UK: SHE Regulatory News - Spring 2012

WELCOME

Welcome to the first edition of Clyde & Co's Safety, Health, Environmental and Regulatory Newsletter.

Our SHE Regulatory Group is one of the largest and most recognised teams in the UK specialising in regulatory defence work.

We are only too aware of the difficulties that face your business with an ever increasing burden of regulation and legal duties. A workplace incident or a breach of those duties often culminates in an investigation and potentially criminal prosecution of a business, its management or staff.

With the stakes so high, it is essential that you and your organisation are kept up to date with changes in the law to protect the reputations of your business, its directors and employees.

Our quarterly newsletter provides a topical update on recent key developments in our areas of specialism:

  • Corporate manslaughter
  • Health and safety
  • Food safety
  • Road traffic and Transport
  • Environmental
  • Fire safety
  • Trading standards

CORPORATE MANSLAUGHTER

Corporate manslaughter conviction – a new level of fines for corporations?

The prosecution and conviction of Cotswold Geotechnical Holdings Limited ("Geotechnical Holdings") under the Corporate Manslaughter and Homicide Act 2007 heralds a new era in the level of fines to be expected by corporations following deaths at work and shows there is clear blue water between corporate manslaughter and health and safety fines.

The company was fined £385,000 after being found guilty by the jury at Winchester Crown Court. Geotechnical Holdings' fine is to be paid back over 10 years at a rate of £38,500 per annum. The total fine is less than the general starting point of £500,000 recommended by the Sentencing Guidelines Council but is still significant given that it represents approximately 110 per cent of the company's annual turnover. Even more remarkably in this case, the court specifically recognised that it was "a consequence of the serious breach" that the level of fine ran the risk of putting the company into liquidation and this was "unavoidable". Geotechnical Holdings lost its appeal against the sentence and, perhaps unsurprisingly, has subsequently ceased trading having been crippled by the size of the fine.

Its director, Mr Peter Eaton, was previously charged but did not stand trial due to ill health.

So what can future organisations expect if charged with corporate manslaughter? The size of the fine against Geotechnical Holdings was clearly intended to make a significant impact on the organisation. While that particular company may have had a modest turnover, a fine in excess of 100 per cent of the turnover for a larger, more profitable organisation, if successfully convicted, could equate to well above the Sentencing Guidelines Council's £500,000 starting point.

Second corporate manslaughter prosecution*

The second ever corporate manslaughter prosecution under the new Corporate Manslaughter and Corporate Homicide Act 2007 has been brought following the death of an individual on an industrial estate, with a trial date set by Manchester Crown Court for 12 June 2012. The case is being closely followed in the hope that further light can be shed on the scope of this new, and as yet relatively untested, offence.

Lion Steel Equipment Limited is a light engineering company based in South Manchester. The prosecution for corporate manslaughter arises out of an accident which occurred at the company's premises, on the 29 May 2008, when one of their employees fell through a skylight whilst undertaking maintenance work on the factory roof. The company has also been charged with offences under the Health and Safety at Work Act 1974 and the Work at Height Regulations 2005.

It is significant that the task being undertaken at the time of the accident was ancillary to Lion Steel's main operations and should stand as a warning to all organisations that they must consider safety in relation to all work carried out by their employees and not just focus on their main production processes.

In addition to the charges faced by the company, three of its directors have also been charged with the offence of gross negligence manslaughter, which carries a maximum sentence of life imprisonment, for failing to ensure the safety of the company's employee. Whether multiple prosecutions of senior management and individuals will become a tactic adopted by the Crown Prosecution Service in future corporate manslaughter cases is an issue we will be following closely.

Since the latest corporate manslaughter offence is still in its infancy, case law establishing the boundaries of the new legislation is, at present, based on the prosecution and conviction of Cotswold Geotechnical Holdings earlier last year (see next article). It remains to be seen whether the trial of Lion Steel this year will provide clearer guidance on the remit and parameters of the new offence.

HEALTH AND SAFETY

Britain headed for gold as Olympics draw near

With the forthcoming London 2012 Olympics fast-approaching, commitment to health and safety on the largest construction site in Europe has remained paramount. The HSE has worked closely with the Olympic Delivery Authority to ensure that CDM Designers and Principal Contractors have robust risk management systems in place. One key objective was to encourage strong leadership and sharing of good practice throughout the construction phase of the project.

Thankfully to date the project has an exemplary safety record with the construction being brought in on time with reports of only 114 injuries and eight dangerous occurrences. The reportable accident rate at the Olympic Park is around one third of the construction industry average and below the national average for all workplaces. However, one senior HSE inspector suggested that given the recent cuts to the regulator's budget and the consequent impact on how it carries out its proactive work, this success may be a one-off.

Either way it seems the success of the Olympic project highlights the benefit of careful planning and consultation, and this success on such a large scale is proof of the good results that can be achieved and, hopefully, maintained.

Businesses to challenge unfair regulatory decisions

On 9 January 2012 it was announced that businesses who believe they have been the recipients of erroneous or over the top advice from the Health and Safety Executive ("HSE") or Local Authority Inspectors can now appeal those decisions to an independent panel, known as the Regulatory Challenge Panel ("the Panel").

The Government had announced its intention to set up such a body as part of its response to the findings of Professor Löfstedt's report in November 2011, "Reclaiming health and safety for all: an independent review of health and safety Regulation", which called for a process to challenge cases of incorrect or over-application of health and safety legislation.

Whilst it appears that the Panel will only consider cases in a limited number of circumstances, businesses are advised to understand the function of the Panel should they need an avenue to challenge potentially erroneous regulatory advice from the HSE or a Local Authority.

