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Regulatory Health and Safety

Merlin fined £5 million for Smiler Crash
Tuesday 27th September 2016

Merlin Attractions, who own Alton Towers, have been fined 5 million pounds for the June 2015 Smiler Rollercoaster crash in which sixteen people were injured and two teenage girls were forced to undergo leg amputations. Further to the crash Merlin were charged with breaching s 3 (1) of the Health and Safety at Work Act 1974 (HSWA 1974) and entered a Guilty plea in Newcastle-Under-Lyme Magistrates Court on 22nd April 2015. The case was sent to Stafford Crown Court for sentencing with District Judge John McGarva telling Merlin to expect a ‘very large fine’.

After a two day sentencing hearing at Stafford Crown Court His Honour Judge Michael Chambers QC handed down a five million pound fine. He found that the company were guilty of a ‘catastrophic failure to assess risk’. The crash occurred when an empty test train was sent out which became stuck; however, the ride’s engineers were unaware that the train was stuck and the ride was handed back over to its operators. A train with sixteen passengers was sent out and stopped by the ride’s computer, but engineers could not see the stalled car, thought the computer had made an error and manually overrode the stop. HHJ Michael Chambers stressed that human error was not to blame, but rather that Merlin had failed to put in place safe systems for the rides engineers to work within. The Court further heard that the ride, which was designed to operate in winds over 34 mph, was in operation despite wind speeds of 45 mph and that an alarm designed to sound when wind speeds exceed 32mph failed to go off. HHJ Michael Chambers QC stated that the accent was wholly avoidable with those injured lucky not to have lost their lives in the crash and that Merlin had put the safety of thousands of people at risk.

Merlin were sentenced under the new Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences which apply to all organisations and offenders sentenced on or after 1 February 2016, regardless of the date of the offence. These guidelines significantly increased the fines for breaches of the HSWA with the previously applicable 2010 guidelines providing simply for a seldom less than £100,000 fine for HSWA offences. Companies who breach the HSWA now find themselves subject to an unlimited fine under the new guidelines.

When sentencing the size of the fine is governed by firstly determining the culpability of the company (very high, high, medium, low) and the category of harm (categories 1-4) which is based on the seriousness of the harm risked and the likelihood of it occurring. The Court must then consider whether the offence exposed a number of workers or members of the public to the risk of harm and whether the offence was a significant cause of actual harm. The fine is then set with reference to the turnover of the company at fault. Companies with a turnover of over £50 million (i.e large companies) are subject to the highest fines with Merlin falling firmly into this category, posting pre-tax profits of £250 million for 2015. 


Criminal Courts Charge Scrapped
Thursday 10th December 2015

In April this year I wrote a short piece about the introduction on the Criminal Courts Charge, a scheme under which convicted offenders could be ordered to pay a non-means tested charge of anything between £150 and £1,200. The charge was which set solely by reference to the type of case and the procedural point that the case reached but was charged irrespective of other penalties and costs and without reference to the effective removal of legal aid from nearly all defendants with any means.

There were many critics of the scheme including practitioner groups and the Magistrates Association. There were also a number of publicised resignations by Magistrates and general Judicial grumblings.

Justice Secretary Michael Gove has now announced that the scheme, having been in place for only 8 months, will be scrapped on the 24th of December 2015. Mr Gove said "while the intention behind the policy was honourable in reality that intent has fallen short".

The intention behind the policy was, according the then Justice Secretary Chris Grayling, to ensure that criminals "pay their way". Many considered this approach to be ill thought through and a scheme which ignored the practicalities of the criminal justice system.

MPs on the Justice Committee published a report in November in which they said the fee, created "serious problems" and was often "grossly disproportionate". To many practitioners is was painfully obvious from the outset that the scheme was incompatible with the principles of justice and would create unfair incentives for defendants who feared the financial consequences of doing otherwise, to plead guilty or for those sentencing to be faced with this mandatory charge to reduce other costs, fines or compensation orders to take account of the charge.

The Magistrates' Association's national chairman, Malcolm Richardson is quoted as having said: "This is an enormous success for the Magistrates' Association but most importantly for justice in our criminal courts system. In my 26 years as a magistrate I have never seen such a powerful reaction from my colleagues on the bench and Michael Gove's announcement is therefore tremendously welcome."


