From ‘dirty crime’ to health and safety law – how did I get here?

Following her start in “dirty crime” in East London, Kizzy Augustin, senior associate at Pinsent Masons and one of SHP’s editorial advisors, explains how she got into health and safety law.

How did you get started in health and safety law?

I had a bit of a chequered past (in the best possible sense!). I started off life as a “dirty crime” defence lawyer for a large criminal defence law firm in East London/Essex and after 6 ½ years of being a duty solicitor and police station-accredited representative and court advocate defending clients for offences like murder, burglary and robbery, I decided that I needed more of a challenge.

I had the opportunity to represent one of the engineers involved in the Hatfield rail crash, who was being prosecuted for manslaughter and this case involved a number of health and safety issues. I loved the idea of using my criminal litigation experience to prepare a defence to health and safety breaches – which was also criminal in nature.

After being enthralled by the world of health and safety through the Hatfield trial, I decided to prosecute health and safety breaches on behalf of the Local Authority, but quickly realised that ‘prosecution’ was not for me! I eventually found a vacancy at Pinsent Masons for a Criminal Regulatory Lawyer, where I focused on health and safety criminal defence and after being here for the last eight years, the rest, as they say, is history!

What are the similarities and differences between your current health and safety legal role and the criminal one you did previously?

In terms of general criminal litigation rules, nothing much is different at all! I have been able to use the skills I acquired as a criminal advocate to prepare defences for corporate and individual clients facing health and safety prosecutions in the Magistrates’ and Crown Courts.

The procedures involved for preparing a defence and analysing the strength of the prosecution’s evidence in health and safety and pure criminal cases are very similar. What is different is my clientele – as a criminal duty solicitor, I often represented individual defendants who were unable to afford legal representation and were reliant on the Legal Aid system, where a solicitor would be appointed for them.

Now, I act for large corporations and senior managers and directors, who face prosecution for serious health and safety breaches and/or corporate manslaughter or even gross negligence manslaughter – and these clients can often either afford their own legal representation or are funded by insurers. The biggest difference for me though is the fact that I no longer have to attend police stations in the middle of the night when a client has been arrested for a “dirty crime” offence – there is often much more flexibility with health and safety, where I can convince the police not to arrest corporate clients/individuals and arrange interviews at our convenience!

What have been the biggest changes in the health and safety profession (from a legal perspective) since you started practising?

The use of the Health and Safety at Work etc Act has been a comforting constant for me – I think this is a solid bit of legislation that is open to interpretation and allows the right amount of flexibility for clients and lawyers alike. The biggest changes to the profession for me have included the increased need for accreditation to confirm competency. Also, heavier reliance on Approved Codes of Practice and Guidance documents, which carry similar weight to statutory documents/legislation.

From a non-legal perspective, one of the most welcome changes in the health and safety profession has been the increased amount of women that are specialising in health and safety, both from a technical/practical background and also in the legal profession. It makes me proud to be a part of that sorority!

What are the upcoming challenges for health and safety professionals?

Protecting themselves from individual prosecutions in the event of an incident, and therefore seeking to avoid imprisonment if it all goes wrong. And, of course, the effect of the recent 2016 sentencing guidelines for health and safety (effective from Feb 2016) on individuals, with suggested sentences including increased levels of fines and immediate custodial sentences.

The health and safety industry was rocked by the 2014 case of a health and safety adviser receiving an immediate custodial sentence for a breach of section 7 of the Health and Safety at Work etc Act 1974, and the trend of prosecuting individuals for health and safety breaches is on the rise.

Outside of the legislative changes for the corresponding health and safety regulations (such as CDM 2015), I think there will much more scrutiny on the preparation of risk assessments and documents prepared to control the level of risk relating to the activity concerned.

The HSE are taking a much firmer view on professionals that prepare lengthy policy documents that are unlikely to be read and understood by others, and instead prefer more simplistic documents that clearly identify what the relevant risks are and how to control those risks.