When a slip or trip becomes a crime

1. When a slip or trip becomes a crime James Chambers Solicitor, BLM London

2. Prosecutions, are likely to be considered where: • Where there would be a normal expectation of prosecution eg where death or serious injury has been caused by a breach of duty • Where there has been or there is a potential for considerable harm from the breach eg where a near miss has occurred • Where the gravity of the offence dictates that a prosecution must follow, eg where there has been reckless disregard for the health and safety, repeated breaches for persistent poor standards.

3. Statistics • The total value of fines for organisations convicted following HSE prosecution was £12.4 million, with average penalties of £20,606 per case. • The Sentencing Guidelines Council recently published guidance suggests that the starting point for a court considering a fine for a breach of health and safety law causing death would be £100,000 with the starting point for considering fines for corporate manslaughter being £500,000.

4. Why can a slip or trip be a crime? • Most health and safety offences derive from S.33 of the Health & Safety at Work Act 1974 (HSWA) • S.33(1)(a) – Failure to discharge a duty under Ss.2-7 HSWA, e.g. failing to ensure the safety of employees/non-employees or failing to ensure the safety of premises used for work. S.7 is the duty of employees to themselves and others in respect of health and safety • S.33(1)(c) – Contravention of any regulation, such as the Manual Handling Regulations, or the Work at Height Regulations.

5. Who can prosecute? • Health and Safety Executive (HSE) • Local authorities

6. Enforcement of HSWA Where it finds non-compliance, the HSE has six options to consider. They are: • Take no further action • Send a warning letter • Serve an Improvement Notice (S.21 HSWA) • Serve a Prohibition Notice (S.22 HSWA) • Formal caution • Prosecute

7. Penalties Offences can be prosecuted in both the Magistrates’ Court and the Crown Court • Fines: Magistrates’ Court – maximum fine £20,000 • Crown Court - unlimited fine • Imprisonment: Magistrates’ Court – 12 months • Crown Court – two years

8. Managing an investigation The best way in which to do this is to ensure that: • Procedures are in place to ‘handle’ the investigation being carried out by the regulatory bodies (the ‘external investigation’) • The company is in a position to undertake its own ‘internal’ investigation

9. There are four possible categories if target for prosecution by the HSE. They are: • The company • The directors, managers, company secretary or other managers of the company • Employees whose actions or defaults have led to the accident and/or an offence occurring • Employees who have breached safety duties they owe to themselves and others.

10. Interviews Interview under S.20(2)(j) Health and Safety at Work Act 1974.

11. PACE interview under caution • It is important to understand that PACE interviews are entirely voluntary unless the person is under arrest. • At present health and safety offences are not arrestable offences therefore attendance at almost all PACE interviews conducted by HSE is entirely voluntary.

12. Ostensible authority It is important that employees are informed that they are to speak for themselves only and not for the company and indicate early on to HSE who is authorised to speak on behalf of the company

13. Tactics when dealing with an external investigation • Appoint one company employee to take charge of the investigation and to be the point of contact between the company and HSE • This person will be the point of contact with HSE which will allow the company to know what is said to HSE and regulate the flow of information to them • All requests from HSE should go through that person

14. Identify early on to HSE, in writing, who is authorised to speak on behalf of the company. • This is best to be someone who was not involved with the accident and not personally at risk of prosecution. • Inform all employees (by letter if applicable) they are to speak for themselves only and not for the company.

15. Where an interview is requested, clarify: • Whether the person is to be interviewed as a witness or potential defendant • If the person is being interviewed as a potential defendant the basis upon which the interview is to be conducted, eg S.20 or PACE • Is the individual being interviewed in person or as a representative of the company • If as an individual, do the other employees or directors require separate representation.

16. Where an interview is requested, clarify: • If interview is to be a PACE interview under caution consider if it is in the best interests of the company and/or person to attend the interview • If decision is to attend interview seek clarification of the issues to be covered and consider the strategy to be adopted in the interview.

17. The internal investigation Privilege and the internal investigation • There may be times when it will be beneficial for an internal report to be disclosed • The decision as to whether or not such a report should be disclosed should always rest with the company • This option will be lost unless the report is prepared specifically for the dominant purpose, or in contemplation, of any, actual or potential, litigation.

18. Who will be the solicitor’s notional ‘client’ for the purposes of seeking legal advice from internal or external solicitors? • The company’s solicitor, whether internal or external, should then write a letter to the nominated client requesting that an investigation and report be prepared for the purpose of conducting any litigation which may arise from the accident • The report should not be disclosed to a third party without first consulting the company’s solicitor

19. HSE inspectors’ powers