The Panel is now up and running to consider issues that businesses believe are "incorrect, or go beyond what is required to control the risk adequately". Key features of the arrangements are:

  • The Panel is chaired by Judith Hackitt, Chair of the HSE, and comprised of 11 independent panel members who have the competence and experience to assess advice that has been given on regulatory matters
  • It will only deal with decisions of regulatory advice to control risks which stop short of enforcement action
  • The Panel will not look at issues where other independent appeals processes exist, such as for enforcement notices or prosecutions
  • The Panel will only consider cases from 30 June 2011 onwards
  • The outcome will be made available on the HSE website

Whilst the HSE have seemingly welcomed the introduction of the Panel, before businesses resort to raising an issue with the Panel they should first seek to resolve the matter directly with the HSE or Local Authority Inspector and their respective managers. With the early indication being that the Panel will only hear carefully considered and substantial claims of injustice or unfairness, the circumstances in which appeals can be heard may well prove limited. It remains to be seen just how far the Panel will go in upholding challenges brought and whether it will be reluctant in taking decisions that could potentially undermine the authority of Inspectors.

Businesses will also need to consider carefully whether to appeal since details will appear on the HSE's website and will therefore be in the public domain, potentially raising brand damage issues and the potential for adverse publicity.

Changes to the reporting of injuries

On 6 April 2012 the changes to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 ("RIDDOR"), which extends the period before an injury or accident needs to be reported from three days to seven days following Lord Young's recommendations in the 2010 paper "Common Sense Common Safety", came into force.

RIDDOR previously required the "responsible person" (who will usually be the employer but could also be a manager, operator, owner or appointed person) to report an injury which resulted in the worker being unable to carry out their usual work activities for more than three consecutive calendar days.

The HSE, in line with Lord Young's suggestion, advised amending RIDDOR so that the duty to report now applies where the worker has been incapacitated for more than seven consecutive days, rather than three. Additionally, the time limit for reporting has been changed, so the responsible person is required to report the seven-day injury to the enforcing authority within 15 days of the accident, rather than the current 10.

The alleged main advantage of the change is that there would be a significant reduction in the number of RIDDOR reports that a business would need to make, thereby reducing the cost and administrative burden. However, given that the responsible person will still need to record over three day injuries (in order to allow them to continue to manage risks arising in the workplace), but not RIDDOR report them, it is unclear just how significant such a saving would be. Moreover, it is debatable whether the proposed change would adequately deal with the culture of under-reporting of these injuries, currently prevalent in small businesses.

The amendments became effective from 6 April 2012 and the HSE will consider a wider review of RIDDOR 12 months after this. In anticipation of the changes, the HSE published an updated guide to the reporting regime which provides a full explanation as to the new requirements.

Reducing the regulatory burden – health and safety Red Tape Challenge

Health and safety Regulations have recently come under new scrutiny as part of the Government's Red Tape Challenge. As health and safety regulation is one of the six themes open to comments throughout the whole of the Red Tape Challenge campaign there is still plenty of time to contribute to the debate, which closes in April 2013, at www.redtapechallenge.cabinetoffice.gov.uk.

The scheme, originally launched for two years in April 2011, invites members of the public to suggest those general Regulations which they consider should be scrapped, merged, simplified or improved. These include Regulations covering employment, pensions and equality law. Around 200 health and safety Regulations will be under debate during the life of the Challenge. With David Cameron recently declaring that the "monster" of health and safety culture was hampering business growth, a tough approach is expected by the Government.

The Red Tape Challenge aims to look at over 21,000 statutory rules and Regulations that are active in the UK today. The priority will be to focus on Regulations that place the biggest burdens on businesses and society. Importantly, the default presumption will be that burdensome Regulations will go, unless Government departments can justify why they are needed. In order to effectively deliver the Challenge, consultation periods are run every few weeks, during which the Government invites comments on a specific area of Regulation.

The health and safety Regulations subject to public scrutiny fall under four areas: general health and safety; major hazard industries; higher risk workplaces; and dealing with hazardous chemicals and materials. Fourteen legislative measures (namely one Act, twelve Regulations and one Order) as well as one Approved Code of Practice have so far been identified as suitable for revocation. The Challenge is an opportunity for people to directly influence and simplify the future of health and safety Regulation and to support business growth in Britain.

Progress reports will be added online to enable businesses and the public to see what action has been or will be taken. Whilst there has already been an influx of comments on this topic from across the industry, it remains to be seen the extent to which the Government will embrace the proposals.

The Löfstedt report – what is the current state of play?

The process for simplifying health and safety laws and reducing the burden of unnecessary Regulation on businesses while maintaining Great Britain's health and safety performance has begun following publication on 28 November 2011 of Professor Ragnar Löfstedt's report "Reclaiming health and safety for all: an independent review of health and safety Regulation".

The report comes after Professor Löfstedt was tasked with leading the Government's "Independent Review of Health and Safety Legislation". With the report setting out a number of potentially ambitious and far-reaching proposals, this article identifies the key recommendations.

The key recommendations

In general terms, the thrust of the report is to:

  • reduce the regulatory requirements on business where they do not lead to improved health and safety outcomes, and
  • remove pressures on business to go beyond what the Regulations require, enabling them to reclaim ownership of the management of health and safety

So what is the current state of play? In relation to the following proposals, action shall be taken by the Government as a priority:

  1. The self-employed whose work activities pose no potential risk of harm to others should be exempted from health and safety law.

