Prosecutions seminarJanuary 2016, Exeter

Enforcement basics• Regulators’ Code 6 April 2014• Six core objectives

– Support– Engagement– Risk-based regulation– Information sharing– Clarity of Information– Transparency

Regulators’ Code• Transparency includes published Enforcement

Policy• Non-compliance

– Complaint to Ombudsman– Potential abuse of process

• You need to know your Policy

National LA Enforcement Code for Health and Safety at Work• May 2013• ‘ it is designed to ensure that LA health and

safety regulators take a more consistent and proportionate approach to enforcement’

• It details what is expected of LAs in the H&S field and what the LAs can expect from the HSE

• Peer review

Nigel Immediate challenges in the hours and

days after an incident Identifying the suspect Interview under caution –

Immediate challenges• Collecting evidence

• Powers of entry

• Compulsory powers

Immediate challenges• Collecting evidence issues depends on the

authority;

• Health and Safety Legislation HSWA – HSE • Regulatory Reform Fire Safety Order 2005 –

Fire Authorities• Environment Agency ; EPA• Local Authorities; eg Food hygiene

Immediate challenges• Collecting evidence• Obtaining admissible evidence• Witness statements• Immediate practical steps• Act quickly to progress your case• Be clear as to identity of persons you need to speak to• Assess suitable person within an organisation to liaise with• Log all documents seized• Think ahead

Immediate challenges• Need to exercise powers of entry ?

• A power of entry is a statutory right for a person (usually a state official such as a police officer, local authority trading standards officer or a member of enforcement staff of a regulatory body) to legally enter defined premises, such as businesses, vehicles or land for specific purposes.

Immediate challenges• Powers of entry

• On 8 December 2014 the Home Secretary laid before Parliament a new code of practice on powers of entry. Following the approval of Parliament, the code came into force on 6 April 2015.

• You must have regard to this new code before, during and after exercising powers of entry (unless the exercise of that power is subject to another statutory code of practice - for example, Police and Criminal Evidence Act (PACE) Code B).

• The code provides guidance and sets out considerations that apply to the exercise of powers of entry including, the need to minimise disruption to a business and will ensure greater consistency in the exercise of powers of entry and greater clarity for those affected by them while upholding effective enforcement

Immediate challenges• Compulsory powers• Powers of HS Inspectors eg Section 20 HSWA

• To be construed widely “as obviously intended to cover wide powers” London Borough of Wandsworth v South Western Magistrates Court 2003 EWHC1158

• Can be made orally or in writing• Production of authorisation• Exercisable at a reasonable time

Immediate challenges• 20(2)(j)

• To require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (d) above to answer (in the absence of persons other than a person nominated by him to be present and any persons whom the Inspector may allow to be present) such questions as the Inspector thinks fit to ask and to sign a declaration of the truth of his answers

Immediate challenges• Compulsory powers Article 27 Regulatory

Reform Fire Safety Order 2005 • “May do anything necessary for the purpose

of carrying out the order”……

• Enter any premises• Make such enquiry• Require the production of such material/ documents• Provide such facilities• Take such samples• Remove/ dismantle to test/ examine

Identifying the suspect• Individuals• Employees• Owners / Occupiers• Partnerships• Companies• Body corporate• Directors and Section 37

Identifying the suspect• Section 37 HSWA• “Where an offence under any of the relevant statutory

provisions committed by a body corporate is proved to have been committed within the consent or connivance of, or to have been attributable to any neglect on the part of any manager, secretary or other similar officer of the body corporate … .”

• Director / manager offences under other legislation• Employee offences under other legislation eg Regulation 23

Fire Safety Order

Interview under caution• General• Code C of PACE• “A person whom there are grounds to suspect an

offence must be cautioned before any questions are put about an offence”

• Pertinent when have a suspect and want to interview

• A person need not be cautioned if questions are for other necessary purposes

Interview under caution• Importance of caution

• Evidence secured during interview

• Fairness to the accused

• Likely to be deemed inadmissible

• Two scenarios, – 1. At your offices, – 2. During inspection

Interview under caution• Witness or suspect

• Code C:10:1

• “Grounds of suspicion falling short of evidence supporting a prima facie case of guilt” R v Nelson and Rose 1988 2 CrAPP(R)399 CA

• Can caution during Section 9 if necessary

• Conversion of transcript into witness statement

Interview under caution• At your offices

• Letter to suspect• Will have identified status by then – address correctly• As representative or as individual• Outline offences / brief details / indicate can have legal

advice• May get a request for areas of questioning• Tape recorded will be in accordance with Code C and Code

