Date:

Update on individual prosecutions

In a health and safety prosecution, whilst the focus is often on a company, sometimes the impact can be much closer to home when individuals are considered for prosecution.  Just as companies can be charged with corporate manslaughter, individuals can be charged for gross negligence manslaughter, as well as a whole host of other health and safety offences.  Moreover, it is not just directors who can be prosecuted, any employee can be. 

There has been much discussion regarding individual directors being prosecuted in corporate manslaughter cases.  In particular, this places potential pressure on directors who need to act in the best interests of the company, but may also face serious consequences if the prosecution against them individually is successful.  However, the prosecution of individuals extends much more widely than these cases. 

Recently there have been a number of prosecutions of individuals with varying outcomes that serve as a good reminder of the type of circumstances in which individuals can be prosecuted and the consequences of such action.  These include:

  • Laurence Dennis Brown, the owner of LDB Light Alloys Ltd, pleaded guilty to a breach of Section 2 of HSWA after failing to protect workers from lead poisoning.  Three employees became seriously ill following exposure to lead.  Mr Brown was sentenced to six months in prison, suspended for 18 months.  He was also fined £45,000 and must contribute £35,000 towards the prosecution costs.
  • The owner of Lincolnshire Stained Glass, David Sear, was fined £18,000 and ordered to pay costs of £18,000.  This was following a guilty plea to a breach of Regulation 6 (1) of the Control of Lead at Work Regulations 2002.

The toll that a prosecution can have on an individual can be devastating, even in instances where an acquittal is achieved.  The time it takes for an investigation and prosecution to conclude can be months and more often than not, years. 

In a situation where there has been an incident and you are being considered individually for prosecution you should bear in mind the following:

  • Look to get legal representation for yourself.  If the company already has a solicitor, they may be able to advise on this.  They may be unable to act for you as there may be a conflict between your interests and those of the company.  However, they may be able to make other arrangements on your behalf. 
  • Consider the financial position for any representation.  It may be that the company's insurance policy will provide some cover or alternatively, legal aid may be available.  Directors may also hold an individual Directors & Officers Liability Insurance policy for such matters.
  • You do not need to seek legal advice.  However the benefit is that it will mean that correspondence between yourself and your solicitor will be protected by privilege.  This means that the prosecuting body cannot seize or compel you to provide this material.  Additionally, innocuous requests for material are tempting to comply with to assist the process, yet these can have potentially far reaching consequences.  It is always better to get advice before complying with any request.
  • Before a decision is made to prosecute, it is highly likely that you will be invited for an interview under caution.  Sometimes this can be in a tight timeframe and prior to this it may not always have been clear that you were being considered for prosecution.   If you do now wish to get representation, it is best to be able to prepare fully.  Sometimes it is possible to delay the date for interview.   There is always the chance that this will be refused.  However, an ill-advised approach at interview can have a significant impact on the course that the matter subsequently takes, therefore it is best to prepare as fully as possible.

 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Paul Matthews

Partner - Head of Regulatory (Yorkshire and North East)

I am a Partner in the Regulatory team and a corporate defence specialist who provides up-front regulatory compliance advice and representation to businesses and senior managers in relation to investigations and prosecutions by regulatory bodies.

Steffan Groch

Partner and Head of Regulatory - Head of Sectors

I head up DWF's national Regulatory team as well as leading the firm’s ‘go to market’ sector expertise. I am also Chair of the UK Health and Safety Lawyers Association.