Fine of £1 million for a rail company after the death of a passenger on the Gatwick Express. The press release from the Office of Rail and Road (ORR) reports on the fine imposed by Southwark Crown Court for breach of an offence under the Health & Safety at Work etc. Act 1974. Its investigation showed that there had been a similar incident in 2002, which resulted in enforcement action against the train operator in that case, and that the risks should have been identified by a suitable risk assessment.
Government response to the final report of the Modern Slavery Act review is published. The Home Office has accepted most of the recommendations and the government will launch a central registry for modern slavery statements and is investing in a Policy and Evidence Centre for Modern Slavery and Human Rights. Companies will not be able to state they have taken no steps to address modern slavery in their supply chains (which the legislation currently permits), and the six areas of reporting currently recommended in guidance will be made mandatory. In addition, the government will bring forward proposals for an enforcement body to enforce sanctions against noncompliant companies. In our March edition of frESH Law Horizons, we reported that the government was conducting an audit of compliance with the relevant provisions of the Modern Slavery regime, in particular whether statements meet minimum legal requirements, and whether they meet key standards in the Home Office Statutory Guidance on transparency in supply chains. Non-compliant organisations may be named. It seems that, in the future, the act will bear more teeth. Therefore, businesses may wish to review their compliance with the current guidance, as well as the legislation.
Health board and maintenance company is fined after the fall of a window cleaner. The Health and Safety Executive (HSE) has reported on the £400,000 fine for the NHS Trust and a sixmonth suspended sentence for the director of the maintenance firm. The prosecution is a reminder of the requirement for organisations to check the competency of their contractors and ensure a suitable risk assessment/safe system of work is in place, particularly for contracts that involve work at height, where the risk of death means that the “harm” category under the sentencing guidelines will be “Level A”.
HSE releases annual workplace fatality figures. We have published an article with more details. The recent increases in fines for health and safety offences seem to be having little impact on the number of workplace fatalities, which have remained relatively constant (and comparatively low) over recent years.
Amendments to UK regulations for enforcement on “smart tachographs”. The Department of Transport has proposed amendments to the Transport Act 1968 in the Passenger and Goods Vehicles (Tachographs) (Amendment etc.) Regulations 2019. The amendments are to allow effective enforcement if requirements in relation to smart tachographs are breached. All new trucks are now required to be fitted with smart tachographs, which introduce a Global Positioning System (GPS) for positioning and tracking a vehicle, the ability to link the units to vehicle telematics systems and the ability for remote enforcement. For remote enforcement, vehicles can be fitted with a Remote Early Detection Communication Reader, which will be able to read data remotely from a passing digital tachograph, without a vehicle stop, for some offences, although the data received cannot lead to automatic penalties or fines (and, in practice, is likely to lead to a vehicle stop if issues are detected, with a full examination of the tachograph and drivers’ card). There is currently no requirement to fit smart tachographs to older vehicles. Such vehicles may, of course, still be subject to roadside inspections, including in relation to tachograph date. When the new regulation comes into effect for vehicles registered after 15 June 2019, there will be no immediate requirement for the equipment to be retrofitted to older trucks, buses and coaches.
Work at height fine of £500,000 following a fall from a viaduct. Another significant fine has been imposed for failures in relation to work at height. This case also involved the ORR, which has reported on the case, heard at Westminster Magistrates’ Court.
Court of Appeal confirms a plea discount of 25% for a guilty plea on first appearance at Crown Court. In R v Ball [2019] EWCA Crim 1260, the court stated that provided the indication of plea was clear and unequivocal, the sentencing judge should afford the defendant this discount (in this case, the Crown Court gave a 20% discount, which is not in accordance with the sentencing guideline). The Sentencing Council published the definitive guideline on the reduction in sentence for a guilty plea on 1 June 2017. The applicable discount for a guilty plea at the first stage of proceedings (in the magistrates’ court) is one-third. However, whether a guilty plea is appropriate should always be considered by the defendant in relation to any regulatory prosecution, after a careful analysis of whether the facts of the offence are made out and whether a defence, such as due diligence, would be available.
