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October 12, 2011

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Prosecutions – Together or apart?

Being faced with a prosecution following a workplace accident is always a daunting prospect, but cases can seem that much worse when there is more than one defendant involved. Alison Gray and Anna Hart explore the trend and suggest what tactics can be employed to manage the challenges thrown up by such cases.

There is an increasing inclination for enforcement authorities, including the HSE and Police, to bring cases involving several defendants. It is a pattern that presents particular challenges for defendants, not least because such cases force them to consider the position of any co-defendants, as well as that of the enforcer.

The rise in the number of multiple-defendant cases is symptomatic of the HSE’s increased interest in discovering the root causes of safety breaches – be these failings on behalf of individual directors to properly manage their business, or failure by companies to properly plan and supervise work carried out by their contractors.

However, it is not just about getting to the bottom of why incidents have occurred. Regulators have become move savvy about tactics used by defendants to try and escape liability in court. By including multiple defendants in a prosecution, it becomes a lot more difficult for defendants to blame a third party, especially if that third party is also a defendant in the proceedings.

Whatever the reasons behind this trend, there is a strong message that health and safety duties must be taken seriously. The consequences of failing to do so can be extremely serious, even for organisations and individuals who may not consider themselves a likely target of regulatory attention.

Defendant relationships
There are many ways that companies can manage the challenges presented by multiple-defendant cases.  Prior to any prosecution being announced it is likely that there will have been a detailed investigation and that suspects will have been invited to put their side of the story at an interview under caution. This should mean that by the time a prosecution is instigated, the defendants have a fair idea of the facts of the case and the parties involved.

By this stage the general attitude and approach of any co-defendants should be clear by the way they have behaved during the investigation. For instance, have they taken the matter seriously, or simply stuck their head in the sand?
While there is no rule that co-defendants can’t communicate with each other during investigations and prosecutions (in fact, it might be necessary, or beneficial in many situations), discussions must be approached with caution. It is critical that there is no suggestion of collusion, or of one party trying to influence the evidence of another. However, there is quite a difference between influencing evidence and discussing the merits of a case and what tactics will be used to navigate the prosecution proceedings.

Sticking together?
One key decision to make at a very early stage in prosecution proceedings is whether or not the co-defendants will cooperate with each other. Will they present cases that are consistent with one another, or will they opt to try to off-load blame on to each other, to convince the court that the incident was solely the responsibility of the other defendant? This type of “cut-throat defence” is often a gift to the prosecution, which can sit back and watch the fight, while adopting the various allegations made by each defendant against the other.

The arguments in favour of cooperation are strong. Unless there is a genuine reason to explain why fault lies with another party, attempts to shift blame on to others can be perceived very badly by the court. It can suggest that the defendant does not fully understand the causes of the incident and that there is risk of a similar breach occurring in the future, or that they refuse to accept responsibility for their previous failings. Either way, it is not good news for the defendant and could aggravate the offence and be taken into account when deciding sentence, if the defendant is found guilty.

If a defendant looks to blame another party it is likely that they will receive the same treatment in return and will find that allegations are made about their conduct in relation to the incident. This could result in both defendants being seen in very poor light by the court. Both could be found guilty and end up receiving harsher penalties because of such mud-slinging.

Cooperating with co-defendants is not just about damage limitation. Both parties can benefit from sharing their knowledge and resources. For instance, the parties may be considering expert evidence before deciding on what plea to enter and it may be possible to agree to instruct a joint expert, or agree to provide details of the expert’s conclusions for co-defendants at an early stage. As is always the case with regulatory prosecutions, the more information the defendant has available, the better equipped they will be to deal with any accusations put to them.

But despite the possible benefits, it would be naïve to suggest that this is always the most appropriate way to tackle a prosecution. Perhaps the most difficult element in handling cases of this nature is to decide when to break free at the cost of others involved. Inevitably, once any element of a cut-throat defence is raised, it would be very difficult – if not impossible – to return to a position of cooperation.

Undoubtedly, there will be times when the only appropriate defence is to blame others. It could be that the prosecutor has fundamentally misunderstood the arrangements in place. Worse still, a co-defendant may have deliberately misled the regulator in an effort to avoid prosecution. If a defendant finds themselves in this position, the ‘health warning’ before raising any allegations against others is to be absolutely certain that the version of events is factually accurate and can be supported with evidence.

