Tom Day

Criminal Regulatory

Tom specialises in criminal regulatory related litigation and is recognised as a leading junior in the field of Health and Safety. He advises and acts in all matters involving alleged breaches of criminal regulations including alleged breaches of the Health and Safety Act 1974, Environmental Protection Act 1990 (including statutory noise nuisance), Regulatory Reform (Fire Safety) Order 2005, Housing Act 2004, Security Industry Act 2001 and Food Safety Act 1990.

Tom has particular experience defending prosecutions brought under the Health and Safety at Work Act 1974 representing directors, corporate entities, charitable bodies and individuals. He has particular experience in matters concerning the construction industry, the CDM regulations, and the Work at Height Regulations. He is also regularly instructed in inquests which touch upon potential breaches of health and safety legislation and represented The Football Association at the Hillsborough Inquests.

He is known for his ability to quickly identify the central issues, provide practical advice, and bring to bear excellent tactical judgment in the preparation and management of cases. As a result, he is often instructed by solicitors before charge to provide advice with an eye to future proceedings.

Tom is a regular contributor to the 2 Hare Court Criminal Regulatory newsletter and is a member of the Association of Regulatory and Disciplinary Lawyers and the Health and Safety Lawyers Association.

Individual cases and a selection of current instructions:

R v PD

Tom was instructed as sole counsel to represent an individual charged with two offences under section 2(1) and section 3(2) of the Health and Safety at Work Act 1974.  After a trial at Basildon Crown Court the jury returned unanimous verdicts of not guilty on both counts.

R v SW

Tom is instructed as junior counsel, led by David Whittaker QC, to represent an individual charged with gross negligence manslaughter and HSWA offences in relation to the death of a roofer on the site of a large hotel redevelopment.

HFRS v AW

Tom is instructed to represent a fire risk assessor indicted on charges brought under the Fire Safety Order in respect of an allegedly insufficient fire risk assessment of a block of communal flats in 2017.

HSE v PD

Tom represents an individual charged with health and safety offences following the collapse of a wall onto a young person while they were demolishing a house.

HSE v DB

Tom represented the site manager of a waste recycling firm arising out of an incident whereby two employees were inside a trommel when the machine was re-started. The two employees stopped the trommel and entered the drum to clear a blockage. In the presence of the site manager another employee restarted the trommel, unaware that the men were still inside. The two men remained inside the revolving trommel drum for approximately four minutes before the line was stopped. One individual died at the scene after sustaining multiple injuries to his head and torso and the other sustained multiple serious injuries to his legs, arms and torso requiring extensive hospital treatment.

BBC News

LB Bromley v OF

Tom advised a corporate entity which provides gym facilities in London in relation to an improvement notice served by the local authority arising out of an alleged failure to comply with Workplace Regulations as to the provision of washing facilities. Owing to Tom’s advice, drawing upon case law from the Court of Appeal Civil Division and Scottish authority, the client approached the local authority who agreed to withdraw the improvement notice.

HSE v PLC

Tom represented a company charged with health and safety offences arising from the dismantling of a lift. The charges arise out of an accident wherein a worker fell from the lift and suffered catastrophic injuries leaving him paralysed from the chest down.

HSE v MWJ

Tom represented the Director and company charged with health and safety offences arising out an explosion which caused catastrophic injuries to an employee. The explosion occurred during the attempted decommissioning of underground petrol storage tank.

Inquest touching the death of FC

Tom represented the local authority in relation to a part heard inquest. The death occurred as a result of road accident where the deceased’s car left the road in wet conditions on a stretch of ‘A road’ for which the local authority has responsibility.

Hyndburn Borough Council v TCH

Tom represented a company charged with various offences under the HSWA 1974. The prosecution arose out an accident which occurred when the maintenance team attempted to remove a roller shutter door. The roller shutter door, weighing over 1.2 tonnes collapsed onto one of the maintenance team operatives who suffered catastrophic injuries including an amputation above the knee, a bleed on the brain and a fractured skull. The maintenance team had never, for this or any other operation, produced a written risk assessment or method statement. Tom negotiated acceptable pleas to some of the charges and produced with his solicitors a comprehensive mitigation bundle and documentation ahead of sentencing. The prosecution’s contention was that the offence, for a “large” company within the guidelines, should be categorised as high culpability, harm category 1 so as to receive a starting point of a £2.4 million fine. After hearing detailed argument the Court agreed with Tom’s argument and categorised the company as a “medium” company following the effects of COVID-19, and the offence categorised as medium culpability, harm category 2 and imposed a fine of £200,000.

West Yorkshire Fire Authority v JB

Tom represented a Director of a national Corporate Approved Inspector in relation to charges brought by the West Yorkshire Fire and Rescue Service (WYFRS) against the Corporate entity under the Regulatory Reform (Fire Safety) Order 2005.  Tom’s client was prosecuted on the basis that the offence was committed with the consent, connivance or attributable to the neglect of the Director. The case involved complicated and novel legal issues which were the subject of detailed legal argument. Legal arguments combined with sound tactical management of the case and disclosure requests led to representations drafted by Tom inviting the prosecution to offer no evidence. The prosecution offered no evidence on the first day of trial.

Further details: 2 Hare Court News Article

Inquest touching the death of MS

Tom represented the general manager of hotel during an inquest touching the death of one of its guests who fell from an open window to his death.

