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The Organisation and me, I!

Directors and Officers liability – representing individuals in a Police/HSE Investigation

Thursday 13th November 2014

Paul Burnley & Andrew Hopkin


Things you never dreamt would happen!

PB


Very few prosecutions of companies and especially Directors and Officers and …

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The Police did not stay around!

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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

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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



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



Why Does it Matter?

• Other– Warwickshire Fire Officers – Public sector staff– Sharon Shoosmith– Cressida Dick



Individual / Corporate Criminal Liability• Offences

– Manslaughter– Health and safety– Misfeasance in public office– Specific senior management offences– The regulators – HSE, EA, FSA, CQC



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?



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



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



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



Then came the Corporate Manslaughter Act

PB


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 ……………

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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!

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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?



Individual / Corporate Criminal LiabilityThe 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



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



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



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



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



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



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



More interviews of Managers/Officers are happening and…

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Arrests of Officers are more likely

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On arrest

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And finally …

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Not always a good idea to be interviewed

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Interviews

• Initial interviews

• Informal interviews

• Section 20 interviews

• Under caution

• Written interview/taped

interviews

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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

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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

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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!

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“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!

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“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!

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Reinforce Mischief to Officers of Being Interviewed on their Own

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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


AH

AH


Other Considerations

• Internal investigation– Interview / statement– Expectation you will cooperate– Legally privileged?– Whose privilege?– Scope?




• 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




• Serious case review– Third party investigators– No privilege– Remit– Publicised– Use at Inquest - case law




• 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




• 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




• Inquest– Questions for Coroner who, when, where and

how• “By what means”• “In what circumstances”

– Scope– Article 2 ECHR– Jury– Preventing future deaths




• 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




• 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




• Post Inquest– Verdict– Letter of representation to regulators– Transcript of Inquest– Media interest




• 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



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



Effect on an Officer as an individual

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The Organisation will blame me – true or false?

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Questions

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Documents

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corporate body

officers liability

body corporate penalties

criminal litigation

individual prosecutions

duty wilful misconduct

public office wilful