E PACE

Interview under caution

• Plan interview• What do we need to prove? / notes will be unused• Only one at a time. If company confirm entitle to speak on behalf of

company, if 2• Verify status of employer / owner, etc• Put our evidence to suspect• Identify any deficiencies and pursue• Tackle suspects comments• Transcript will be required• Tapes kept secure• Non attendance? The written substitute

Interview under caution• At premises during inspection

• Should comply with Code C• Necessary?• Your role is to gather evidence• Should be able to provide independent of Defendant• Could hinder if conviction• Should be asking questions of witnesses to establish facts• Risk is inadmissible – problem?• If individual “rambling” then consider but do not interview

Interview under caution• Defence tactics;• Delay• Non cooperation• Disclosure demands• Written statement under caution• If any of the above set a date and then make

charging decision….subsequent inferences at trial

Dale• Decision to prosecute• Drafting effective case summaries and

Friskies Schedules• The reluctant defendant • Sentencing • Costs

Decision to prosecute

• The Code for Crown Prosecutors– Evidential test– Public interest test

Evidential test• Realistic prospect of a conviction• Know the legislation

– understand each ‘point to prove’• Remember identification• Understand the ‘mental element’• Burden of proof

– All elements of an offence must be proven beyond reasonable doubt

• Pursue all reasonable lines of inquiry• Anticipate the defence

Evidential test• Understand / know the legislation

– Constituent elements of any offence, ie a prosecution for failure to properly risk assess :

“A employer failed to conduct an suitable and sufficient risk assessment”

Public Interest• Code for Crown Prosecutors

– Proportionate costs of prosecution– Choosing defendants

• Record of decision and reasons– Refer to enforcement policy– Refer to relevant guidance– Why not alternatives?

Public Interest• Public Interest Factors

– Intent– Foreseeability– Environmental Effect– Nature of the Offence– Financial Implications– Deterrent Effect– Previous History– Attitude of Offender– Personal Circumstances

Selection of charge• Seriousness and extent of offending• Make sure it exists in law!• Make sure it is correctly worded• Consider dates of the offence

Case summary and Friskies• How long and how detailed?• Content of Friskies

– R v Howe– Magistrates’ Court Guideline– New Sentencing Guidelines

• What not to put in

Basis of Plea and other diversions!• Request for unused material before plea

– No!– Or more helpful

• How to respond to the Basis– Carefully– Identify issues between you– Newton?

Sentencing• For offences prior to 12 March 2015, fines payable on

conviction in the magistrates' court were capped at either a statutory maximum of £5,000 or a higher amount where legislation provides for it, for example:

Environmental offences were capped between £5,000 and £50,000.

Health and safety offences were capped at £20,000.

• Cap lifted on fines for offences from 12 March 2015

Effect of section 85• In the Sentencing Council’s guidelines

Magistrates’ Courts are advised that “In general, either way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient”.

• Whilst the Court will continue to commit where a lengthy custodial sentence is likely, the changes permit the Court to retain jurisdiction where previously they were likely to decline. 

• Is this a problem?

Sentencing Guidance• 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.

• Magistrates’ Court Sentencing Guideline

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

• Encouraged by– The recent case of R v Sellafield and Network Rail in which the

Court of Appeal reviewed the principles of sentencing corporate offenders and reiterated the need to sentence large organisations with significant fines

– The creation of sentencing guidelines for environmental offences; and

– The arrival of law that will give the magistrates' court unlimited sentencing powers

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

• Firstly, the court will need to determine the category of offence• Secondly, the court will then need to establish the starting point of

the sentence• Thirdly, continue with usual rules of mitigation and credit for plea• Examples

– a large organisation that commits an offence with the greatest exposure to harm (a fatal accident for instance) and with high culpability will see a sentencing range of £2,600,000 - £10,000,000.

– Individuals that commit serious offences with high culpability can expect custodial sentences or high fines where profit was a motivating factor in the commission of the offence.

Environmental Sentencing Guideline• On 26 February 2014, the SC published its new Environmental

Offences - Definitive Guideline for the sentencing of environmental offences.

• The Guideline is for use by both judges and magistrates from 1 July 2014 (regardless of the date of the offence).

• Guideline sets out a 12-step sentencing process to – punish offenders, – prevent reoffending and – remove financial gain, while ensuring a consistent approach by courts in England and Wales.

