BLG INTERNATIONAL MARINE CLAIMS CONFERENCE Dublin 27 October 2005 Tim Taylor Barlow Lyde & Gilbert Tim Taylor Barlow Lyde & Gilbert

BLG The Right to Remain Silent Fact or Fiction?

BLG Fifth Amendment 1781  No person …………………shall be compelled in any criminal case to be a witness against himself

BLG The Miranda Warning You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements.

BLG England  nemo tenetur seipsum accusare  'no man is bound to accuse himself‘  Judges Rules 1912  Before then police could pressurise suspects to obtain confessions  Police & Criminal Evidence Act 1984 Section 78  nemo tenetur seipsum accusare  'no man is bound to accuse himself‘  Judges Rules 1912  Before then police could pressurise suspects to obtain confessions  Police & Criminal Evidence Act 1984 Section 78

BLG Criminal Justice & Public Order Act 1994  Changed the caution  Adverse inferences can be drawn from silence "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."  Changed the caution  Adverse inferences can be drawn from silence "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

BLG Merchant Shipping Act 1995 Section 259 An inspector  may require any person who he has reasonable cause to believe is able to give any information relevant to any examination or investigation  (i) to attend at a place and time specified by the inspector, and  (ii) to answer (in the absence of persons other than any persons whom the inspector may allow to be present and a person nominated to be present by the person on whom the requirement is imposed) such questions as the inspector thinks fit to ask, and  (iii) to sign a declaration of the truth of his answers; An inspector  may require any person who he has reasonable cause to believe is able to give any information relevant to any examination or investigation  (i) to attend at a place and time specified by the inspector, and  (ii) to answer (in the absence of persons other than any persons whom the inspector may allow to be present and a person nominated to be present by the person on whom the requirement is imposed) such questions as the inspector thinks fit to ask, and  (iii) to sign a declaration of the truth of his answers;

BLG Self Incrimination?  Human Rights Convention  How about Article 6  No help at all  R v Hertfordshire County Council ex parte Green [2000]  Human Rights Convention  How about Article 6  No help at all  R v Hertfordshire County Council ex parte Green [2000]

BLG And if he Refuses 260.—(1) A person who— (a) intentionally obstructs an inspector in the exercise of any power available to him under section 259; or (b) without reasonable excuse, does not comply with a requirement imposed in pursuance of section 259 or prevents another person from complying with such a requirement; shall be liable— on conviction on indictment, to imprisonment for a term not exceeding two years, or an [unlimited] fine or both 260.—(1) A person who— (a) intentionally obstructs an inspector in the exercise of any power available to him under section 259; or (b) without reasonable excuse, does not comply with a requirement imposed in pursuance of section 259 or prevents another person from complying with such a requirement; shall be liable— on conviction on indictment, to imprisonment for a term not exceeding two years, or an [unlimited] fine or both

BLG Other Powers  Search and inspection of any ship or premises  Production of documents, crew lists and logs  Samples  Seize computer hard drives  Search and inspection of any ship or premises  Production of documents, crew lists and logs  Samples  Seize computer hard drives

BLG Help Section 259 (12) No answer given by a person in pursuance of a requirement imposed ……………. shall be admissible in evidence against that person or the husband or wife of that person in any proceedings Section 259 (12) No answer given by a person in pursuance of a requirement imposed ……………. shall be admissible in evidence against that person or the husband or wife of that person in any proceedings

BLG The Merchant Shipping (Accident Reporting and Investigation) Regulations 2005  In force 18 April 2005  Positive duty to report accidents  Changes  A legal adviser can attend the interview but must be acting solely for the witness  In force 18 April 2005  Positive duty to report accidents  Changes  A legal adviser can attend the interview but must be acting solely for the witness

BLG Practical Problems Following Casualties  Conflicts between owners and crew  The same lawyers cannot properly look after the crew  Risk of “cut throat defence”  “It wasn’t me guv, it was him”  Statutory protection illusory  Questions for marine liability insurers  How far are you prepared to go to assist seafarers?  How far should you go?  Conflicts between owners and crew  The same lawyers cannot properly look after the crew  Risk of “cut throat defence”  “It wasn’t me guv, it was him”  Statutory protection illusory  Questions for marine liability insurers  How far are you prepared to go to assist seafarers?  How far should you go?