Deferred Prosecution Agreements – a cost of doing business?
Thursday 3rd December 2015

Nick Robinson of Radio 4’s Today program interviewed the ex-boss of Barclays, Antony Jenkins – the first interview he has given since being, perhaps somewhat unceremoniously, removed from his post. The interview touched upon Jenkins attempts to reform the bank following its involvement in the various banking scandals of recent times. Inevitably Robinson asked the question as to whether Jenkins felt that sufficient individual accountability existed in banking and whether in fact bankers had learned to regard the fines, which we have seen in recent times levied against the banks, as simply a cost of doing business.  

Similar comments are made by opponents to Deferred Prosecution Agreements (“DPA’s”), a relatively recent import to the UK from the States, introduced by Schedule 17 of the Crime and Courts Act 2013.

Under a DPA, which can be used for fraud, bribery and other economic crime, a company is charged with a criminal offence, but proceedings are automatically suspended to be resumed only if the company fails to comply with conditions imposed by the court e.g. financial penalties and compensation.

On the 30th of November Lord Justice Leveson approved the first DPA. The case before him involved allegations contrary to section 7 of the Bribery Act 2010 where a former sister company of Standard Bank Plc (now ICBC Standard Bank Plc) Stanbic Bank Tanzania paid $6m to a local partner in Tanzania, a company called Enterprise Growth Market Advisors (“EGMA”). The chairman of EGMA was at the time an official within the Government of Tanzania. It was alleged that the payment was made in order to receive favourable treatment. The arrangement also resulted in a payment of a transaction fee of $8.4m which was shared by Stranbic Tanzania and Standard Bank.

The approved DPA makes clear that the bank’s procedures with regard to the prevention of bribery were inadequate. The bank will therefore be required, under the terms of the order, to carry out a full review of their existing controls, policies and procedures with specific regard to the Bribery Act 2010. The DPA also provides that the bank will pay financial orders of $25m, compensation of $7m and the SFOs costs of £330,000, with the indictment faced by the bank suspended subject to compliance with the terms of the agreement.

Deferred Prosecution Agreements are a tool used, entirely at the discretion of the prosecutor, as an alternative to prosecution. At a time of their introduction in the UK, their use was the subject of significant controversy in the States – why should businesses be able to ‘buy themselves out’ of criminal cases?

The Code of Practice issued by the Serious Fraud Office and Crown Prosecution Service provides guidance on DPA’s when consideration is given to negotiating them, seeking approval of them, overseeing their subsequent operation and dealing with variation, breach, termination and completion. From the guidance it seems clear that DPA’s are more than a mechanism by which a company can pay their way out of a prosecution.

There are no hard and fast rules as to the circumstances when a DPA might be suitable.  The available guidance suggests that a DPA may be considered when the evidential stage of the Full Code Test in the Code for Crown Prosecutors (‘reasonable prospects of conviction’) is satisfied or, if this is not met, where there is at least a reasonable suspicion based upon some admissible evidence that the potential defendant has committed the offence, and there are reasonable grounds for believing that a continued investigation would provide further admissible evidence, so that all the evidence together would be capable of satisfying the Full Code Test.

The guidance then appears broadly to set out factors which may aggravate (e.g. widespread systemic failures) and so tend towards prosecution, or mitigate (e.g. limited isolated failings and/or self-reporting) and so tend towards a DPA or some other penalty.  

Many may be left wondering why, if a case meets the test for prosecution, it is not simply dealt with in that way. This ignores the practical reality of litigation – criminal or otherwise – which is to an extent uncertain. There are many cases where the evidential test (as set out in the Code for Crown Prosecutors) is close to being met but the prosecutor is not sufficiently confidence to mount a prosecution. The DPA may be an alternative to ‘mark’ the relevant conduct, provide for compensation and financial orders and save cost – which may be a welcome prospect when hard pressed Governments are otherwise faced with investing the huge costs involved in prosecuting large and well-funded organisations. DPA’s appear also to be a useful tool in ensuring that the relevant defendant carries out a review of its policies and procedures in order to provide that they are compliant with the relevant legislation in future.


Carrying your firearm in a public place – what does the law say?”
Thursday 6th August 2015

Shooters may not realise that they do not have an automatic right to take a gun into a public place and that their firearm or shotgun certificate does not give them lawful authority to do so. 

Many will have read, with a degree of sympathy, the story of 88-year-old Roy Delph who was ordered to serve a two year custodial sentence by the Norwich Crown Court after having been found by a police officer with a loaded shotgun in his vehicle. 

Delph had owned the shotgun in question for around 50 years and held a valid shotgun certificate at the time of the incident. He admitted to possession of the shotgun which was seen by an officer when Delph had approached him to complain about being the victim of anti-social behaviour at the hands of a gang of local youths. 

