1. www.emlawshare.co.uk The Organisation and me, I! Directors and Officers liability – representing individuals in a Police/HSE Investigation Thursday 13 th November 2014 Paul Burnley & Andrew Hopkin

2. www.emlawshare.co.uk Things you never dreamt would happen! PB

3. www.emlawshare.co.uk Very few prosecutions of companies and especially Directors and Officers and … PB

4. www.emlawshare.co.uk The Police did not stay around! PB

5. www.emlawshare.co.uk Why Does it Matter? Individual prosecutions are rare But you may have a number of possible roles –Steering the corporate body –Providing a witness statement –Giving evidence at an Inquest –Being interviewed under caution –A defendant in a trial All the above present a challenge www.emlawshare.co.uk AH

6. www.emlawshare.co.uk Why Does it Matter? Consequences of criminal investigation –Lengthy civil or criminal litigation – 5 years + –Interview under caution –Prosecution – fine, costs, prison –Inquest –Suspension – disciplinary –Press interest www.emlawshare.co.uk AH

7. www.emlawshare.co.uk Why Does it Matter? Gillian Beckingham –Mid level manager –Legionnella outbreak –Council prosecuted – guilty plea –GB faced manslaughter x 7 –Convicted of Section 7 –Fined £15,000 – non imprisonable at the time www.emlawshare.co.uk AH

8. www.emlawshare.co.uk Why Does it Matter? Other –Warwickshire Fire Officers –Public sector staff –Sharon Shoosmith –Cressida Dick www.emlawshare.co.uk AH

9. www.emlawshare.co.uk Individual / Corporate Criminal Liability Offences –Manslaughter –Health and safety –Misfeasance in public office –Specific senior management offences –The regulators – HSE, EA, FSA, CQC www.emlawshare.co.uk AH

10. www.emlawshare.co.uk Individual / Corporate Criminal Liability Manslaughter –Duty of care –Was the D in breach? –Did breach cause death? –Can breach be described as grossly negligent and therefore a crime? www.emlawshare.co.uk AH

11. www.emlawshare.co.uk Individual / Corporate Criminal Liability Section 7 –Duty upon employees –Re acts or omissions –To take reasonable care for themselves –And others affected by their acts or omissions –Penalties – fine and imprisonment www.emlawshare.co.uk AH

12. www.emlawshare.co.uk Individual / Corporate Criminal Liability Section 37 –“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 …” –Penalties – fine and imprisonment www.emlawshare.co.uk AH

13. www.emlawshare.co.uk Individual / Corporate Criminal Liability Misfeasance in public office –Wilful neglect to perform duty –Wilful misconduct which amounts to an abuse of trust –Wilful means deliberate as opposed to accidental www.emlawshare.co.uk AH

14. www.emlawshare.co.uk Then came the Corporate Manslaughter Act PB

15. www.emlawshare.co.uk The new offence Organisations will be guilty if: The way in which their activities are managed or organised by its Senior Managers/Officers; Causes a person’s death; and Amounts to a gross breach of a duty of care owed to the Deceased…. but …………… PB

16. www.emlawshare.co.uk Who is a senior manager? Someone who plays a significant role in the organisation in the making of decisions about how the whole or a substantial part of its activities are to be managed or organised or someone who is actually managing or organising those activities Police/HSE taking a very liberal view of who is a Senior Manager! Still no big Court case! Pinpointing of Managers! PB

17. www.emlawshare.co.uk Individual / Corporate Criminal Liability How do you assess Gross Breach? The jury must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation. The strategic approach of an organisation will also be scrutinised. Did the conduct fall far below what can reasonably be expected of the organisation in the circumstances? www.emlawshare.co.uk AH

18. www.emlawshare.co.uk Individual / Corporate Criminal Liability The Jury may – Consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure as is mentioned in s(2), or to have produced tolerance of it Have regard to any health and safety guidance that relates to the alleged breach www.emlawshare.co.uk AH

19. www.emlawshare.co.uk Managing A Criminal Investigation Police –Work Death Protocol –Primacy with Police –Manslaughter and Corporate Manslaughter –Power of arrest –Interview under caution –Decisions with specialist CPS unit www.emlawshare.co.uk AH

20. www.emlawshare.co.uk Managing A Criminal Investigation HSE –Work to support the Police –Primacy will pass –Specific offences ie Section 37 / 7 –Looking at systems and processes –Compulsory powers –Policy for prosecution of individuals www.emlawshare.co.uk AH

21. www.emlawshare.co.uk Managing A Criminal Investigation Who else might be involved? –Coroner –Claimants –Insurers –Third parties ie press / FOI –Internal investigation –Disciplinary investigation –Serious case review –Ombudsman www.emlawshare.co.uk AH

22. www.emlawshare.co.uk Managing A Criminal Investigation Who will they want to speak to –Witnesses to incident –Junior staff re culture –Those with a responsibility for health and safety management or development –Senior managers – operational and non operational www.emlawshare.co.uk AH

23. www.emlawshare.co.uk Managing A Criminal Investigation Documents of interest re individuals –Health and Safety Policy setting out roles and responsibilities –Minutes of health and safety committee meetings –Minutes of management meetings –Details of health and safety qualifications –Internal investigation report –Safeguarding minutes www.emlawshare.co.uk AH

