The Organisation and me, I!
Directors and Officers liability – representing
individuals in a Police/HSE Investigation
Thursday 13th November 2014
Paul Burnley & Andrew Hopkin
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Things you never dreamt
would happen!
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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
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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
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Why Does it Matter?
• Other
– Warwickshire Fire Officers
– Public sector staff
– Sharon Shoosmith
– Cressida Dick
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Individual / Corporate Criminal
Liability
• Offences
– Manslaughter
– Health and safety
– Misfeasance in public office
– Specific senior management offences
– The regulators – HSE, EA, FSA, CQC
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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?
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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
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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
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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
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Then came the Corporate
Manslaughter Act
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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?
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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
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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
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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
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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
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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
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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
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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
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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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On arrest
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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
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Other Considerations
• Internal investigation
– Interview / statement
– Expectation you will cooperate
– Legally privileged?
– Whose privilege?
– Scope?
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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
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Other Considerations
• Serious case review
– Third party investigators
– No privilege
– Remit
– Publicised
– Use at Inquest - case law
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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
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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
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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
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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
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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
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Other Considerations
• Post Inquest
– Verdict
– Letter of representation to regulators
– Transcript of Inquest
– Media interest
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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
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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
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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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