Court of Appeal decision on sentencing remarks. In R v Chin-Charles (3 July 2019), the court issued a reminder that, in relation to sentencing, its task is to determine whether the sentence was wrong in principle or manifestly excessive. It does not have an administrative function, and, where a guideline applies, the court hearing the case should announce findings of fact without supporting narrative. Appeals in relation to sentencing in environment, health and safety, and food safety offences are, in our experience, more common over recent years, since the relevant sentencing guidelines were introduced, and fine levels have increased significantly. Persuading a court that an offence was categorised in the wrong bracket can, effectively, halve the fine. The increasing length and complexity of sentencing remarks, with extensive citations of authority, detailed discussions of relevant guidelines and recitation of the arguments, are almost certainly a by-product of that.
Code for private prosecutors is published. In our January edition of frESH Law Horizons, we reported on the consultation launched by the Private Prosecutors’ Association (PPA). The code is voluntary and is by way of guidance. It covers various matters relating to investigation, disclosure, charging and proceedings, as well as abuse of process, trial, sentencing and costs. Private prosecutions can be used by businesses, as well as individuals, who have been the victims of alleged criminal acts committed against them and may be considered where enforcement agencies have not investigated/ prosecuted. There are examples of private prosecutions being used for breach of environmental legislation, in particular where noise or other nuisance has been caused to victims.
Environment Agency (EA) is to use drones to tackle illegal water abstraction. The EA has announced that due to the heatwave in 2018 and subsequent mild winter, rainfall levels have not been as high as would ordinarily be expected and there is increased pressure on the water environment. Water abstraction is regulated through licences; however, there is always the risk that licence holders will breach their conditions in order to protect their own cause, notably irrigation of crops. Therefore, the EA has engaged with a drone operator to monitor water areas from above and carry out enforcement efforts where necessary. In our April edition of FrESH Law Horizons, we reported that drones are now used by some local authorities for surveillance as well. Government guidance is available on using directed surveillance.
Sentencing Council publishes new general guidelines and expanded explanations. These update and replace the 2004 Seriousness Guideline. Set to come into force on 1 October 2019, the new guidelines are paperless and intend to provide a clear structure when sentencing offences that do not yet have specific guidelines, but also aim to leave wide discretion to judges and magistrates (with reference to all relevant factors of the case) in arriving at a final sentence. There are also expanded explanations that are supplemental to the new general guidelines, which are to ensure a consistent approach when applying the guidelines. It is not thought, though, that the new general guidelines will have a notable impact on business crime cases where the majority of offences are covered by specific guidelines themselves, such as health and safety, and food offences.
Department for Environment, Food & Rural Affairs (Defra) has published guidance for local authorities on climate change resilience and “revolutionising” the management of climate change risk. The guidance outlines a range of adaptation measures that can be implemented by local authorities into their corporate plans, policies and performance monitoring systems. Given that many local authorities have declared climate emergencies in recent months, this guidance should assist local authorities to take account of climate change issues in all of their decision-making.
The International Standards Agency (ISO) has published the first international standard for climate change adaptation. ISO 14090 (Adaptation to climate change – Principles, requirements and guidelines) aims to help organisations assess climate change impacts and put plans in place for effective adaptation. It helps them identify and manage risks, as well as seize any opportunities that climate change may bring.
The Environmental Audit Committee (EAC) has launched an inquiry on electronic waste and the circular economy. The huge growth in the use of electronic devices has led to a rapid increase in electronic waste. The overview of the inquiry notes that, globally, 44.7 million tonnes of e-waste were produced in 2017, 90% of which was sent to landfill, incinerated, illegally traded or treated in a sub-standard way. The inquiry will focus on two key areas: how to implement a circular economy for electronics, and the state of the UK electronic waste sector, including waste exports and the functioning of the WEEE system. The deadline for written submissions is 5 August.