The worst-case scenario for any defendant is to blame another party for the failings, only for their version of events to be undermined and their defence to unravel, resulting in the loss of any goodwill with other defendants and, ultimately, the court.

When the co-defendant is a director
What if the co-defendants are a company and one of its directors? In this case, the company would need to consider if it wishes to support the director and provide any financial assistance to cover the costs of defending any prosecution. The other directors of the business must agree that it is in the best interests of the company to spend money in this way, and our experience shows that, more often than not, there is great value to the business in supporting the director.

The facts of a case will determine how closely the company and the director can align themselves, when it comes to the defence presented to the court. The possibility of an actual or potential conflict of interest arising between the company and the director should always be considered. For instance, the director may wish to put forward a defence suggesting he did not receive adequate training on health and safety matters, or he was acting on a decision made collectively by the entire board. In this situation, it would be very difficult for the company to support this defence unless it is prepared to accept responsibility for the breach.

In the case of a director, the company may also feel that it has a moral obligation to support the individual, assuming there is no suggestion that the person has been dishonest, or has deliberately acted against the interests of the company. This is especially relevant where there is a risk the director could face imprisonment. The company should ask itself: is the reputation and financial success of the company important enough to risk such catastrophic consequences for the director?

A difficult scenario that can frequently arise in cases where there is a company and a director defendant is that the business accepts it is guilty of the offence charged, but both the company and the director agree the individual is not guilty of the associated section 37 charge. The best possible outcome in this situation is that the company enters an early guilty plea and also negotiates with the regulator that once it has done so, the regulator will decide there is insufficient evidence, or no public interest to justify pursuing the prosecution against the individual.

If, however, the regulator rejects an evidential or public-interest argument, and insists on running the case against the individual, the company is faced with a very difficult question: does it plead guilty or not guilty?

The plea
If a defendant accepts that it is guilty of the offence, a guilty plea can be entered at an early stage to ensure that maximum credit is given to help mitigate the sentence that will eventually be imposed. However, if a defendant enters a guilty plea and their co-defendant enters a not-guilty plea, where does this leave them?

The first defendant will still be awarded maximum credit for their early plea, but the case will not move directly to a sentencing hearing. There will need to be a trial to determine the guilt, or otherwise, of the second defendant. This will raise alarm bells with the first defendant because they will have no involvement in this trial, and consequently, no opportunity to comment on any submissions made on behalf of the second defendant. This makes it very easy for the second defendant to pile as much blame as possible on the first defendant, knowing that they have already pleaded guilty and will be punished in any event.

As a result, the first defendant can effectively become the scapegoat for the second, and they may suffer greater reputational damage, media attention, or a higher sentence. So, in cases that are not entirely clear-cut, it is much more difficult for defendants to decide what plea to enter and, tactically, when to indicate to both the co-defendants and the court what that plea will be.

Ongoing relationships
It is inevitable that working relationships will be affected by a regulatory investigation, or prosecution – both while the proceedings are ongoing and into the future. In many cases it would be neither possible nor appropriate for any form of working relationship to continue after the court case has finished.

However, this is not always the case. In some situations, the practical and commercial implications of terminating the relationship make it important to restore a good relationship for the future, especially, for example, in relation to long-term public-private partnership projects. What is important here is transparency. The parties need to be open with each other and with the regulator – both during the proceedings and about steps that will be taken to ensure safety incidents cannot occur in future.

If the ongoing relationship is a major issue it is likely that the defendants will agree to cooperate, or, at the very least, communicate with each other during any proceedings. It is very difficult to see how future relationships can be salvaged if one party feels that it has been unfairly used, whether successfully or not, as a scapegoat by the other. This is something all defendants must bear in mind when deciding how they will respond to criminal proceedings involving more than one defendant.

There is no doubt that the question of whether or not to present a united front can be a difficult one. However, the key to handling the increased number of prosecutions involving multiple defendants is to know what options are available, which are the best to employ, and at what stage in proceedings.

Alison Gray is partner and Anna Hart a solicitor in the environment and safety team at law firm Dickinson Dees.

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