Corporate defence & criminal law FAQs
Q1: I have to attend an interview under caution as part of an ongoing regulatory investigation. How can you help me?
A: In these circumstances we would strongly recommend that you take legal advice before you attend the interview. It is important to remember that taking legal advice does not make you look guilty: it is your right. At Libra Solicitors we take protecting our client’s rights seriously.
What you say in an interview under caution could have serious implications for you and/or your business and charges could be brought solely on what you say, even if there is no other evidence.
Should you instruct us, we will provide expert support and guidance throughout the interview process and we will be focused on ensuring that the interview is carried out in accordance with all the rights and protections afforded to you under the rules and codes governing PACE interviews.
If an investigation has just started or you believe that an investigation is about to start, it may be prudent to seek legal advice early as soon as possible, even if you have not yet been asked to attend an interview under caution. In such an instance, we will give you clear, practical advice as to whether there are any proactive steps you can take, such initiating dialogue with the investigating authority. Where instructed, we can making representations to them on your behalf.
If you have been asked to attend an interview by a regulatory body, local authority, or the police and would like to know more about interviews under caution, please click the link. Alternatively for a confidential discussion about the issues that may be concerning you, can call us on 01223 632420 and arrange an appointment.
Q2: As an owner of a company, how do I ensure that the health and safety policies of my business are kept up to date?
As the owner of the business it is important that you have systems in place to protect your employees, the public, and yourself from workplace dangers. The steps you take should be proportionate to the nature of your business activity and the size of your business. For instance, if you have fewer than five employees currently there is no obligation to have your risk assessment and health and safety policy in writing, though it might be prudent to do so.
Generally speaking, you are obliged to identify foreseeable risks and take action to avoid them happening. To do this you need to carry out a risk assessment, so you will need to systematically examine your workplace and the operations carried out there to identify what might cause harm to a person.
The type of things to consider might include the equipment you work with, the processes involved in your business operations, and the possibility of long-term harm that might be caused to people by factors such as very loud machinery. The Health and Safety Executive also publish guidance notes online to assist you in identifying risks. It also makes sense to check any records of accidents or illnesses to identify the causes so that you can take action to prevent future harm to people.
You should then take reasonable steps to prevent workplace dangers from causing harm, including training your employees, establishing safe procedures and providing them with the correct facilities. For businesses involved in activities that carry a higher risk, such as using machinery or working with chemicals, it is very important to check the manufacturer’s instructions to ensure that the appropriate safeguards are in place and regular maintenance is carried out. Operating some types of machinery may also require your staff to attend specific courses and obtain proper licensing beforehand.
You should regularly carry out risk assessment reviews so you remain in control of the health and safety risks in your workplace. For instance, whenever your business buys new equipment or starts to carry out new activities you should assess any new risks that are created and ensure your business is taking reasonable steps to ensure no harm occurs. Similarly, if you have new members of staff you will need to provide them with training and all the relevant information so they understand and can apply your health and safety policies.
You can keep up to date with health and safety matters by visiting the Health and Safety Executive website: www.hse.gov.uk. For advice and assistance in implementing an effective compliance regime, our expertise could help you. Call us on 01223 632420. If however, you or your business are facing an investigation for a health and safety breach, we can provide you with expert advice and representation throughout the process so you know your rights are being protected.
Q3: What is a Deferred Prosecution Agreement?
A: When an organisation or company is charged with a criminal offence, the prosecutor can agree with the organisation to suspend the proceedings under the supervision of the court. This is known as a Deferred Prosecution Agreement (DPA) and complete co-operation is required form the organisation/company that had been charged. In addition, it should be remembered that Deferred Prosecution Agreements may only be entered into by organisations / companies and not individuals.
The suspension is for a set period while the organisation meets certain conditions that are set by the prosecuting body. The conditions of the DPA must be “fair, reasonable and proportionate.”, however, if the organisation fails to meet imposed conditions, the prosecution could resume as before.
These conditions may include paying compensation to victims of the organisation’s conduct, paying any financial penalties imposed, taking measures to ensure future compliance and cooperating with the prosecution of individuals responsible for the criminal behaviour.
All aspects of a DPA require court approval who must be convinced that the DPA is “in the interests of justice.” Once the DPA is finalised it will be made public.
For an organisation/company facing a criminal prosecution, there are, in our opinion, numerous benefits of entering into a DPA. They include:
- Avoiding the negative consequences of an investigation and prosecution including the time, expense and negative publicity that may well be involved.
- Avoiding the long-term consequences of the organisation being found guilty of a criminal offence.
- The transparent nature of DPAs allows the public to see how the corporate body is making full reparations for any wrongdoing it is responsible for, presenting a contrite and proactive image that may limit reputational harm.
- As long as all the conditions are met, a DPA can allow an organisation greater certainty for the future than if it was facing the potential consequences of a criminal prosecution.
For any company or organisation facing a criminal prosecution, a Deferred Prosecution Agreement may be an attractive option that limits the fallout of an already difficult situation. For more information on how we can help your organisation, call us now on 01223 632420.
Q4: I am a director of a company that is facing a regulatory prosecution. Could I face any personal consequences?
A: As a director of a company your position carries significant responsibilities. The personal consequences you may face will depend on a number of factors that include amongst other things:
- the regulation(s) that have been infringed
- the severity of the breach
- your personal level of involvement.
It is entirely possible that you may be prosecuted individually because as a director, you are individually and collectively accountable, along with other company officers, for ensuring that the company meets its statutory responsibilities whilst achieving the company’s objectives.
You may also need to consider whether you are in breach of your statutory duties such as those set out in the Companies Act 2006. Under this Act, depending on the breach of duty alleged, the potential consequences include facing a criminal prosecution by the regulatory authority. Should you be found guilty you could receive a criminal conviction, with the possibility of a custodial sentence for some offences.
Any income derived from criminal activity could be confiscated and in some circumstances, the shareholders of the company of which you are a director, could initiate a civil action against you which could have serious financial consequences.
For a confidential discussion about the issues that may be concerning you, call us on 01223 632420 and arrange an appointment.