For business, big or small, regulation is a fact of commercial life.
Breach of regulatory act or regulations can carry many penalties, not only financial but also the risk of imprisonment for individuals.
Invariably the Courts look at imposing significant fines on businesses both in the belief that the punishment must be effective and that it is in the public interest for the courts to be seen to be imposing significant penalties. Prosecutions may be brought by regulatory bodies such as the Environment Agency, Health & Safety Executive, Training Standards Departments of Local Authorities, Food Standards Agency, Statutory Authorities, RSPCA etc.
Regulatory body prosecutions are different from ordinary criminal prosecutions in that often there is no need for the prosecuting authority to prove intent to commit the offence on the part of the defendant. They are strict liability offences. The only defences tend to be those of taking all reasonably practicable steps through due diligence. This effectively removes from the defendant the benefit of the presumption of innocence and the defendant is placed in a position of having to prove that they took all reasonably practicable steps to avoid committing an offence.
In turn this changes the whole mind-set of the presentation of the defences to these types of offences.
It is crucial for a business faced with allegations of a breach of a duty owed under a Regulatory Act e.g. Health & Safety Act 1974 or the Environmental Protection Act 1990, to adopt a proactive approach to any regulatory investigation.
The potential penalties for breach of these types of offence are high. For example, the maximum fine for conviction in the Magistrates Court is often extended from £5,000 to £20,000 and even £50,000 for some offences under the Environmental Protection Act. The powers of the Court also extend to imposing custodial sentences instead of/or as well as a fine. In the Crown Court the fines are unlimited and often the custodial sentences can be up to 2 years as opposed to 6 months or 1 year in the Magistrates Court.
Even though a business may be a limited company, in many cases there are provisions for the prosecution of directors, managers, secretary or other officers of the company if the offence has been committed with their consent, connivance or due to their neglect. Directors, managers and officers of the company could easily find themselves facing a custodial sentence for the company’s breach.
The penalties which can be imposed can be fatal to a small or mediums sized business.
At Napthens our specialist litigation team has been dealing with these types of issues for our clients for decades. We have experience and expertise in how to deal with these problems and have represented our clients on cases including:
- Health and safety investigations and prosecutions
- Water pollution
- Deposit and treatment of waste
- Property mis-description
- Food safety
- Breach of Fire Authority Regulations
- Breach of Consumer Protection Regulations