    This is to bring the UK into line with other European countries, which take a more proportionate approach when applying health and safety law to the self-employed.
  2. The HSE will review all of its Approved Codes of Practice ("ACOPs") in order to ensure that there is clarity over the requirements of the Regulations. The initial phase of the review should be completed by June 2012 so businesses have certainty about what is planned and when changes to the ACOPs can be anticipated.
  3. The Government should work more closely with the European Commission and others, particularly during the planned review of EU health and safety legislation in 2013, to ensure that both new and existing EU health and safety legislation is risk-based and evidence-based.

    This is to tackle the various requirements originating from the EU that impose unnecessary costs on business without any obvious benefits.
  4. The HSE should undertake a programme of sector- specific consolidations to be completed by April 2015 to ensure that the regulatory framework is simpler and easier to understand.

    In response to this, the Government has recently announced that 84 per cent of health and safety Regulations will be scrapped or improved – it is anticipated that older, more obsolete Regulations will go, with the substantive legislation remaining.
  5. The HSE should be given the power to direct all local authority health and safety inspection and enforcement activity, in order to ensure that it is consistent and targeted towards the most risky workplaces.
  6. Regulations that impose "strict liability" (where an employer is legally responsible irrespective of any knowledge, intent or recklessness on their part) should be reviewed and either qualified with a "reasonably practicable" defence where strict liability is not absolutely necessary or amended so civil liability does not attach to a breach of those provisions.

Other significant proposals

Whilst the central aims of the report have been outlined above, businesses should also note these further proposals:

  • Various Regulations (including the Construction (Design and Management) Regulations 2007, the Work at Height Regulations 2005 and the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995) should be reviewed and clarified so that organisations understand how to comply with the requirements
  • All those involved in health and safety prosecutions should work together with the aim of commencing these within three years of an incident occurring. This aims to address the concern that, in some cases, HSE enforcement action does not take place until several years after the incident. This can leave organisations and individuals with the threat of prosecution hanging over their heads for an indefinite period of time. At present, there is no suggestion that a statutory time limit will be introduced

What are the implications for businesses?

These developments could potentially have far reaching consequences for the implementation and enforcement of health and safety across the country. The HSE has said it would meet the timetable set by the Government by implementing the recommendations for which it was responsible. This extends to 2014 for some issues, with others requiring completion as early as June 2012.

It remains to be seen whether this ambitious timetable will be achievable. We will continue to monitor the developments closely and further updates shall follow as the Government begins to work through the task of implementing the recommendations.

Businesses to bear costs of HSE assistance

The implementation of new Regulations that would place a duty on the HSE to recover their costs where employers are found to be in contravention of health and safety law has been delayed by 6 months and should take effect in October 2012, rather than April 2012 as originally expected, to allow the HSE time to discuss the technical details.

"Fee for intervention", as it is known, was part of the Government's initiative to reform the health and safety system in Britain and will have significant implications for those who breach their obligations.

The HSE's programme director, Gordan MacDonald said, "The Government has agreed that it is right that those who break the law should pay their fair share of the costs to put things right- and not the public purse. Discussions are still taking place on the technical details of the scheme, which we expect to conclude soon. Therefore, the scheme will not be introduced in April but at the next available opportunity, which is likely to be in October 2012."

A "dry-run" of the scheme ran between October and December 2011, with a "shadow run" involving all staff who will play a role in the scheme currently underway.

So what are the key elements of the scheme that employers should take note of?

  • The HSE would not have discretion on whether to apply "fee for intervention" but would be under a duty to recover its costs for all formal written interventions, including, for example, statutory notices and formal letters of advice
  • Local authorities will not be included in the scheme, which is likely to lead to businesses experiencing a lack of consistency between the regulators
  • Costs would be recovered from the point where the "contravention" was identified, generally during an inspection and before any decision has been taken to prosecute, up to the point where the HSE's involvement in supporting the employer in putting matters right has concluded
  • A "contravention" means that there has been a breach of health and safety legislation and a requirement to rectify that breach has been made formally in writing to the party concerned
  • The cost recovery would stop if, and as soon as, prosecution proceedings were commenced for the breaches
  • A resolution procedure will be available to businesses, allowing them to either challenge the HSE's decision to intervene or dispute their level of costs recovered

So what impact will the scheme have? The rationale is that it is reasonable that those who are responsible for contravention of health and safety standards should pay the costs of putting things right, so in theory those who comply with the law will have little to fear. Similarly, employers who commit non-material breaches where no formal intervention is required, would also not be liable.

Why your business cannot afford to ignore asbestos

Asbestos remains at the forefront of health and safety prosecutions, and it is clear that businesses ignore their obligations under the legislation at their peril. With the introduction of the Control of Asbestos Regulations 2012, businesses are advised to remain abreast of the changes to ensure compliance with their duties. The recent Marks and Spencer Plc ("M&S") conviction serves as a stark reminder to those who don't!

Changes to the Control of Asbestos Regulations

On 6 April 2012, the Control of Asbestos Regulations 2012 came into force to implement the changes required by the European Commission regarding the protection of workers from the risks of exposure to asbestos at work. In practice, the changes will mean that fewer types of lower risk work will be exempt from the three requirements to:

  • notify the work to the relevant enforcing authority
  • carry out medical examinations; and
  • keep registers of work with asbestos

The Control of Asbestos Regulations 2006 have been revoked in their entirety and the new changes implement a single set of revised asbestos duties.

M&S receives record fine

The significance of complying with asbestos legislation, and the ramifications of non-compliance, is abundantly clear from the recent sentence imposed on M&S.

