation

15. Data Protection Act
• DPA 1998
– Personal Data
– Reasonableness of request
– Consent
– Exemptions
– Section 29 DPA – crime exemption gateway only
– Disclose only as necessary / proportionate
– Subject Access Requests – redaction
– Confidentiality GMC / NMC guidance

16. Managing a criminal investigation
• 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
– Instruction of expert

17. Managing a criminal investigation
• Who will they want to speak to?
– Witnesses to incident
– Junior staff re culture
– Those with a responsibility for regulatory
compliance, management or policy development
– Senior managers operational and non operational
– Third parties i.e. sub contractors, consultants,
clients

18. Managing a criminal investigation
• What documents might they want?
– Regulatory policies
– Policies relating to incident
– Training records and qualifications of staff
– Training and risk assessment policies
– Relevant risk assessments and method statements

19. Managing a criminal investigation
– Personnel files including disciplinary
– Safe working practices
– Induction documentation
– Board minutes
– Minutes of Committee meetings e.g. H&S / environmental
– Maintenance policy
– Certifications relating to equipment
– Internal investigation report / SUI and supporting
documentation – privilege?

20. Managing a criminal investigation
• Non-privileged incident report
– Duty of candour – SUI / serious case review?
– Remit / scope
– Author
– Draft / unsigned
– Advice
– Action plan
– Distribution

21. Managing a criminal investigation
• Privileged incident report
– Author / recipients / draft
– Legal privilege?
– Prepared for the purposes of legal advice and in
contemplation of litigation
– Methods

22. Managing a criminal investigation
• Disclosure to Police / regulator
– Consent
– Police powers – NB excluded material
– Duties under DPA 1998
– Is the request reasonable?
– The right person to give the statement – drawn into
proceedings
– Keep good record

23. Managing a criminal investigation
• Third party request for information
– Who might ask
 Family – what is appropriate when
 Local organisations
 Press
 Members of public
 Employees
– Relevant law
 Freedom Of Information Act – exemptions?
 Data Protection Act

24. Managing a criminal investigation
• Support of witnesses / suspects
– Witnesses
 Union rep
 Union solicitors
 Trust solicitors
 Independent solicitors
– Suspects
 Union solicitors
 Independent solicitors
 Financing

25. Managing a criminal investigation
• Interview under caution
• May be conducted by Police and / or other regulator
• “Where a person is suspected of having committed an
offence”
• Tape recorded or contemporaneous notes or evidence
obtained during questioning admissible in criminal
proceedings
• Legal rep / conflict

26. Managing a criminal investigation
• Taking advice
– Legal advice
 Law Society guidance – employer / employee
 Request for documentation by Police / Regulators /
third parties
 Advising the Board
 Addressing conflict
 Internal investigation

27. Managing a criminal investigation
– Expert advice
 Examination of equipment
 Cause of death
 Cause of accident ie engineer
 Health and safety / care given expert opinion
– Others
 Crisis management
 Public relations /perceptions

28. Managing a criminal investigation
• Publicity/ Perception
– At all stages
– Continuity required
– Press release for specific occasions?
 Incident
 Inquest
 Decision to prosecute
 Dismissal of staff
 Verdict in prosecution

30. Civil Claims - Investigations
Collaboration
and
Efficiencies
Policy Cover
Liability
decision
Rehab and
Quantum
Experts -
Network

31. 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

32. 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’’

33. Inquest pathway
• Coroner opens inquest shortly after death
• Coroner’s Officer collates evidence
• Pre-inquest reviews (PIR) in complex cases
– Includes written / oral submissions on jury / Article 2 / witnesses / disclosure
• Coroner’s Officer swears in jury (if applicable)
• Coroner sums up/directs jury
– Includes written / oral submissions on conclusion
• Conclusion / completion of inquisition form
• Support those attending
• Impact on other aspects of case
• PFD

34. Prosecution
• Health & Safety Prosecutions (2014/15)
– HSE 650 cases and LA 78 cases
– HSE conviction rate 86% and LA conviction rate 93%
• CQC – first prosecution – failing to provide safe care - £190,000
fine and £16,000 towards costs
• EA – August 2015 – breach of all 3 waste regulations - £45, 500 fine
and £9,000 costs
• Food Safety – January 2016 - 99p Stores Ltd fined over £400,000 for
rat infestation
• Fire Authority – February 2016 – fatal fire in residential tower block
- £40,000 fine and £23,000 costs (not-for-profit organisation)

35. 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
• Similar in other regulatory provisions

36. Section 7 and 37 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 (section 7)
• Director, manager, secretary or other similar officer -
the offence was committed by the company with the
consent of, connivance of or to have been attributable
to the neglect of those persons (section 37)
• Similar in other regulatory provisions

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

38. Prosecuting Individuals
• E.g. 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"

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

40. 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.

41. 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”

42. Sentencing guidelines - health and safety
offences, corporate manslaughter and food
safety and hygiene offences guidelines
• What?
– Applies to health and safety and food safety
breaches and Corporate Manslaughter
– In practice also used in other regulatory
prosecutions
– 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

43. Sentencing guidelines - health and safety
offences, corporate manslaughter and food
safety and hygiene offences guidelines
• 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

45. 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

46. 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.

47. 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.

48. Very high culpability

49. 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

50. • 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

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

52. Step 3
• “The fine must reflect the seriousness of the offence
and 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.”

53. Step 3
• “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”

54. 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).

55. • 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

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

57. Proactive Health & Safety
Management
• Leading Health and Safety at Work : actions for Directors, Board
members, business owners and organisations of all sizes –
www.hse.gov.uk/ leadership
• Essential Principles
• 4 point agenda to implement above
– Plan
– Do
– Check
– Act

58. What do companies need to do?
• Review regulatory policies, systems and procedures
• Keep up to date with regulatory 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.

59. What do companies need to do?
• Review the company’s “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
regulatory compliance
• Protect employees by telling them about regulatory issues that
affect them
• Check what insurance cover is in place
• Enforce compliance i.e. disciplinary

60. What do companies need to do?
• Protocol for regulatory investigation
– Outlines a plan
– Identify key parties internally /contacts externally
– Set out regulators powers
– Framework for what investigation involves
– Key steps to consider

61. Key Points
• Be informed
• Act swiftly to avoid prejudice
• Early legal advice – before the event?
• Be prepared for conflict and have a plan to manage
internally
• Be prepared for each stage
• Manage regulatory compliance

62. Speak to us…
Rachel Lyne| 0121 237 4584
rachel.lyne@brownejacobson.com
Stephanie McGarry| 0115 908 4113
Stephanie.mcgarry@brownejacobson.com