Sun, 03 Jan 2016
Corporate Crime analysis: Alex Stein, barrister at No5 Chambers specialising in criminal and regulatory law, looks at the most significant developments in 2015 in the area of health and safety and corporate manslaughter.
Legal developments and practical impact
What legal developments have had the biggest impact on your practice in 2015?
The most obvious development in 2015 has been the publication of the Sentencing Guidelines for Corporate Manslaughter, Health and Safety and Food Safety and Hygiene Offences on 3 November. Although not officially in force until 1 February 2016 the message is quite clear--defendants can expect significantly larger fines in corporate manslaughter/health and safety prosecutions going forward.
Along similar lines, section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was enacted in March 2015. This removes any limit on the level of fines that can be imposed by the magistrates' courts for offences committed after 12 March 2015.
The extension of the civil sanctions available to the Environment Agency (EA) under the Regulatory Enforcement and Sanctions Act 2008 to cover environmental permitting offences in England and Wales from 6 April 2015 have greatly increased the scope of non-criminal interventions available for EA cases.
How have these affected your ongoing cases and working life? How have you dealt with these on a practical level?
There has been considerable pressure from defendants to have guilty pleas and sentences listed and concluded before the publication of the new sentencing guidelines. In one case, the sentencing of a defendant company was listed on 28 October, just days before the new sentencing guidelines were published. This resulted in the defendant company avoiding being sentenced by a judge who, although not bound by, would inevitably have been influenced by the new guidelines. The fine imposed was about a third of the level one would have expected under the new regime.
In a similar fashion, there is now considerable pressure to have cases finalised before 1 February 2016 if at all possible. In my experience defendants are avoiding any delays at all costs--even to the extent of avoiding any trials of issue because the potential gain on sentence is outweighed by the uplift in fine after 1 February 2016. This puts the prosecution in a very strong position in negotiations over any basis of plea.
I am also currently advising a defendant in relation to an ongoing corporate manslaughter investigation and it has been possible to offer some sort of certainty in relation to the potential fines in the event of a successful prosecution.
Have all of the expected developments of 2015 come to pass?
Perhaps unsurprisingly there has been quite a healthy uptake of civil sanctions by companies facing a potential Environment Agency prosecution. In addition, although they have been slow in getting going (the provisions came into force in February 2014), the first Deferred Prosecution Agreement (DPA) has recently been approved against Standard Bank and I understand the Serious Fraud Office are in the process of negotiating a second. This is of interest to me because they bear a number of similarities to the civil powers available under the Regulatory Enforcement and Sanctions Act 2008 (RESA 2008). If the RESA 2008 civil sanctions and DPAs are successful, no doubt the government will extend their remit into other areas including health and safety offences.
Clients and business developments
How has your business developed in 2015? Has this been a good year for work in your area?
Although still instructed in the Hillsborough Inquests on behalf of the Fire Service, I have been able to step away from the day-to-day attendance at the hearings as the inquests have moved onto the medical evidence. I have therefore been able to return to more health and safety and environmental work in the criminal courts. This has been successful and 2015 has been a very good year for me. I have been particularly pleased to be instructed by a number of large corporates in relation to health and safety and environmental work as well as continuing to prosecute on behalf of the HSE.
How has the profile of your clients developed? Can you identify any trends in your clients or types of cases?
There has been an increase in the number of corporate defendants requiring advice and representation. These defendants often have the benefit of legal expenses insurance and No5 Chambers has an established reputation with the larger national insurers. As I have also mentioned above there has been a stampede to get these cases finalised before the new sentencing guidelines come into force.
Interviewed by Kate Beaumont. This article was first published on Lexis®PSL Corporate Crime analysis on 18 December 2015. Click for a free trial of Lexis®PSL.