In September 2011 M&S was fined £1 million and ordered to pay costs of £600,000 for putting members of the public, staff and construction workers at risk of exposure to asbestos-containing materials during the refurbishment of two of their stores. Three

of its contractors, Willmott Dixon Construction Limited, PA Realisations Limited and Styles and Wood Limited, were also fined for their role in the project. During the trial in July 2011, the Court heard how M&S did not allocate sufficient time and space for the works and failed to carry out adequate surveys to identify the location of asbestos in the stores. The Court damningly found that M&S was more interested in profits than in planning asbestos removal and more concerned about the works being "unsightly" and "interfering with the shopping experience" of customers than the potential for people to be exposed to the asbestos-containing material.

What does the future hold?

Both the changes to the legislation and the M&S fine should alert organisations that they cannot afford to underestimate the importance of asbestos compliance. The fine imposed on M&S is a stark warning to any organisation which seeks to put profit before safety and marks a growing trend towards hefty fines for corporations that breach their obligations, even where the breach has not resulted in a fatality or serious injury. The figures send a strong message to all organisations to thoroughly consider and review their own asbestos practices to ensure that their brand is not damaged by the adverse PR associated with a prosecution.

FOOD SAFETY

Use-bys: are they out of date?

In one of the most important decisions for consumers and the food industry on the application of food law for nearly 40 years, the High Court has considered the offence of selling food after its "use-by" date, contrary to Regulation 44(1)(d) Food Labelling Regulations 1996. The ruling in Torfaen County Borough Council v Douglas Willis Limited in January 2012, comes at a time when a wider debate is raging over "use-by" dates.

The question for the Court in this case related to the correct construction of Regulation 44(1)(d), which states that any person who sells food after its "use-by" date is guilty of an offence.

How did the case arise?

Before looking at the decision reached by the Court, it is helpful to briefly consider the background. A food processing company bought in fresh meat and meat products from a supplier, properly labelled with "use-by" dates because they are classed as highly perishable goods. It then processed, packaged, labelled and subsequently froze those products for onward sale. At the point of freezing the use-by dates on the products were still valid. However, at the time of the alleged offences the products in question were still being stored in freezers, but the "use-by" dates had been exceeded.

Frozen foods do not require a "use-by" date as they are not considered to be highly perishable, although normal practice would be to have a "best before" date. The Prosecution's case was that any perishable item that is classed by the seller as such and is given a "use-by" date remains in the same category even if it is subsequently frozen and, consequently, an offence had been committed by the company.

What was the Court's decision?

The Court held that in order to obtain a conviction for an offence under the Regulation, the Prosecution must prove:

  1. At the point that the food was ready for delivery to the ultimate consumer or to a caterer, it was "highly perishable" and so needed to be labelled with a "use-by" date
  2. The defendant was, at the time of the alleged offence, selling the food within the definition of "sell" in Regulation 2; and
  3. At the time of the alleged offence, the date on the "use-by" label had passed

In summary, the fact that food being sold carries a "use-by" date is, on the face of it, evidence that the food was highly perishable and therefore required such a date. However, significantly the Court held that this can be challenged by the Defence showing that the "use-by" date was not required.

What are the potential implications?

This judgment could have significant consequences. As a minimum, it will make it more difficult for successful prosecutions for an offence under Regulation 44(1)(d) as it will be open to the Defence to argue that it cannot be proved beyond reasonable doubt that the food was highly perishable at the time it was sold and thus was required to be labelled with a "use-by" date.

This would not be limited solely to frozen food as such a defence could be argued in many other cases as well, normally through reliance upon microbiological evidence.

This is not an end to the matter since the Prosecution has applied for a certificate that the issues raised in the case are ones of general public importance so that consideration can be given to petitioning the Supreme Court for permission to appeal. We shall continue to monitor the progress of this case for any further developments.

Overhaul of food labelling rules pushes forward radical changes

An overhaul of the food labelling rules marks the move towards the simplification and clarification of the labelling requirements. The long-awaited new EU Food Information Regulation has moved one step closer to coming into force, following adoption by the European Council in September 2011. However, controversy continues to rage about certain aspects of the requirements and some thorny issues, for example the debate surrounding "traffic light labelling", may still re-emerge.

The Regulation sets down labelling requirements in a bid to simplify and streamline rules, covering areas including allergens, nano-ingredients and imitation foods. It aims to improve and simplify the presentation of nutritional information on packs and legibility, moving away from the variety of food labels presented to customers towards clear, understandable information. Whilst the general requirements on how nutritional information should be displayed on food labels are set out, there is room for Member States to promote additional national schemes provided they do not undermine the EU rules. The Regulation also makes country of origin information compulsory on the packaging of meat and other products, but has failed to address problems over labels that may need to be changed on a seasonal basis, for example the labelling of vegetables on vegetable stews.

The Regulation has now been published in the EU's official journal, but once it comes into force producers will have a three-year transitional period to adopt it. It remains to be seen what practical issues will emerge from the requirements, with questions already being asked as to who will foot the bill for the inevitable costs involved.

ROAD TRAFFIC AND TRANSPORT

On-the-spot fines for careless drivers

As part of a Government strategy to make Britain's roads safer, police are to be granted powers to issue fixed penalty notices to drivers deemed to be driving carelessly. The approach is likely to be introduced during 2012 and would give the police more options as to how to deal with this wide-reaching offence.