• 12 step process for both corporates and individuals (slightly different)

Penalties• Fines in the Magistrates’ and Crown Court

– Financial Circumstances Order Section162 CJA 2003

• Imprisonment– A court can order a custodial sentence for certain more

serious environmental/safety/fire offences. • Directors Disqualification Order• POCA

POCA 2002• One of the most powerful tools in punishing

and deterring crime carried out for profit• Relates only to criminal conduct• Can be part of criminal proceedings• Can be separate, civil proceedings

POCA• POCA in criminal proceedings – Confiscation

Orders– Two different types:

Benefit from particular criminal conduct Benefit from general criminal conduct

– Crown Court only Prosecution can require committal, even of

summary only cases– Generally follows sentencing exercise

POCA• Amount of any Confiscation Order

– = the benefit from the criminal conduct– Unless the defendant can show that available

amount is less– Available amount is total of value of all

property owned by defendant and all ‘tainted gifts’

Gifts made within 6 years of start of proceedings Gifts of property obtained by criminal conduct Includes transfers significantly below value

POCA• Confiscation procedure

– Generally at prosecution request– Prosecution provides a statement of

information to assist Court to decide: Criminal lifestyle (if relevant) Any benefit Generally written by accredited Financial

Investigator– Defendant must respond to all aspects of the

statement and provide information ordered by Court

POCA• Confiscation payments

– No more than 6 months given to pay– Imprisonment in the absence of payment,

which can be for a significant period of time– Various enforcement powers

POCA• Get advice early• Examples

Costs• Prosecution costs must be “just and

reasonable”• Criminal Procedure Rules rule 76.2 – relevant factors in

assessing costs include– Conduct of all the parties– the particular complexity of the matter or the difficulty or novelty of the

questions raised;– the skill, effort, specialised knowledge and responsibility involved;– the time spent on the case;

• R v Associated Octel Limited (1996)– Investigation costs

Costs• R v Martyn Crute [2011] EWCA Crim 3233

– Fined £2,000 for gas safety offence– Prosecution costs of £41,000– £10,000 as a result of D’s conduct– Nature & complexity of case relevant– Court of Appeal held £15,000 not grossly disproportionate, in

circumstances– Awarded £25,000 to reflect both amounts– Failure to provide financial documentation justifies Court assuming

sufficient means

Maximising costs• Practical steps to maximise costs

– Good record of how costs incurred– Consider whether D’s actions has increased it– If high, consider why– Consider what costs are associated with each defendant– Request financial information in advance of hearing if concerned– Consider Financial Circumstances Order application

Wasted costs• S19 Prosecution of Offences Act 1985

– Not strictly “wasted costs”– Awarded to a party against another party– Can be awarded against prosecution or defence– “Party” does not include representatives– Costs incurred as a result of an unnecessary or improper act or

omission– Must be for specified sum– Cannot be appealed except by way of Judicial Review

Wasted costs• Applications likely to increase?• Legal Aid, Sentencing and Punishment of Offenders

Act 2012– Limits defendants’ recourse to costs from central funds– Legal Aid rates in Magistrates’ Court– No longer available in Crown Court– Led to increase in “wasted costs” applications from privately

funded defendants

Wasted costs• R (Maninder Singh) v Ealing MC & CPS [2014] EWHC

1443 (Admin)– Can be awarded for prosecution “not conducting the case

properly”– Improper does not connote “grave impropriety”– Can include mistakes not just intentional acts– Need not be repeated – a single failure can suffice– Pressure on prosecution resources is not a reason not to award

Wasted costs• R v P [2011] EWCA Crim 1130

– Should not normally result from mere disapproval of prosecution decision

– May do so in extreme examples– Remains a discretion even if remainder of test

satisfied

Wasted costs• Additional examples:

– Most likely to arise where a delay in acting leads a defendant to incur unnecessary costs

– Recently awarded where Judge found no case to answer– Recently awarded where plea offered at first appearance was

accepted on eve of trial– May also relate to individual hearings if they are ineffective due

to lack of preparation

Wasted costs• Practical steps to avoid “wasted costs”

– Ensure file and instructions to advocates are sufficient– Document any delays resulting from defence action– Flag likely difficulties meeting deadlines with Court

early to avoid hearings– Ensure reasoning behind case decisions is clear

Contact us…

Dale Collins t +44 (0)1392 458770 e dale.collins@brownejacobson.com

Nigel Lyonst +44 (0)1392 458731 e nigel.lyons@brownejacobson.com