BARBOUR DIRECTORS’ CLUB 8 TH OCTOBER 2015 LONDON

1. BARBOUR DIRECTORS’ CLUB 8TH OCTOBER 2015 LONDON #BarbourDirectors

2. Agenda16.30 – Registration17.00 – Heather Beach, OSH welcome presentation 17.15 – Sentencing Guidelines Presentation           – Anne Davies, Special Counsel, Withers LLP            – Simon Joyston-Bechal, Director, Turnstone Law           – Q & A 18.15 – Barbour presentation 18:30 – Drinks and networking #BarbourDirectors

3. Heather BeachDirector – OSH and Facilities Portfolios, UBM

4. Sentencing Guidelines Presentation Anne Davies, Special Counsel, Withers LLP  Simon Joyston-Bechal, Director, Turnstone Law #BarbourDirectors

5. Barbour Directors Club8th October 2015Sentencing for Health & SafetyCriminal Offences Anne Davies Withers LLP

6. Introduction Who are the Sentencing Council? Inconsistency in sentencing practices for health, safety and food offences. Perception fines too low – average fine in year ending September 2014 £8,225 per offence. Number of cases prosecuted by HSE 2013/14 - 517. Estimated 55 fines in that period over £100k. R v Sellafield C.A. 2014 – reviewed the principles of sentencing corporate offenders. Guidelines for sentencing environmental offences in place since July 2014.

7. Overview of proposed model for sentencing organisations Step 1 – Determining the offence category Step 2 – Starting point and category range Step 3 – Check if fine proposed proportionate to the means of the offender Step 4 – Other factors that may warrant adjustment Step 5-9 – Reduction for guilty plea; totality of fine; compensation; ancillary orders

8. Health & Safety offences, organisations. Step 1 Step 1 – Determining the offence category – Culpability Very high High Medium Low – Harm. 2 stages:- Risk of harm created by the offence (i) exposed a significant number of people. (ii) significant cause of actual harm.

9. Health & Safety offences, organisations. Step 1 Likelihood of harm

10. Health & Safety offences, organisations. Step 2 Step 2 Starting point and category range Micro – Not more than £2m turnover Small –between £2m and £10m turnover Medium –between £10m and £50m turnover Large –£50m and over Very large –not defined Starting point and category range eg Micro – Very high culpability range £150k - £450k Micro – Medium culpability range £60k - £160k Medium – Very high culpability range £1m - £4m Medium – Medium culpability range £300k - £1.3m Aggravating and mitigating features

11. Health & Safety offences, organisations. Steps 3 & 4 Is fine proportionate Other factors to adjust fine not for profit nature of organisation where turnover sits

12. Corporate Manslaughter Step 1 Offence Category How foreseeable was serious injury. How far short of the appropriate standard did the offender fall. How common is this kind of breach in this organisation. Was there more than one death/and serious injury.

13. Corporate Manslaughter Step 2 Starting point and Category

14. Understanding the New Sentencing Guidelines for Health & Safety 8 October 2015 Barbour Directors’ Club Dr Simon Joyston-Bechal

15. Speaker DrSimon Joyston-Bechal Turnstone Law sjb@turnstonelaw.com Mobile: +44 (0) 7880 684 781

16. Overview – New Sentencing Guidelines for Health & Safety – Part II Surprising consequences Impact of Court of Appeal – £100million fines New imprisonment thresholds Practical legal tips to reduce exposure to prosecution

17. Surprising consequences Understanding the impact of culpability factors

18. Culpability Factors for Health & Safety Offences by Organisations

19. Surprising consequences Assessing ‘Likelihood of Harm’ The difference between basing fines on ‘harm risked’ and on actual harm

21. Surprising consequences What about ‘very large organisations’?

23. Corporate manslaughter

24. Court of Appeal – Fines in excess of £100m for very large companies R v Thames Water (June 2015) How to interpret guidelines for organisations with turnover that “very greatly exceeds” £50m? There must not be a “mechanistic extrapolation” of tariff fines Court not bound by starting point and ranges for “Large organisations” Fines for environmental and H&S breaches have often not been adequate to bring home the appropriate message to directors and shareholders “This may well result in a fine equal to a substantial percentage, up to 100%, of the company’s pre-tax net profit … even if this results in fines in excess of £100m. Fines of such magnitude are imposed in the financial services market for breach of regulations.”

25. Culpability Factors for Health & Safety Offences by Individuals

26. Health & Safety Offences by Individuals

27. Practical Legal Tips to Reduce Exposure to prosecution Before an incident occurs: Senior executive training to understand the importance of ‘setting the right tone at the top’ Health & Safety legal review of H&S policy statement and roles and responsibilities document Accident response protocol Avoid aggravating features After an incident: Challenge inappropriate enforcement notices Obtain legal privilege over incident investigation report Support for HSE interviews

28. Senior executive training to understand the importance of ‘setting the right tone at the top’ Senior executive offence of neglect under s37 HSWA (not as proactive as someone in their position ought to have been) Corporate manslaughter offence requires senior management failing, particularly if poor “attitudes, policies, systems or accepted practices” Understanding relevance of IOD Guidance (Leading H&S at Work) - http://www.hse.gov.uk/pubns/indg417.pdf

29. IOD Guidance (Leading H&S at Work) Strong and active leadership from the top Board members should be seen on site, following all H&S measures themselves and addressing any breaches immediately • Appraisals of senior managers should include H&S • Board must ensure adequate resources for H&S • Celebrate good H&S performance

30. H&S Legal Review of Documents Policy Statement – remove common hostages to fortune Roles and responsibilities document – remove common hostages to fortune Accident response protocol – procedure to obtain legal privilege over incident investigation reports and to support employee interviews

31. Understand and Avoid Aggravating Features: Failure to act upon previous warnings or advice from authorities Failure to heed relevant concerns of employees Failure to respond appropriately to “near misses” Cost-cutting at the expense of safety Deliberate conduct Injury to vulnerable persons

32. Challenge Inappropriate Enforcement Notices Fee for Intervention Notice Improvement Notice Prohibition Notice Strict 21 day appeal deadline

33. Incident management – legal privilege Special right to withhold documents/evidence Consult lawyers to seek privilege over the investigation/report Dominant purpose is to obtain legal advice in contemplation of legal proceedings

34. Benefits if report is covered by privilege Privileged documents do not have to be disclosed to Police, HSE, Coroner or personal injury claimants Can chose if requested by HSE to disclose factual findings and keep conclusions privileged Reduces inhibition on casting the net widely to identify failings

35. Support for HSE interviews Interviews without caution Compulsory (s 20) Voluntary Right to have a nominated representative present during the interview Training Interviews under caution – PACE Written representations instead?

36. Summary of Key Points Appreciate new levels of H&S fines that will be retrospective Before an incident occurs: Senior executive training to understand the importance of ‘setting the right tone at the top’ Health & Safety legal review of H&S policy statement and roles and responsibilities document Accident response protocol Avoid aggravating features

37. Summary of Key points (2) After an incident: Challenge inappropriate enforcement notices Obtain legal privilege over incident investigation report Support for HSE interviews

38. Questions? DrSimon Joyston-Bechal Turnstone Law sjb@turnstonelaw.com Mobile: 07880 684 781

39. Turnstone Law Limited2nd floor 107 Cheapside London EC2V 6DNT +44 (0) 20 3056 8856 www.turnstonelaw.com

40. Barbour Presentation Teresa Higgins, Sales Director, Barbour #BarbourDirectors