Judge Coleman, sitting at Norwich Crown Court, accepted that Delph felt “terrorised” by the youths, owned the shotgun lawfully, did not fire it on this occasion and did not intend to cause fear of violence. Nevertheless said that he had shown a “brazen disregard” for the laws which were intended to keep guns safe. He went on to comment: "The gun was loaded and it was found in your car in a public place. There was no excuse for that”, adding, “It was also troubling that the police returned to your house and although you had a firearms certificate the guns were not in a secure place.”

Although this case is an extreme example, shooters should be aware of what the law says in relation to possession of firearms in public.

A person commits an offence if, without lawful authority or reasonable excuse (the proof whereof lies on him) he has with him in a public place:

  1. a loaded shot gun;
  2. an air weapon (whether loaded or not);
  3. any other firearm (whether loaded or not) together with ammunition suitable for use in that firearm, or;
  4. an imitation firearm/

The maximum sentences for these offences is seven years. Five-year mandatory prison sentences apply for prohibited weapons.

To be convicted a person must know that they are in possession of a firearm, shotgun or air weapon. A weapon is ‘loaded’ for the purposes of the Firearms Act if there is ammunition in the chamber or barrel, or in any magazine or device which is positioned such that through manual or automatic operation, it can be fed into the chamber or barrel.

The definition of ‘public place’ is wide. You should assume that the default position is that anywhere aside from your home will likely be deemed a public place.

Many people think that simply because they hold the relevant Firearm Certificate (FAC) or Shotgun Certificate (SGC) that this is sufficient to provide them with lawful authority – a term undefined in UK firearms legislation. The Courts have found that a FAC was not necessarily sufficient to show lawful authority. Practically speaking shooters must be able to justify, when challenged or asked by a police officer, why they are in possession of a firearm. Remembering that the ‘proof whereof lies on him’ it is important that a satisfactory explanation is given early and is recorded.

Reasonable excuse is assessed on a case-by-case basis. You would imagine that there would be little difficulty if you were travelling to and from a clay ground or rifle range, crossing the road during a shoot or travelling to and from a gun shop etc.

You should remember, however, that you do not have an automatic right to take a gun into a public place. Think about where you are intending to take your gun and consider whether, if challenged, your reason for possession would be justified – then plan accordingly. 


Tuesday 30th June 2015

Many will not have come across the term Police Information Notice or PIN.  These notices have been in use for a considerable period of time (previously referred to as harassment notices) and anecdotally, their use seems to be becoming more prevalent.  

Whilst there have been some high profile cases concerning the use of PIN’s, the reality is probably that most people are correctly issued with a notice, understand it and accept it. However, I suspect many people don’t consider the implications.  None of this sounds particularly interesting until you realise the circumstances in which the police may issue a PIN and how, effectively, an individual may be powerless to challenge the notice.

The recent case of the Croydon Observer Journalist Gareth Davies had brought the issue of PIN’s back into the news. Mr Davies’ complaint about the manner in which he was issued with a PIN by the Metropolitan Police has gained national press interest and support from Gavin Barwell, the Conservative MP for Croydon Central.

Mr Davies was issued with a PIN after, in his capacity as a journalist, he contacted Neelam Desai - a convicted fraudster. At the time the notice was issued Mr Davies had sent Desai one email and had on one occasion attended her home address in order to try and speak to her.  Davies’s ‘appeal’ against the issuing of the PIN was rejected by the Independent Police Complaints Commission (IPCC). Gavin Barwell MP has since written to the IPPC’s chief executive, Lesley Longstone, to contest that decision, arguing that it amounts to “a very worrying attack on press freedom”.

After the Croydon Observer made a formal complaint to the Met police about the issuing of the PIN, the matter was investigated by Inspector Claire Robbins, who decided that Davies’s attempts to question Desai went “beyond what is reasonable”.

Fundamentally the complaint made by Mr Davies focussed on three issues; firstly, the basis for issuing the notice, secondly the effect on the individuals character and thirdly the likely wider effect for journalists.

In March 2014 MP Tim Loughton was issued with a PIN by Sussex Constabulary. This resulted, eventually, in the withdrawal of the notice following an inquiry – which was reported by the House of Commons Committee of Privileges (15th July 2014).

I have had recent experience of a case involving bringing a ‘challenge’ to a PIN on behalf of a client during which a number of issues became apparent.

Firstly, there appeared to be an inconsistency in approach between the guidance issued to police by the Association of Chief Police Officers (ACPO) and what was happening in practice. The PIN with which I was concerned had been issued based purely on the account of the complainant. No inquiries had been made to ascertain whether the complaint had a basis in fact.  On this point, in the subsequent correspondence the constabulary concerned suggest that no investigation was needed because the notice did not imply criminal conduct – the notice was intended merely to warn the recipient that their conduct, if repeated, could constitute a criminal offence.  