Inquest touching the death of NSC

Tom represented Leeds Beckett University at the inquest arising out of the suicide of an undergraduate student. The case received national media coverage.

Please read news articles from The Daily Mail and The Sun.

HSE v E

Tom advised and represented a scaffolding company charged with breaches of health and safety legislation arising out of the collapse of a three-storey scaffolding tower onto Leicester High Street. The collapse injured two pedestrians and caused damage to passing vehicles. Tom secured a fine of £8,000. The matter received national press coverage from the BBC, ITV, Daily Mail among others.

Please read news article here BBC News.

London Borough of Southwark v B

Tom advised in relation to a criminal summons issued to this FTSE listed multinational company for an alleged breach of section 60 of the Control of Pollution Act 1974. The summons was withdrawn following Tom’s legal advice and written representations to the prosecution asserting that the summons were invalid, proceedings were time barred and that the defect in the summons could not lawfully be amended. The prosecution withdrew the summons.

HSE v B

Tom advised and represented a private education establishment following an accident where an employee fell while undertaking remedial work to a bay window roof. The Health and Safety Executive originally suggested that the ultimate fine ought to begin with a starting point of £950,000. Having considered detailed written and oral submissions the Crown Court imposed a fine of £40,000.

HSE v PSS

Tom represented a national storage solution company who were charged with an offence contrary to section 3 of the Health and Safety at Work Act 1974. The charge arose out of an incident in Carlisle where the company, through its subcontractor, was installing 200kg racking. During unloading of a different item, one of the racks fell causing devastating injuries. Following Tom’s detailed defence statement which particularly concerned the inherent stability or otherwise of the racking, the prosecution offered no evidence.

HSE v JP

Tom represented a sole trader charged with health and safety offences arising out of a fall from height which caused serious injuries. The defendant was a painter/decorator who had been appointed principal contractor by a large organisation for the refurbishment of a building. Tom’s client entered acceptable guilty pleas but maintained that he had not knowingly agreed to be principal contractor and that the organisation was seeking to use him as cover. Having heard submissions on the point the judge agreed that Tom’s client had not knowingly agreed to appointments as principal contractor.

Lancashire Fire & Rescue v P

Tom represented the former Chairman of Lancashire County Council who faced 12 charges relating to breaches of The Regulatory Reform (Fire Safety) Order 2005 placing one or more people at risk of death or serious injury. The prosecution arose as a consequence of a fire in a building owned by Tom’s client and let out to tenants. Tom negotiated acceptable guilty pleas and the matter was committed for sentence to Preston Crown Court. The sentencing judge was persuaded to impose a suspended sentence of imprisonment and a fine.

Please read news article here.

HSE v S and EK

Tom represented the company and director of a solar panel company for offences under the HSWA 1974, Work at Height Regulations and breaches of a prohibition notice all arising from employees working unprotected on a roof. The Court disagreed with the HSE’s submission of high culpability and agreed with Tom that this was a case of medium culpability before imposing a £10,000 fine.

DB v Newbury Town Council

Tom advised and represented Newbury Town Council defending proceedings in the Magistrates’ Court whereby the claimant alleged a statutory noise nuisance emanating from a play equipment and area owned and maintained by the Council. Experts were instructed by the claimant and the defendant. After cross-examination, the claimant’s expert conceded that he could not say that the noise amounted a statutory noise nuisance and the application was rejected by the District Judge.

HSE v BL

Tom advised and represented the company in a prosecution brought as a result of asthma developed by an employee owing to exposure to solder. The matter concerned the exposure to solder over period of decades and necessitated careful examination of the guidance applicable over those years, the remedial efforts undertaken by the company and the extent of the injury to the employee. After written and oral submissions the court imposed a fine of £12,000.

Flintshire County Council v WBS

Advised and represented a company charged with three offences under the HSWA 1974 arising out of an incident on the company’s premises that resulted in the amputation of a customer’s fingers.

Environment Agency v H

Tom advised and represented a waste management company charged with breaches of the Environmental Protection Act 1990. The case involved complex issues in particular the definition of hazardous waste in relation to various compounds of antimony.

Security Industry Authority v ES

Tom represented one of the largest private security providers in the country and two directors in a prosecution brought by the Security Industry Authority. After careful negotiation, the prosecution accepted pleas to only one offence by the company and one of the Directors and the other Director was found not guilty of all offences. Following mitigation, the multi-million pound turnover company was fined £500 and the Director recited a Band C fine (the equivalent of one week’s salary).

London Borough of Newham v PP and KT

Tom represented a company and director accused of numerous offences under the Housing Act 2004 and the Houses in Multiple Occupation Regulations 2006 after a property owner by the company was found to be in a poor state of repair and to be occupied by 10 – 15 individuals when licensed to provide accommodation to only one family of 5 individuals.

HSE v MC

Tom advised and represented a roofing company, acting as subcontractor, in relation to charges arising out of a fall from height through a roof aperture. Tom secured a total financial penalty approximately a tenth of that imposed upon the principal contractor.

London Borough of Newham v FTC, FL and CM

Tom represented a company and its two directors accused of offences under the Housing Act 2004 and the Houses in Multiple Occupancy Regulation. The prosecution offered no evidence on all charges after considering written representations.