The Treasury has published its Green Finance Strategy. This describes how the UK intends to lead on green finance and ensure the financial system can respond to climate change. The part that has attracted the most attention is the announcement that listed companies and large asset owners will be expected to report on climate change risks by 2022 (using the Task Force on Climate-related Financial Disclosures (TFCD) requirements). This will be a significant new requirement for many large organisations.
Severn Trent has fined a company for illegal hydrant use and wasting water. In the first prosecution of this kind for Severn Trent, Birmingham Drain Services Ltd was ordered to pay just under £10,000, consisting of a £6,300 fine, £3,465.90 costs and a £170 victim surcharge for three offences of illegal hydrant use and wasting water across Warwickshire last year. Severn Trent’s spokesman said: “This company acted recklessly, and could have caused real problems when accessing our network when they shouldn’t have. Not only could they have caused our customers water to be off or murky, but they could have easily caused issues for the fire service in the event of an emergency.”
The European Court of Justice (ECJ) has ruled on the definition of waste electronic equipment. In the Tronex BV case, the European court had to decide whether containers of used electric products shipped to Africa as products, rather than as waste, should have been classed as waste and, therefore, subject to the rules on transfrontier shipment of waste. The court ruled that defective products would be waste unless the holder can “demonstrate not only that they can be reused, but that their reuse is certain”, which would require them to have all been inspected/tested before being shipped. The way the shipment was packed was also relevant – some products were boxed, but others were loose. The court’s view was that failing to protect items properly in transit leads to the presumption that they have been discarded and are, therefore, waste. Conversely, the court also clarified that items considered redundant but not defective, and still in their original unopened packaging, should not be regarded as waste. This is some helpful clarification in what is a very grey area of law.
New EU requirements to notify hazardous mixtures are likely to be postponed by a year. Annex VIII of the CLP Regulation was to phase in new requirements from 1 January 2020, but this now looks set to be postponed to January 2021. The latest committee meeting discussed a draft delegated act, which will then be subject to public consultation and is expected to be adopted by the end of September. The EU chemical industries association, Cefic, welcomed the postponement and noted that it is necessary to resolve a number of workability issues.
The Committee on Climate Change (CCC) released its 2019 Progress Report to Parliament. It finds that UK action to curb greenhouse gas emissions is lagging behind what is needed to meet legally binding emissions targets, and notes that since June 2018, government has delivered only one of 25 critical policies needed to get emissions reductions back on track. At the launch meeting, the Chair of the CCC, Lord Deben, likened the government to “Dad’s Army” in its approach to climate change management. The recommendations include that net-zero policy is embedded across all levels and departments of government, and that policies to reduce UK emissions to net zero are business-friendly. The report says that there is an urgent need for “a mechanism to incentivise widespread uptake of near-zero emissions technologies in industry, including the use of hydrogen, electrification, CCS and BECCS, as well as support for energy and resource efficiency. The design of this mechanism must ensure it does not drive industry overseas, which would not help to reduce global emissions, and be damaging to the UK economy.”
New directive on the promotion of clean and energy-efficient road transport vehicles is published. Directive (EU) 2019/1161 amends Directive 2009/33/EC on the promotion of clean and energyefficient road transport vehicles, as part of the EU’s Clean Mobility Package that aims to accelerate the transition towards low and zero emission vehicles. The new directive seeks to cut vehicle emissions by at least 40% below 1990 levels by 2030, and sets targets for public authorities to source a percentage of either low emission or zero emission vehicles in their own public procurement by 2030. Member states must implement this directive by 2 August 2021, so the UK will not be bound to introduce these measures post-Brexit. The UK’s own policy on zero emission vehicles, the Road to Zero strategy, with its ambition for all new cars and vans to be effectively zero emission by 2040, was bolstered by a number of consultations on policies designed to help achieve this target, as well as meet the target of net-zero greenhouse gas emissions by 2050. This includes a proposal for all new homes to be fitted with an electric car charging point. Meanwhile, the Department for Transport issued a call for evidence, open until 26 September 2019, on options to improve consumer understanding of greenhouse gas emissions from their journeys, the role of carbon offsetting, and whether travel providers should be required to offer voluntary carbon offsets.