Secondly, PIN’s were introduced to combat a common evidential problem arising in prosecution cases for offences of harassment.  There notices are intended to be adduced in evidence in subsequent prosecution proceedings to demonstrate that the recipient of the notice (now the defendant) knew that his previous conduct, and so the conduct now before the Court, amounted to harassment. At its core a PIN must be an allegation made by the police that a person’s conduct amounted to an offence. It is therefore regarded by many as a serious reputational issue.

Thirdly, a PIN is extremely difficult to challenge. There is formal appeal route against the notice. A complaint may be made to the IPCC and a notice may be subject to judicial review - a costly High Court process.  In the case which I dealt with a complaint to the constabulary concerned eventually resulted in the notice being withdrawn and removed from the forces record.  This was despite the force earlier having asserted that it was not possible to withdraw the notice. 


Criminal Courts Charge
Wednesday 15th April 2015

It has long been the case that if found guilty of an offence in a criminal Court, there are consequences - fines may be imposed, orders made in respect of prosecution costs and a victim surcharge applied. 

From the 13th of April however, steps have been introduced to offset the costs of providing the Court service onto the ‘users’ of the Courts via the Criminal Courts Charge.

The scheme provides that a convicted offender may be ordered to pay a charge which is set solely by reference to the type of case and the procedural point that the case reaches.  The charge is non-means tested and will apply to appeals in addition.

The Court will be permitted to set terms whereby, provided the defendants does not re-offend within a period of time, the fee may be remitted – an idea which is aimed at  encouraging rehabilitation.

The charged is intended to be paid after any other award made by the Court (fines, prosecution costs etc…) has been satisfied.

The current charges which vary depending upon where the case is held, the defendant’s plea, and the stage at which the case reached within the court process.  For example the charge to a convicted defendant after trial in the Crown Court is proposed to be £1,200.  A trial of a summary offence in the Magistrates Court would result in a charge of £720 and a £1,000 charge would be levied for the trial of an either way offence in the Magistrates Court.

Even summary matters in the Magistrates Court which proceed by way of a guilty plea would result in charge of £150.

Critics of the scheme say that it amounts to further encouragement to those with limited means to plead guilty – thus interfering with the administration of justice.  Of course users of the civil court service have paid significant fees for the facility of the Court for many years and in fact recently we have seen issue fees in civil cases rise steeply. The effect in the civil context is to potentially deter the bringing of an action and arguably to curtail access to justice.   The effect in the criminal context is arguably to put pressure on a defendant to alter their plea for fear of the financial consequences.  This scheme must also be viewed in the context of the enormous cuts to legal aid and the huge limitations placed on the ability of acquitted defendants to recover their legal fees from central funds.



Unlimited fines in the Magistrates Court
Tuesday 17th March 2015

As most are aware, Magistrates dealing with the majority of health & safety offences have limited sentencing powers.  However, for offences committed after the 12th of March 2015, including most health & safety offences, Magistrates Courts will have the power to impose unlimited fines.  This change is made by section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Currently these changes apply only to England and Wales.

These sentencing changes have a wide ranging application and are not limited to just affect health & safety cases; they affect any ‘relevant case’ which, prior to the coming into force of Section 85(1), would be punishable in the Magistrates Court to a fine of £5,000 or more. A ‘relevant offence’ is one which immediately before the coming into force of section 85(1) is a common law offence or is contained in an Act of Parliament of Statutory Instrument.

Changes to the Criminal Practice Directions provide that authorised District Judges must retain cases which involve death or significant injury and cases which are high profile or are of particular sensitivity or complexity.  In practice however it is often the case that where health & safety cases are retained in the Magistrates Court, District Judges preside over them.

These changes are unlikely to have much effect on more serious health and safety cases which will likely proceed to the Crown Court and be exposed to unlimited fines in any event. However these changes will almost inevitably lead to a greater number of health and safety cases remaining in the lower Courts after a plea is entered. This will make the timing of any plea a more difficult decision and will mean that practitioners, anticipating a great deal of inconsistency in sentencing across England & Wales, may struggle to give accurate advice on likely fines.  This in turn will make reserving difficult for businesses. 

We have seen the Government seeking to offset the regulator’s cost to those who break the law under the Fees for Intervention Scheme and we may yet see the proposals of the Sentencing Council Consultation (recommending the use of far higher fines) brought in to practice.