BLG Insurance Issues  Increased criminalisation  Arrests all over the world  Corporate Killing  Focus on Coverage  Increased criminalisation  Arrests all over the world  Corporate Killing  Focus on Coverage

BLG Does Insurance Cover Criminal Activity?  “Of course not”  Public policy issues  P & I Clubs do provide pollution cover  Chief Constables can insure for vicarious liability (Lancashire CC v Municipal Mutual 1996)  “Of course not”  Public policy issues  P & I Clubs do provide pollution cover  Chief Constables can insure for vicarious liability (Lancashire CC v Municipal Mutual 1996)

BLG What if the offence involves the directing mind  Lack of fortuity  Assured engages in conduct where he knows or takes a calculated risk as to whether it is legal  Developing area of law  Lack of fortuity  Assured engages in conduct where he knows or takes a calculated risk as to whether it is legal  Developing area of law

BLG

Regulation of Insurance  Insurance Industry in UK now regulated  By the FSA since January 2005  What this means is that senior executives are held accountable for the effective and responsible running of their firms  Insurance Industry in UK now regulated  By the FSA since January 2005  What this means is that senior executives are held accountable for the effective and responsible running of their firms

BLG Senior Management Responsibilities  The Principles of Business  Approved Persons Regime  Apportionment & Oversight  Systems and Controls  The Principles of Business  Approved Persons Regime  Apportionment & Oversight  Systems and Controls

BLG Senior Manager Behaviour  Exercise due skill, care and diligence  Take reasonable steps to ensure business of firm complies with the requirements of the regulatory system  Monitoring and reporting lines  Paper trails  Exercise due skill, care and diligence  Take reasonable steps to ensure business of firm complies with the requirements of the regulatory system  Monitoring and reporting lines  Paper trails

BLG Penalties  Culture of owning up  Identify the problem and tell FSA what is being done  Fines  Removal of approval/loss of livelihood  Culture of owning up  Identify the problem and tell FSA what is being done  Fines  Removal of approval/loss of livelihood

FailingWhat the FSA saidConsequences Misrepresenting transactions company accounts; failure of directors to act with honesty and integrity. "All of these individuals abused their positions and as such they are not fit and proper to work again in. senior positions in the UK insurance market. Nobody should doubt our resolve to deal with any similar instances in the most robust manner available to us." Former directors prohibited from performing any management function. Compliance failings; policies, procedures and their monitoring found to be inadequate and incomplete. "If a compliance department is to be fully effective, it needs to keep up to date with the regulatory requirements and market developments." Corporate fine (£100,000s). Failure to inform FSA of material issue."The FSA sets high standards by which we judge senior management. This includes the requirement that individuals deal with the FSA in an open and co-operative way. Where behavior falls below our high standards we will take the necessary action to make sure customers are protected and markets properly informed." Individual fine (£10,000s) and prohibited.

BLG What Does this Mean?  Companies have a duty to be open with the FSA  Individuals have a duty to be open with the FSA  Culture of confessing sins  Good reason  It reduces fines  Halts even closer examination  What about individuals?  Companies have a duty to be open with the FSA  Individuals have a duty to be open with the FSA  Culture of confessing sins  Good reason  It reduces fines  Halts even closer examination  What about individuals?

BLG Dangers  Potential for huge conflict with between employer and employee  How can employee get separate advice?  Who will pay for it?  Potential for huge conflict with between employer and employee  How can employee get separate advice?  Who will pay for it?

FSA suspects face arrest The Financial Services Authority (FSA), the UK's stock market watchdog, is to use its power to have those suspected of criminal market abuse arrested. Under an agreement reached last week, the City of London police - responsible for law enforcement in the capital's financial district - will, at the FSA's request, detain individuals suspected of criminal offences. Although the FSA was given the power to have suspects detained under the 2000 Financial Services and Markets Act, the watchdog has until now made no attempt to exercise it. The FSA's new hardline approach is designed to make its investigations into cases of fraud and market abuse more effective. It comes in response to a decline in the number of individuals agreeing to be interviewed voluntarily. "In the absence of a voluntary interview, we can now have people arrested and questioned," an FSA spokeswoman said FSA suspects face arrest The Financial Services Authority (FSA), the UK's stock market watchdog, is to use its power to have those suspected of criminal market abuse arrested. Under an agreement reached last week, the City of London police - responsible for law enforcement in the capital's financial district - will, at the FSA's request, detain individuals suspected of criminal offences. Although the FSA was given the power to have suspects detained under the 2000 Financial Services and Markets Act, the watchdog has until now made no attempt to exercise it. The FSA's new hardline approach is designed to make its investigations into cases of fraud and market abuse more effective. It comes in response to a decline in the number of individuals agreeing to be interviewed voluntarily. "In the absence of a voluntary interview, we can now have people arrested and questioned," an FSA spokeswoman said

BLG Questions for You?  Am I aware of the risks of being caught up in an inquiry?  Who can I count on for support?  Who will pay the fees?  Can I access the Directors’ and Officers Policy?  Is there really a right to remain silent anymore?  Am I aware of the risks of being caught up in an inquiry?  Who can I count on for support?  Who will pay the fees?  Can I access the Directors’ and Officers Policy?  Is there really a right to remain silent anymore?