There is a developing trend in many areas of regulation to prosecute individuals as well as organisations. This is not just the case in the UK but in other countries as well.
Only last year, an American prosecutor Sung-Hee Suh, addressing a conference on securities regulation in Europe, said:
“… corporations do not act criminally, but for the actions of individuals… the Criminal Division intends to prosecute those individuals, whether they are sitting on a sales desk or in a corporate suite.”
The new sentencing guidelines for health and safety offences will result in more individuals being sent to prison if convicted. Since the consultation paper for these guidelines was published in 2014, a health and safety consultant convicted of breaching s7 of the Health and Safety at Work etc. Act 1974 (HSWA) has been sentence to nine months’ imprisonment and a director to eight months’ imprisonment for breaching s37 HSWA.
S7 HSWA covers all employees, from senior managers to frontline workers. It requires employees “to take reasonable care” for their own health and safety and others who may be affected by the way they perform their work.
Key to the prosecution can be the scope of the accused’s duty of care. In establishing a duty of care in negligence cases the House of Lords in Caparo Industries v Dickman  2 AC605 stated there must be foreseeability (of risk), proximity and it must be fair, just and reasonable to impose a duty.
Directors and senior managers can be prosecuted under s37 HSWA for their organisation’s health and safety breaches. For a manager to be caught by s37 HSWA he must have “real authority” and have “responsibility to decide corporate policy” (R v Boal  3 All ER 177).
The Health and Safety Executive (“HSE”) must prove the organisation was guilty of a health and safety offence and that its wrongdoing was due to the individual’s consent or connivance (i.e. turning a blind eye) or was attributable to their neglect. Most prosecutions are for neglect and for this the scope of the defendant’s duty of care will be a crucial element.
Sometimes senior individuals can find themselves in the firing line of an investigation because they were in charge when things went wrong and the investigator does not fully understand the nature of their role.
In the report ‘Innocent but broke – rough justice?’, the legal charity Transform Justice points out that acquitted defendants not entitled to legal aid will only be able to recover a proportion of their legal costs in limited circumstances.
Conservative MP Nigel Evans was cleared in 2014 of rape. He was left with a legal bill of £130,000 plus VAT. At the time he said: “If someone is dragged through the courts through no fault of their own and is acquitted, they should get their legal fees back from the [prosecutor’s] budget”.
Given the changing climate it is important, particularly for managers and safety professionals working in high-risk industries, to consider how they would obtain access to independent specialist legal advice and fund their defence if prosecuted.
There might be cover available under their employer’s insurance. If not then they should think about taking out their own insurance policy.
Often insurers will insist on representation by one of their own panel lawyers. However, regulation 6(1) of the Insurance Companies (Legal Expenses Insurance) Regulations 1990 provides that, irrespective of the policy wording, there is a right of choice of solicitor.