24. www.emlawshare.co.uk Managing A Criminal Investigation How might you be involved –Suspect Head of department Decision maker –Witness Part of senior management (CMCA) To assist the Coroner www.emlawshare.co.uk AH

25. www.emlawshare.co.uk More interviews of Managers/Officers are happening and… PB

26. www.emlawshare.co.uk Arrests of Officers are more likely PB

27. www.emlawshare.co.uk On arrest PB

28. www.emlawshare.co.uk On arrest PB

29. www.emlawshare.co.uk On arrest PB

30. www.emlawshare.co.uk And finally … PB

31. www.emlawshare.co.uk Not always a good idea to be interviewed PB

32. www.emlawshare.co.uk Interviews Initial interviews Informal interviews Section 20 interviews Under caution Written interview/taped interviews PB

33. www.emlawshare.co.uk Informal/voluntary interviews Do not have to attend Can refuse to answer any question Can have someone in with you Written statement format Entitled to a copy of the statement Can walk out at any time Cannot be used as evidence against you PB

34. www.emlawshare.co.uk Interview under Caution Occurs if Police/HSE believe the individual has committed an offence Do not have to attend Caution has to be given Entitled to have someone with you (lawyer) Can refuse to answer any question Can walk out at any time Not under arrest Interview is normally taped Entitled to a copy of the CD Can be used in evidence against you and the company PB

35. www.emlawshare.co.uk Section 20 Interviews Compulsory attendance Cannot refuse to answer any question Allowed someone in with you if you ask Written statement format Not entitled to a copy of your statement but ask! Cannot leave at any time Cannot be used against you but can against the organisation! PB

36. www.emlawshare.co.uk “Golden” Rules Ask what kind of interview it is Have someone with you Don’t guess Don’t assume someone else’s role Answer the question – keep it short! Understand the question Don’t be bullied! PB

37. www.emlawshare.co.uk “Golden” Rules – Part Deux! Stick to the facts – don’t give opinions! After an hour, take a break Don’t be afraid to change your mind Read your written statement – slowly! If you disagree with what’s written, say so Ask for a copy – there and then Don’t “chit chat” after the interview! PB

38. www.emlawshare.co.uk Reinforce Mischief to Officers of Being Interviewed on their Own PB

39. www.emlawshare.co.uk Interviews with the Regulators Practical implications of conflict –Funding – capped? –Working with employers lawyers –Access to paperwork –Keep under review re Inquest –Disclosure and discussion with employers www.emlawshare.co.uk AH

40. www.emlawshare.co.uk Other Considerations Internal investigation –Interview / statement –Expectation you will cooperate –Legally privileged? –Whose privilege? –Scope? www.emlawshare.co.uk AH

41. www.emlawshare.co.uk Other Considerations Internal investigation - Practical challenges –Tension for individual between criminal investigation and learning lessons –Maybe publicised / disclosed to regulators –May lead to disciplinary action –Maybe conducted independently –Refuse or written statement –Section 78 PACE - admissibility www.emlawshare.co.uk AH

42. www.emlawshare.co.uk Other Considerations Serious case review –Third party investigators –No privilege –Remit –Publicised –Use at Inquest - case law www.emlawshare.co.uk AH

43. www.emlawshare.co.uk Other Considerations Disciplinary –May be proposed immediately after incident or internal investigation –Employer may be keen to progress subject to view of regulators –Potential lengthy delay and costs –Managed on case by case basis www.emlawshare.co.uk AH

44. www.emlawshare.co.uk Other Considerations Inquest –In reality inextricably linked to criminal investigation –Should Inquest precede or post date investigation / prosecution –HSE and Police are properly interested persons –A very important exercise in terms of the risk of prosecution –May or not be held post prosecution www.emlawshare.co.uk AH

45. www.emlawshare.co.uk Other Considerations Inquest –Questions for Coroner who, when, where and how “By what means” “In what circumstances” –Scope –Article 2 ECHR –Jury –Preventing future deaths www.emlawshare.co.uk AH

46. www.emlawshare.co.uk Other Considerations Inquest – practical steps –Confirm interest with Coroner –Ensure PIP status –Engage with HMC and other PIP’s –Importance of PIR’s –Argue for disclosure –Consider proposing witnesses www.emlawshare.co.uk AH

47. www.emlawshare.co.uk Other Considerations Inquest – practical steps –Understanding Coroners interest in you –Preparing careful and focused statement for HMC –Will be distributed to other PIP’s –Preparation for giving evidence –Recommend attendance in early days of Inquest www.emlawshare.co.uk AH

48. www.emlawshare.co.uk Other Considerations Post Inquest –Verdict –Letter of representation to regulators –Transcript of Inquest –Media interest www.emlawshare.co.uk AH

49. www.emlawshare.co.uk Other Considerations Criminal trial –Bail –Crown Court proceedings –Full disclosure of case against you –Detailed instructions including consideration of unused material –Preparation for giving evidence – the limits –Costs recovery www.emlawshare.co.uk AH

50. www.emlawshare.co.uk Concluding Remarks Individual prosecutions rare but managing the process is key Keep a focus on your role –includes ensuring proper investigation and developing / changing systems where necessary Keep good notes and records –These may be discloseable Keep under review www.emlawshare.co.uk AH

51. www.emlawshare.co.uk Effect on an Officer as an individual PB

52. www.emlawshare.co.uk The Organisation will blame me – true or false? PB

53. www.emlawshare.co.uk Questions PB