Some examples of careless driving where an on-the-spot fine could be appropriate include tailgating, overtaking on the left or cutting up other motorists on the road. Offenders could get a fine of at least £80 and three points on their licence. Currently motorists who have driven in a careless manner have to be prosecuted through the courts. Under the new plans, they will still have that option should they contest the offence. In some cases, motorists will be spared the penalty and points if they agree to undergo training, at their own expense.

However, many are concerned that fines may not necessarily be the right approach for the offence of careless driving as, unlike speeding, the cases are not always clear-cut and need to be given due consideration. Moreover, with police services already subject to significant cuts, it is far from clear that there are the necessary resources to ensure adequate enforcement and make this option a viable alternative to prosecution.

The Working Time Regulations – a waste of time?

The Road Transport (Working Time) Regulations 2005 came into force over 6 years ago and yet a recent study has revealed that the Vehicle and Operator Services Agency (VOSA) has yet to prosecute any transport operator for breaches of the legislation.

The Regulations mean that drivers' working time must not exceed an average of 48 hours a week over a 17 week period. A driver can work up to 60 hours in any single week provided the average 48 hour working week is not exceeded in each reference period. VOSA carried out 565 visits to operators' premises in the third quarter of 2010, resulting in advice being given to 79 companies. No improvement notices have been issued, the next stage if advice is ignored.

VOSA says that compliance with the Working Time Directive (the EU Directive implemented by the Regulations) is checked on all operator visits, whether or not that was the main purpose, with a spokesperson stating, "We have not prosecuted anyone under the Regulations, preferring to prosecute for drivers' hours offences where found". VOSA's reluctance to prosecute under the Regulations questions whether there will ever be a prosecution, and the effectiveness of the Regulations if such powers are not going to be used.

New offence of dangerous driving causing serious injury

Following campaigns for tougher jail terms for drivers who cause serious life-changing injuries, an offence of "causing serious injury by dangerous driving" is to be introduced that will more than double the penalties for those behaving recklessly on the roads. It will help bridge the gap that currently exists between the offence of dangerous driving, punishable with up to two years in prison, and causing death by dangerous driving, with a maximum 14 year sentence. It is proposed that the new offence will carry a maximum of 5 years imprisonment and/or an unlimited fine.

The new offence follows a campaign by the parents of Cerys Edwards, who suffered catastrophic injuries when her family's car was hit by a vehicle travelling at more than 70mph in a 30mph area. The driver was jailed for 21 months and released after serving just six. There are many similar cases resulting in serious injury rather than death which are deemed to have yielded unsatisfactory results as Judges' hands have been tied by the maximum penalty.

The new offence will be introduced in the Government's Legal Aid, Sentencing and Punishment of Offenders Bill, currently making its way through Parliament. Further clarity is still required to flesh out the scope of the proposed offence, particularly in relation to exactly how the term "serious injury" will be defined.

Increase in road deaths feared following proposals to raise speed limit

A formal consultation is to be launched in early 2012 on whether motorists should be allowed to drive at 80mph on motorways. The scope of the consultation could go much further than originally anticipated, with ministers considering extending the proposed higher limit to a far wider range of roads than had originally been envisaged.

Those in support of the proposals believe the increase will aid the economy and reflect the advances in car safety technology of recent years. However, the plans have divided Ministers, some of whom oppose the plans because it would lead to an increase in carbon emissions. Road safety groups have also expressed concern about the proposals, suggesting that existing police guidelines, which allow motorists a measure of leeway of 10 per cent plus 2mph, mean drivers would be unlikely to face prosecution at speeds lower than 90mph. There is also the issue of whether the increased limit would be safe for all types of vehicles.

ENVIRONMENTAL

Individuals face imprisonment for waste offences

The recent sentencing of an individual to 20 months' imprisonment warns waste businesses that the courts will take a dim view of those who repeatedly breach their obligations.

The Chesterfield man was sentenced on 14 December 2011 by Derby Crown Court after being found guilty of repeated waste crimes. Robert Byard, who has previous waste convictions, was also ordered to pay significant costs of £53,949 to the Environment Agency.

The prosecution concerned the running of a skip hire business with no permit. Environmental crime officers had conducted a number of surveillance operations and had seen household waste, electrical waste, wood and contaminated waste being delivered to site. Mr Byard had made considerable savings by operating the site without a permit and was therefore operating at an advantage to its competitors. The court heard how Mr Byard had a history of previous convictions and was currently on a suspended sentence after being found guilty of 20 similar offences in 2008. He had also been prosecuted in 1997 and 2000.

Businesses and individuals should take heed that, at sentencing, the Judge said the sentence imposed was intended to send out a strong message to others. He described the actions of Mr Byard as "deliberate, persistent flouting of the law and regulations" and added that the courts will not ignore persistent breaches of the rules by waste management businesses.

Will civil sanctions trump criminal prosecution?

The Environment Agency ("EA") became the first enforcement body to be granted new civil sanctions as an alternative to criminal prosecution. Since the grant of these new powers, civil sanctions have been considered by the EA as another option instead of prosecuting both businesses and individuals in an ever-increasing number of cases..

With civil sanctions threatening to become the most utilised approach for low-level environmental offences, it is important that your business is aware of how these powers can be used and the potential ramifications.

What are civil sanctions?

The civil sanctions regime is intended to promote a different and more proportionate response to breaches of environmental law. Civil sanctions, such as compliance notices, restoration notices, enforcement undertakings, monetary penalties and stop notices, are an alternative to criminal prosecution for certain identified offences.

The aim is that those organisations that have a good compliance record, but may have slipped up, will benefit whilst criminal prosecution will be left for only the most serious offences or serial offenders. To ensure this new regime has teeth, a variety of enforcement options, including prosecution for the original offence, are available if the recipient fails to comply with the civil sanction.

