Finance Monthly Global Awards 2018 Edition

HEALTH & SAFETY BARRISTER OF THE YEAR Defending a company officer facing prosecution by the HSE Increasing Risks There has been a dramatic change in the treatment of individual company officers for health and safety offending. In 2015 the Health and Safety Executive (“the HSE”) prosecuted just 15 persons. On 31 March 2016, the HSE revealed there had been a 300% increase between 2015 and 2016 with 46 individuals prosecuted, most of whom were company officers. The 2017 figures are expected to show a further increase on 2016 when they are published in October. HSE policy on the prosecution of individuals is contained publicly available documents: the Enforcement Guide, the Enforcement Management Model and OC130/8. These policies have not substantially changed. What seems to be driving the HSE approach is a cultural change both within the organisation and with society with much greater emphasis on corporate responsibility and deterrence. At the same time as the number of individuals facing prosecution is increasing dramatically, the Sentencing Council Guidelines for Health and Safety Offences (“the Guidelines”) introduced in February 2016 have led to a step change in the tariff for health and safety offences. Even a first-time offender who pleads guilty can expect a prison sentence if the offence demonstrates a high/medium degree of culpability and is combined with a high likelihood of serious harm. There has never been a better time for company officers and their lawyers to consider the risks of an HSE investigation. Old offences/New urgency If an individual is prosecuted, then it tends to be for one of two offences under HSWA 74 - (1) s 7 HSWA [duty of every employee at work to take reasonable care for the health and safety of other persons that may be affected by his acts or omissions at work]; or, (2) s37 HSWA [where an offence is committed by a body corporate and is proved to have been committed with the consent, connivance or attributable to the neglect on the part of a company officer]. S7 HSWA is on the face of it, very wide in scope. The issue at trial tends to exactly what risks to others are foreseeable for the employee in his job ie how far did the employee’s duty to other extend? For this reason, this offence tends to be used by the prosecution where the duty on the worker for the safety of a person can be very easily demonstrated (eg duty on a care worker for a vulnerable adult). Defendants may also want to focus on whether what was expected of them by the prosecution was reasonable or not? For example, a machine operator working shifts may have a duty to make sure the machine is left safe for the next shift, but if he has not been adequately trained so that bad practice has become condoned by the employer, then this may be relevant as whether his conduct was reasonable or not. S37 HWSA requires proof not just that a duty was breached by a company, but also proof that at the time the company committed the offence, the defendant company officer either consented and connived in that offence or else the company’s offence was attributable to the neglect of the defendant. Company officers include managers or other persons in “real authority” R v Boal [1992] 95 Cr A R 272. There is no due diligence defence. Defendant company officers will need to consider what they really knew about the circumstances of the offence. Was the breach by the company obvious? Did the defendant fail to take obvious steps to deal with the risk or was it concealed from him? Strategy/Tactics Once an investigation has commenced, the defendant will need to look for all evidence that might show he acted reasonably as this will be relevant to defending both s7 and s37 HSWA. Thus evidence of job descriptions, appraisals, training, conventions within the company structure, emails, policies, management meeting records and any other evidence which shows who knew about the risks and what they did to mitigate it will be relevant. Interviews under cautions for companies tend to result in prepared statements being submitted because it is hard for a jury to draw an adverse inference against a company, albeit not impossible. For individuals, the position is quite different and juries in the Crown Court are frequently are directed that failure to mention a relevant fact in interview could be grounds to draw an adverse inference against a defendant pursuant to s34 CJPOA 94. Worst Case Scenario If a company officer is convicted, then applying the Guidelines, not only is prison now a likely outcome but he needs to consider director’s disqualification (see R v Lloyd Chandler [2015] EWCA 1825) and costs which can often be more than £100,000 (see CPR 76). Thus, the trend towards greater individual accountability for corporate crime is now touching health and safety law. In my view, individuals are less likely to plead guilty to health and safety offences than corporations because of what is at now stake for them; not just their reputation but livelihood and liberty. Accordingly, their lawyers need to consider the full range of exclusionary rules of evidence and procedure that are available to ensure that as far as possible, a criminal trial is fair. About Tim Green Tim Green is a barrister specialising in health and safety work, environmental law and financial investigations at Outer Temple Chambers. His clients include FTSE 100 companies, their directors and managers. This article reflects a recent training seminar Tim gave for the Health and Safety Lawyer’s Association regarding discusses the risks to company officers of prosecution by the Health and Safety Executive “ He has great oral advocacy skills, he’s very good in court, and he has good strategic nous as well. He thinks of different ways of presenting the case and explores different angles so as to present it in the best possible way ” (Chambers and Partners Bar Guide 2017). Contact www.outertemple.com TIM GREEN Barrister at Outer Temple Chambers Finance Monthly Global Awards 2017 www.finance-monthly.com 46 UNITED KINGDOM