BLAKE MORGAN with

1. BLAKE MORGAN with • HEALTH AND SAFETY LEGAL • UPDATE

2. Sentencing Guidelines – Update • Privilege and HSE Investigations • Prohibition Notices - Appeals

3. Paul Rogers • A canter through the Guideline • Some observations by the Court of Appeal

4. Step 1 • Culpability • Very high – deliberate breach • High – fell “far short” of appropriate standard eg failing to put in place mechanisms that are industry standards. Isn’t that nearly every case .. What if isolated failure in a raft of good practice? • Medium – somewhere in between • Low – Not “far short” – significant efforts • Low – what about where minimal or negligible risk; Asbestos; HAVS

5. Court of Appeal Observations • Regina v Electricity North West 2018 • CA reduced a high finding to “between medium and low” • Reference to long time over which breaches subsist not enough absent other features. • If “medium” is between high and low, how can there be a finding of between medium and low ..

6. Harm 1-3 • Seriousness of harm risked by the breach • Does harm arising from the activity have to be foreseen? • What is the likelihood of that harm arising? • Eg Fall from height • What is the seriousness of the harm risked?

7. Court of Appeal • Regina v Electricity North West Ltd • Jury verdicts indicated there was no foreseeable risk of harm from the activity which was working at height clearing vegetation from an electricity pole in circumstances where there had been a suitable risk assessment, and PPE had been provided and the deceased had cut through his own harness. • The jury convicted of Reg 4 WAHRegs – failure to properly plan. • This did not require foresight of harm as it was a strict liability offence. • BUT where no foresight of harm there remains an inherent risk of death from a fall BUT likelihood will be low.

8. Paragraph 2 • Number of people affected • Causation argument – still matters – a lot • Moving up a harm category? • ‘Significant cause’ – more than de minimis • ‘Actions of victims’ – reasonably foreseeable? What if not?

9. Court of Appeal • Where there is a death .. Moving Up • HSE v Whirlpool UK Appliances (Dec 2017) • LCJ “A consistent feature of sentencing policy in recent years, reflected both in statute and judgments of this court, has been to treat the fact of death as something that substantially increases a sentence as required by the second stage of the assessment of harm at step 1. Without more, we consider that the fact of death would justify a move not only into the next category but to the top of the next category range” • Medium co (£10m-50m) Medium culp Harm 2 (Medium likelihood death = £240k (range £220k - £1.1m.) • Move to top of next category (Harm 1) = £2.5m

10. Step 2 • Starting point and category range • Focus on the turnover • Aggravating and mitigating features allow for further adjustment in the category range • Nothing new in the requirement to provide financial information

11. The Table • ‘Very Large Organisations’ – many more than anticipated • ‘…very greatly exceeds the threshold for large organisations’ • May be necessary to move outside the suggested range to achieve a proportionate sentence • What does proportionate mean in this context?

12. ‘Proportionate’ • To the turnover of the company? • To the nature of the offending? • Flip on to Stage 3 – page 10 • Proportionate to the “overall means of the offender” • See the comment about ‘real economic impact’

13. Court of Appeal • R v NPS London Ltd (2019) • NPS parent £125m turnover – large (£50+) • NPS London £5-6m turnover – small (£2m-10m) • Judge had looked at parent and treated the subsidiary as a large company. Error. • “Offending organisation” turnover not any other entity. • BUT • Can be taken onto account at step 3 – proportionality • “going concern” (Tata Steel). NPS London was loss making (£4.5m) but not a reason to reduce the amount

14. Proportionality to what? • Regina v SPR Trailer Services Ltd 2018 • Trailer repair and servicing business • G plea. Death. Fall from Height. • Death risked – harm 2 (Medium Culp) – £54k start, range £25k-£230k) did not move up but moved in range. Started at £220k • Final fine £120k @ £5k per month for 2 years • Small Co (£2-10m) – actual turnover £2.3m; profit before tax £114k, net turnover £85k • Appeal dismissed - £30k per annum ie 4yrs • Whole yr annual profit.