When are they used?

Currently, the most widely-used civil sanction has been the enforcement undertaking. Enforcement undertakings are formal voluntary offers made by businesses to correct their behaviour and make amends for any effect that behaviour has already had on the environment. The undertaking will set out the steps the business will take to put right any harm caused and can include providing compensation for the local community.

If the EA accepts the proposals, the enforcement undertaking becomes a legally binding voluntary agreement. If the enforcement undertaking is not complied with, it is open to the EA to prosecute the offender for the original offence.

We are one of the first teams to persuade the EA to use these innovative new powers by accepting an enforcement undertaking for a waste packaging offence.

What are the benefits?

Despite the EA having only gained the ability to impose civil sanctions since January 2011, their use was called into question in light of statements by Oliver Letwin, Minister of State for Policy, that the regime is "intolerable". However, it now seems that these objections have not prevailed, with the regime evidently working well at present. Indeed, civil sanctions will soon become available for a wider range of offences, with the regime to be extended to cover environmental permitting offences in April 2012.

Civil sanctions give the EA more flexibility in the way in which it deals with breaches of environmental law and it is expected that more and more businesses will seek to take advantage of this.

Businesses should not however be fooled into thinking that the sanctions are a soft option. One organisation appealed against the imposition of a variable monetary penalty in the extraordinary sum of £500,000. Moreover, although the imposition of a civil sanction will avoid the need for a court appearance and will not count as a previous conviction, the EA are required to publish on their website the details of any civil sanctions they have imposed. Businesses and individuals should remain alert to this fact as publication could be just as damaging as a prosecution.

If used effectively, the Government hopes the sanctions will result in a streamlined regulation of environmental obligations benefitting both the regulator and those they regulate, and become a real alternative to criminal prosecution.

Confiscation Orders – the Environment Agency's deadliest weapon?

The Environment Agency's ("EA") war on waste continued earlier this month with a six figure recovery under the Proceeds of Crime Act 2002 ("POCA"). The case provides a further reminder that businesses operating in the waste sector must comply or risk the application and consequences of POCA.

The Facts

Landlord Kevin Patrick Henry O'Sullivan had let 16 industrial units on his land, which were used for vehicle breaking, skip waste transfer, waste burning and scrap storage. Indicating that 80% of the tenants had little or no grasp of English, Mr O'Sullivan told the Court that he had assumed all had the requisite Environmental Permits. Unfortunately, they did not. Police aerial photographs taken in 2009 identified the presence of illegal waste sites on Mr O'Sullivan's land. The EA then visited the site several times during 2010 to investigate before launching criminal proceedings against the landlord. Some of the waste treated at the sites was hazardous and contaminated the ground whilst rubber, plastics and treated wood were burned causing a nuisance and potential harm to human health. EA officers also found that the units let by Mr O'Sullivan did not have concrete surfaces or proper drainage systems.

Sentencing Mr O'Sullivan in respect of 12 separate environmental offences, Chelmsford Crown Court imposed fines, a costs order and a victim surcharge payment amounting to £48,000. In addition, the Court ordered Mr O'Sullivan to repay the £207,000 he had received in rent payments from tenants operating illegal waste sites following an EA application under POCA.

This is not the largest sum recovered by the EA using the tools of POCA; that dubious honour currently rests with Amrik Johal of Slough who was ordered to repay £881,513 in August 2011. His case, like that of Mr O'Sullivan is another sobering lesson for those falling foul of waste legislation.

Using POCA in environmental cases

Following the introduction of POCA in March 2003, provision has existed for prosecutors in most criminal cases to seek a confiscation order requiring the repayment of sums obtained through convicted wrongdoing.

Confiscation orders are a powerful weapon for the EA in sending a warning to those operating in the waste sector. Calculation of the sums due under POCA is a relatively simple task, whether it be the amounts saved in operating without an Environmental Permit, the sums guarded by inappropriately tipping waste or in Mr O'Sullivan's case, the money made in rental payments from tenants operating illegal waste sites.

Funding for the EA

Whilst utilising the provisions of POCA is a powerful deterrent in the EA's armoury, usefully up to 37.5% of sums recovered under the legislation can be paid back to the enforcing authority. The EA sees this as a valuable source of income to re-invest back into its enforcement work. With £5 million already promised by way of investment in the Waste Crime Taskforce in the next two years, it is easy to see why this source of additional income is so welcome.

The Statistics

Messrs Johal and O'Sullivan are just two of the many waste criminals who have felt the full force of the EA's enforcement arm in recent years. Upon launching the Waste Crime Taskforce, the EA issued some startling statistics:-

  • There are approximately 600 active illegal waste sites, more than 50% of which are within 50 metres of a sensitive receptor such as a school, a residential property or a sensitive environmental site.
  • In 2010/11, the EA either stopped or brought into regulation 1,195 illegal waste sites.
  • In the same period, over 400 waste prosecutions were brought.
  • In the last six months of 2011, the EA was granted orders under POCA to recover almost £1 million from environmental offenders.

The EA's view

"Waste crime is a serious offence that poses a risk to human health and can damage the environment. The Environment Agency is working with all enforcement agencies to stamp it out. If you're involved in illegal waste activities, you should be looking over your shoulder and expecting a visit from our enforcement officers".

The words of the EA's Chief Executive Dr Paul Leinster, coupled with the designated Waste Crime Task Force are a clear statement of intent to be welcomed by responsible operators in the waste industry, environmentalists and concerned neighbours alike.

