2 Hare Court Criminal Regulatory Group Newsletter
Welcome to the latest edition of the 2 Hare Court Criminal Regulatory Newsletter
Editor
Welcome to the Autumn Edition of 2 Hare Court’s Criminal Regulatory Newsletter.
The Criminal Regulatory Team are delighted that Chambers has been shortlisted for three awards by Chambers and Partners including Health and Safety Set of The Year and Health and Safety Silk of The Year. Congratulations to the team and thanks to all for their hard work which has rightly been recognised by these nominations.
In this edition of the newsletter, James Buchanan discusses Enforcement Notices and Good Character having particular regard to cases of Gross Negligence Manslaughter. Paul Renteurs considers the scope for disclosure at inquest in cases involving investigations by the AAIB and the MAIB following the case of HM Senior Coroner for West Sussex v Chief Constable of Sussex [2022] EWHC 215 (QB). Craig Ferguson examines the conduct of the injured employee and strict liability offences at sentencing having regard to the case of Regina v Nestle UK Ltd [2021] EWCA Crim 1681. Alexandra Tampakopoulos considers the relevance of future financial performance of commercial organisations following the case of R v Modus Workspace Ltd [2021] EWCA Crim 1728. And finally, David Whittaker KC and Tom Day provide an analysis of the law as regards the proper particularisation of the Indictment with specific regard to health and safety prosecutions.
We do hope you find this edition both informative and interesting and welcome suggestions for future editions.
ENFORCEMENT NOTICES AND GOOD CHARACTER
NS, the sole director of SA Limited, was charged with Gross Negligence Manslaughter. It was the prosecution’s case that SA had failed to take any measures to mitigate the risks associated with work at height, and that NS had failed to act when he had witnessed first-hand work being undertaken in circumstances that posed a serious and obvious risk of death. Plainly, NS and SA were separate legal entities; however, for all practical purposes they were one and the same.
The prosecution had served as unused material evidence of an Enforcement Notice served on SA four years prior to the events giving rise to the allegation of Gross Negligence Manslaughter. NS was the sole director of SA at the time. The notice related to work at height and the absence of any control measures. It was not appealed.
NS adduced at trial evidence of his convictions for relatively minor (and irrelevant) offences committed over 30 years ago and in due course sought to persuade the trial judge to treat him as a man of “effective good character” and to give both limbs of the good character direction. The judge declined to do so, in light of the earlier enforcement notice against a company in respect of which NS had sole and complete control. Whilst not expressed in these terms, it was apparent that the court treated the enforcement notice as bad character evidence as against NS.
In the event, NS was acquitted of manslaughter and it was therefore unnecessary to consider pursuing the matter further. However, this is an issue that is likely to arise in future cases and therefore warrants further consideration….
Case Comment: HM Senior Coroner for West Sussex v Chief Constable of Sussex [2022] EWHC 215 (QB)
In 2015 at the Shoreham Airshow, a devastating crash during an aeronautical display led to the deaths of 11 individuals and the serious injuring of many more. Miraculously, the pilot of the aircraft involved survived the crash, and was acquitted of any criminal wrongdoing at a trial at the Old Bailey in 2019. The Coroner’s inquests charged with establishing how the 11 individuals killed came by their deaths have yet to be concluded. In an application by the Senior Coroner for West Sussex to the High Court for disclosure of certain materials, the Court considered the balancing exercise that is required to be carried out between the benefits of disclosing such material, and the harm caused to the integrity of air accident investigations by such disclosure.
The context in which these issues arose was the internationally sanctioned regime provided for the investigation of air accidents. That regime, conceived in the Convention on International Civil Aviation (“the Convention”) signed by states parties in Chicago in 1944, and incorporated into both EU and domestic UK law, stipulates that certain materials shall not be made available for purposes other than the accident or incident investigation unless the competent authority (the High Court in the UK) determines that “their disclosure or use outweighs the likely adverse domestic and international impact such action may have on that or any future investigation” (Standard 5.12, Annex 13 of the Convention). Such material includes “cockpit voice recordings and airbourne image recordings”. In the UK, the statutorily recognised body charged with investigating air accidents is the Air Accidents Investigation Branch (“AAIB”). The default position in law, then, is that only the AAIB will have access to such materials for the purpose of completing their investigations….