15. Whirlpool • Death • Cat A harm, low risk so cat 3 – low culpability – large organisation with turnover of £672m, £710m • In 2014 had pre-tax profit of £24m; 2015 loss £165m • Guideline start £35k range £10k-£140k • CA said at £700m must have been very large so could move wholly out of the range. • Because of death moved up to Harm cat 3 and to top of that range ie to £250k and then increased again due to turnover to start at £450k less mitigation and plea – final figure £300k • BUT relative to SPR is this proportionate?? • Co had assets of £546m. It’s highest paid director received £480k

16. Human Defendants • Section 37 HSWA – connivance, consent, neglect • of any “director, manager, secretary or similar officer” • body corporate has to offend first • Section 7 – fail to take reasonable care for health and safety of himself and of other persons who may be affected by his acts and omissions at work

17. Guideline • Very high – deliberate • High – actual foresight of or wilful blindness to risk but risk taken • Medium – act or omission which a person exercising reasonable care would not commit • Low – little fault; minor isolated failing • Harm calculation as before • Medium culp – Harm 1 start 26 weeks imprisonment. Range Band F fine, High community order – 12 months impt

18. Examples • Ray Strank Roofing Ltd • Fall from height – died. No proper scaffolding. Director Ray Strank – section 37. 200hrs CSO • TJV Building Co Ltd • Fall from height. No risk assessment or fall from height measures. Director 8 months prison sentence susp 2yrs • Christal Clear properties and Anthony Ham • Fall from height – 12 weeks impt susp 12 months • Panagiotides • 200hrs CSO – accident with digger – section 7.

19. Privilege

20. When does it arise? • “criminal legal proceedings were reasonably in its contemplation” • Whose privilege is it? • Client – often the company not the individual • Eg worker provides a witness statement about the events to the company lawyer, privilege is that of the company if it exists at all. • When are those proceedings reasonably in contemplation? • Is it when HSE come to investigate? What if serve notice of contravention or prohibition/improvement notice?

21. SFO V EURASIAN NATURAL RESOURCES • R V JUKES • SFO V ENR (CA)

22. SFO (Trial) • SFO pre-investigation • Judge said “the reasonable contemplation of a criminal investigation does not necessarily equate to the reasonable contemplation of a prosecution.” • “Criminal proceedings cannot be reasonably contemplated unless the prospective defendant knows enough about what the investigation is likely to unearth, or has unearthed, to appreciate that it is realistic to expect a prosecutor to be satisfied that it has enough material to stand a good chance of securing a conviction”

23. What about an internal investigation? • Unless it is made in privileged circumstances ie within the umbrella of legal advice/contemplated litigation with a lawyer it is likely not privileged. • This means it is potentially disclosable to HSE/LA investigators. • Eg root cause investigations • CALL YOUR LAWYERS AND INSURERS AS SOON AS YOU HAVE AN ACCIDENT TO GET ADVICE

24. SFO V ENR (CA) • CA said the judge below was wrong: • On the facts – • “where the SFO specifically makes clear to the company the prospect of its criminal prosecution (over and above the general principles set out in the Guidelines), and legal advisers are engaged to deal with that situation, as in the present case, there is a clear ground for contending that criminal prosecution is in reasonable contemplation.” • BUT not every investigation will lead to the contemplation of legal proceedings .. • The fact a party contemplating proceedings needs to make enquiries to determine if proceedings are likely does not prevent of itself proceedings being in reasonable contemplation

25. R v Jukes • CA Criminal Division • Mr Jukes had made a S9 witness statement to lawyers for the company. • In it he admitted “I took over formal responsibility for health and safety”. This was made 6 weeks after the accident. • 15 months later he was interviewed by police and HSE when he said something else. He denied he had formal responsibility. • Later the statement made after the accident came to light and HSE wanted to use it as evidence against him. • Allowed to do so – and CA agreed it was NOT privileged and even if it was it was not his privilege

26. Service of Prohibition/Improvement/Contravention • Will be served (section 21 HSWA) • If an inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions OR • Has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated. • Section 22 - prohibition notices • Reg 23 H&S Fees Regs 2012 – a person is contravening or has contravened ..

27. APPEALS OF PN - STANDARD • HM Inspector of Health and Safety v Chevron North Sea Ltd • SC • “The appeal is not against the inspector’s opinion but against the notice itself, as the heading of section 24 indicates.” • Evidence is not confined to what was or should have been available to the inspector at the time of his opinion. • Evidence can include such that shows that there was no risk at the material time .. Ie what was the risk at the time in fact even if material showing this has come to light subsequently

28. QUESTIONS?