Lessons for the waste sector

This renewed vigour from the EA may see recoveries of this nature become more commonplace as the Agency continues to set the pace for other regulators when it comes to creatively and constructively using alternative enforcement methods to their advantage.

Whilst the cases of Messrs Johal and O'Sullivan are extreme examples, those operating in the waste sector must ensure they comply with all relevant legislation to avoid the spectre of double punishment via both criminal and POCA proceedings.

FIRE SAFETY

Fines for fire breaches send clear message to industry

Retail giant New Look found itself subject to a staggering £400,000 fine, upheld by the Court of Appeal, for failings under the Regulatory Reform (Fire Safety) Order 2005. The level of fine was remarkable given that even though the alleged failings did not result in death or serious injury the court held that the figure of £100,000, as set out in the Sentencing Guidelines Council guidelines for health and safety offences resulting in a death, was not a ceiling which fines for offences not involving a fatality could not exceed. This came following submissions as to whether a principle had been established that a higher level of fine was appropriate for breaches of fire safety duties than for health and safety.

Investigation into New Look's Oxford Street premises began after a fire which broke out on 26 April 2009. Around 400 people were evacuated from the building. The cause remained unknown but was not attributed to any failings on New Look's part. However, it was found that escape routes were not clearly identified and were obstructed, in some places by combustible materials. The court also said that the absence of competent fire marshals to coordinate the evacuation showed the retailer's failure to implement an organised system and its shortcomings in relation to staff training.

Now, more recent fines have reinforced the message that retailers and other organisations responsible for fire safety can ill afford complacency when it comes to compliance with the Regulations. In July 2011, Innovia Firms, which manufactures and distributes film for making movies, was fined £90,000 for fire safety breaches following a blaze that occurred at its Cumbria factory in 2006 and left one employee in intensive care for six weeks. Similarly, in August last year, two waste disposal companies were ordered to pay just under £225,000 in total for their roles in a huge blaze that took hold of an industrial estate in Crewe.

In light of the growing trend towards substantial fines for fire breaches, whatever the outcome, those in control of premises subject to the Regulations should ensure their specific obligations have been adequately identified and addressed or else risk facing similarly robust penalties from the courts.

Don't get your fingers burnt in Court!

In a landmark case, a Bartlet hotel owner and his business have paid the price for ignoring fire safety laws and been hit with fines totalling £210,000 following a successful prosecution by London Fire Brigade.

The case is likely to attract the attention of fire and rescue services across the UK, believed to be the first time that a jury – rather than Magistrates or an individual Judge - has convicted a defendant under the Regulatory Reform (Fire Safety) Order 2005 (the "RRO").

Investigations were commenced following a fire at the hotel on 18 May 2008. London Fire Brigade was called as the blaze spread quickly from a first floor guest bedroom, up a staircase to the floor above and along a corridor. Three people escaped from the fire, two by using the stairs and a third by climbing out of a second floor window.

Following the blaze, fire safety inspectors visited the hotel and raised a number of concerns. These included defective fire doors, blocked escape routes and no smoke alarms in some of the hotel's bedrooms. The Company's sole director, Michael Wilson, was also unable to produce a suitable and sufficient fire risk assessment and was found not to have provided staff with adequate fire safety training.

Both the Chumleigh Lodge Hotel Limited and Michael Wilson were prosecuted and subsequently pleaded not guilty to a total of 12 offences under the RRO. The Trial was heard at Blackfriars Crown Court.

Not only was the company found guilty of six offences, but Mr Wilson, in his individual capacity, was also convicted of six separate offences involving the following breaches of the RRO:

  • Risk Assessment – failure to make a suitable and sufficient assessment of risk
  • Fire-fighting and fire detection – failure to adequately equip premises with fire detectors
  • Emergency routes and exits – failure to ensure emergency routes from the premises were kept clear
  • Maintenance – failure to ensure premises, facilities, equipment or devices were maintained in an efficient state, in working order and in good repair (two counts); and
  • Training – failure to provide staff with adequate safety training.

At a sentence hearing on 6 February 2012, Mr Wilson was ordered to pay a fine in the sum of £180,000, with Chumleigh Lodge Hotel Limited being ordered to pay a further £30,000. In addition, the defendants were ordered to pay Prosecution costs totalling £50,000 and compensation in the sum of £2,000 to the guest who escaped through a second floor window.

The RRO applies to virtually all commercial premises such as retail outlets, pubs, nightclubs, hotels and warehouses. Under the legislation, employers or those responsible for premises, are required by law to carry out a fire risk assessment and act on its findings. The risk assessment should also identify actions which need to be taken - such as blocked fire exits, inadequate fire alarms and poor training for staff - in order to protect the building from fire. It must be kept under constant review and amended if any changes are made to the premises.

The maximum penalty for an offence under the RRO is an unlimited fine in a Crown Court and/or a term of imprisonment for up to 2 years. As this recent case highlights, Courts are taking an ever-more stringent approach in relation to fire safety and are imposing large fines on businesses and individuals alike.

TRADING STANDARDS

Greater clarity on CPR's following third prosecution

The Consumer Protection from Unfair Trading Regulations 2008 ("CPR's"), can result in criminal investigation and prosecution for an organisation that engages in unfair commercial practices which distort consumer's decisions.

The scope and remit of the legislation continues to be tested in the courts following the third prosecution last year. In May 2011, the High Court ruled that gym membership agreements, drawn up by Ashbourne Management Services Limited, were unfair in a number of key respects. Businesses across all industries should take heed of the decision as it is clear that a company will not be able to hide behind contract terms to engage in intrinsically unfair commercial practices.