The conduct of the injured employee and strict liability are generally irrelevant to sentence: Regina v Nestle UK Ltd [2021] EWCA Crim 1681, [2022] 4 W.L.R. 3
Nestle, a very large organisation with a turnover of £1.6 billion, pleaded guilty to one count of failing to prevent access to dangerous parts of machinery, contrary to regulation 11 of the Provision and Use of Work Equipment Regulations 1998 (‘PUWER’) and was sentenced to a fine of £640,000. Permission to appeal against the size of the fine was refused by the single judge and Nestle renewed its application to the full court.
The Facts
In February 2016, an experienced technical operator, ‘J’, suffered a significant injury whilst working at Nestle’s factory in Halifax. There had been a problem with the operation of a conveyor belt on a machine that produced After Eight Mints, which kept slipping. J was crouched at the side of the machine, observing the conveyor belt. There was no guard at that location. J was holding an emery cloth in his right hand. He said the cloth got dragged into the roller and it took his arm with it. He was trapped by the rollers until he was eventually released by paramedics.
J suffered a fracture of his right ulna and radius which were reduced with pins and plates. He was discharged from hospital after three days and was away from work for four months. By the time of the application, he continued to suffer residual weakness in his arm which was also heavily scarred….
Case Note: R v Modus Workspace Ltd [2021] EWCA Crim 1728 and Future Financial Performance of Organisations
The Facts
The Appellant, Modus Workspace Ltd (MW), appealed against a fine of £1,100,000 imposed following a conviction for an offence under section 3 of the Health and Safety at Work Etc. Act 1974. MW were a design and construction company appointed to refurbish commercial premises at a warehouse. The injured party (IP) was employed by a sub-contractor used for installing fire products. The IP was asked to examine a leak in the water sprinkler system. The lighting on the roof where he was asked to work was poor and as a consequence he used the torch on his mobile phone. He leaned a ladder against an exterior wall but it gave way when he stepped onto it and fell through a gap suffering serious injuries. MW had noted the risk that could arise but had not mitigated the risk. Whilst there had been daily toolbox talks on the site MW accepted that it was not able to produce risk assessment documentation for the gap in relation to the area the IP was working.
Sentencing
At sentencing, annual accounts were submitted showing a turnover of over £50 million over the previous three years. The guideline starting point therefore taken by the judge was £1,100,000 within a range of £550,000-£2,900,000. A letter from auditors regarding the impact of the pandemic on trading and sales provided “a most optimistic forecast” of £40 million of turnover for the year 2020. Taking into account the company had no previous convictions, it generally had a good health and safety record and though the company had not immediately accepted responsibility but following the accident steps were taken to make the area safe and the company had cooperated with the investigation. The sentencing judge made no adjustment to the guideline starting point of £1,100,000….
Particularising the indictment in a criminal regulatory prosecution: the law and consequences
David Whittaker KC and Tom Day
Introduction
When faced with a criminal regulatory prosecution, as with any criminal prosecution, the indictment is the most important document in the case; but what should be contained within it and what are the possible ramifications of the introduction of particulars of the offence? This topic deserves further exploration but what follows is an introduction to the key topic and case law.
The Law
The Criminal Procedure Rules part 10.2 provides under the heading ‘The indictment: general rules’
— The indictment on which the defendant is arraigned under rule 3.32 (Arraigning the defendant on the indictment) must be in writing and must contain, in a paragraph called a ‘count’—
(a) a statement of the offence charged that—
-
- describes the offence in ordinary language, and
- identifies any legislation that creates it; and
(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.
It has been clear since R v Chargot [2009] 1 WLR 1, quoting the Scottish case of Adamson v Procurator Fiscal, Lanark (unreported) 31 October 2000, that where a prosecution is brought under section 2 or section 3 of the HSWA 1974, the particulars of the indictment need ”as a matter of fair notice, to specify [in the charge] the particular operation said to give rise to the risk.” In Chargot, that requirement was satisfied by the statement in the particulars of offence that the risks to the employees’ health and safety at work were in relation to the driving or use of dumper trucks. Chargot was also clear that one of the purposes of particulars is to ensure that the defendant knows what case they must meet, but as to detail the Court concluded: “Here again the test of how much detail need be given is that of fair notice”….
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