Essentially Ashbourne Management Services Ltd draws up membership agreements and then collects members' payments, for over 700 gym clubs. The Court ruled that the agreements were designed to trap customers by tying them into minimum terms of between one and three years. The Court also considered that the terms exploited the naivety and inexperience of the average consumer using gym clubs at the lower end of the market.

Furthermore, the practice of pressurising members to pay by describing those who wished to terminate their agreements before the end of the minimum period as "defaulters" and registering, or threatening to register, that information with credit reference agencies was an unfair commercial practice contrary to CPR. It was also an unfair commercial practice to demand payment when the customer had a genuine dispute about the quality of the gym. Following these findings an "Enforcement Order", setting out what the company may no longer do or say to consumers, was granted by the High Court.

The decision is important as the Court's reasoning can be applied not just to gym memberships but to other types of contract. Further clarification on CPR is also anticipated in light of the referral by the Court of Appeal to the European Court of Justice of a number of questions on the interpretation of the legislation. This followed a decision in the High Court regarding Purely Creative's promotion of prize-draw scratch cards, which raised a number of pertinent issues regarding interpretation. Organisations are therefore advised to review their practices and take note of the growing case law in this area as it will continue to provide welcome guidance to businesses to ensure they do not fall foul of the provisions.

UK to eliminate 'bargain booze'

Recent moves in Scotland to address perceived alcohol issues could soon be adopted in the rest of the United Kingdom, following a number of campaigns that have highlighted concerns surrounding the sale of 'bargain booze' to youngsters.

The Scottish Government recently adopted legislation to address potential alcohol problems in the country, particularly in relation to access by minors and the sale of large quantities to individuals, with the Alcohol etc. (Scotland) Act 2010, which came into force on 1 October 2011. In addition, the Government has sought to introduce a minimum cost per unit of alcohol which was subsequently rejected by MSPs. A determined Scottish Government made a second bid in November 2011 with the Alcohol (Minimum Pricing) Bill 2011 to bring in this legislation which would require a minimum cost price of 45p per unit of alcohol.

The British Prime Minister, David Cameron, is said to have ordered officials to draw up similar plans in December 2011 to also address the issue of 'bargain booze' being sold in shops and supermarkets throughout the UK. Should such plans receive the backing of MPs then it could potentially be implemented in the latter stages of 2012.

The effect of this move on retailers and consumers alike throughout the UK could be substantial. Fixing minimum prices means that retailers will be restricted in offering a more competitive price than their rivals and has the effect of weakening competition between retailers. Over time, this weakened competition means there is less incentive for retailers and manufacturers to reduce their costs. The Office of Fair Trading has stated that it is aware of the recommendations and will monitor the situation to ensure that it does not result in a breach of competition law.

Knock knock – Who's there? – You are being prosecuted!

In the first case of its kind on Tuesday 24th January 2012 the Court of Appeal upheld prison sentences against a Sales Manager and a Director of a Company, who engaged in unfair and aggressive sales practices when selling mobility aids to the elderly.

The prosecution was brought by Derbyshire County Council Trading Standards Department, who alleged that Rodney Stone and Geoffrey Moore, a Director and Sales Manager respectively of Reo Marketing Limited, had committed a series of offences under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).

The CPRs remain relatively new Regulations and cases rarely come before either the Crown Court or the Court of Appeal. The CPRs apply to all traders, including businesses and individuals and they prohibit all unfair commercial practices.

Shortly after Reo Marketing Limited started to trade, Derbyshire County Council Trading Standards received a number of complaints, from elderly people, as to the sales methods used by representatives of the Company.

The investigation revealed that the Company's sales system included the following techniques:

  • Cold-calling elderly potential customers via the telephone, without making clear the purpose of the call
  • During the phone call a sales script would be followed in which the caller would say that they were conducting a survey of mobility needs and that the person may be eligible for a free mobility assessment
  • Thereafter, a follow-up call was made to arrange an appointment for a so-called "mobility adviser" to visit the elderly person. These advisers were in reality salesmen who worked for the Company on a self-employed basis and earned commission only. In many instances the elderly people had no idea that they were being visited by a salesperson until some way through the visit
  • The script to be followed by the salesperson was written by Moore and contained ploys which included asking to use the bathroom so that the salesperson could see what mobility aids were already in use or asking for a cup of tea so that they could evaluate the customer's mobility
  • Deliberate misrepresentations were sometimes made as to the suitability of a product for a customer
  • A common feature was that the salesperson would outstay their welcome to the point that the customer would become exhausted and would agree to a sale in order to get rid of them

Both defendants pleaded guilty at Derby Crown Court in August 2011. When sentenced Rodney Stone received three years imprisonment and Geoffrey Moore received four years imprisonment. Both sentences were appealed to the Court of Appeal on the basis they were manifestly excessive.

The Court of Appeal partially allowed the appeal, but confirmed that they had no doubt that for persistent offending of this nature substantial, immediate, custodial sentences were required.

Geoffrey Moore's sentence was reduced to 30 months' imprisonment and Rodney Stone's was cut to two years' imprisonment.

These sentences clearly illustrate the Court of Appeal's view on the seriousness of this type of offending and indicates the likely penalties to be applied to individuals, including both Directors and Senior Managers of companies, who commit similar offences in the future.

Footnote

* STOP PRESS - Clyde and Co is instructed to represent one of the directors in these proceedings and will keep you updated regarding any guidance given by the Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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