What happens if the police stop me in the street?

If a police officer stops you in the street, they must tell you their name, the station where they are based and why they have stopped you. They might just have stopped because you look like someone they are looking for, such as a young person who is missing from home. However, they might have stopped you because they suspect that you have done something illegal or that you might be about to break the law. You must give your name and address, but you don’t have to answer any legal questions until you have had legal advice. If they suspect you are carrying an offensive weapon, drugs or anything else with which you could commit a crime, the officer can search your outer clothing, even in a public place. Always try to stay calm because if you get abusive or angry it will only increase your chances of getting arrested. You have the right to be treated fairly and with respect by the police

Police Powers: Entering and Searching Premises

What is Entry and Search

There may be circumstances when the police have the power to enter premises and search them with a view to either arresting someone, seizing items in connection with a crime or, both. The most important provisions governing this area of the law are to be found in the Police and Criminal Evidence Act 1984.

Warrants

There will be situations when the police may enter premises to search them without being in possession of what is known as a warrant, which is a written document issued by the court authorising the arrest of a person or the search of his home or any other premises in connection with the suspect, in other situations it will be necessary for the police to make an application to the court for a warrant to be issued before they can enter the premises.

When a warrant is not necessary

It is not necessary for the police to be in possession of a warrant in order to enter and search premises in the following circumstances:

• To arrest a person for whom a warrant of arrest has been issued during criminal proceedings;
• To arrest a person for an indictable offence, meaning any offences that can be tried by a jury in the Crown Court; these tend to be the more serious offences;
• To arrest a person for an offence under the Public Order Act 1936 section 1 which states that it is prohibited to wear a uniform in a public place or at a public meeting signifying an association with a political organisation, without permission to do so;
• To arrest a person for an offence under the Public Order Act 1986 section 4 which prohibits anyone placing another in fear of violence;
• To arrest a person for using or threatening violence for the purposes of entering premises (Criminal Law Act 1977 section 6);
• To arrest a person who is a trespasser on the premises and who has failed to leave those premises after being asked to do so (Criminal Law Act 1977 section 7;
• To arrest a trespasser who has with him any weapon (Criminal Law Act 1977 section 8)
• To arrest a person who interferes with an Officer of the Court when they are trying to enforce a judgment (Criminal Law Act 1977 section 10)
• To arrest a person for driving or being in charge of a vehicle when under the influence of drink or drugs;
• To arrest someone for failing to stop a vehicle when required;
• To arrest a person for acts of animal cruelty under the Animal Welfare Act 2006;
• To arrest a child or young person who has been remanded or committed to local authority accommodation;
• Recapturing a person, including a young offender, who has escaped from custody;
• Recapturing a person unlawfully running who is being pursued;
• In an attempt to save a life or prevent injury to someone or serious damage to property.

Other than to save a life, or prevent injury or serious damage to property, the police can only exercise the above powers if they have reasonable grounds to believe that the person they are searching for is on the premises. In connection to searching for items, the police can enter premises in search of items only if the suspect has been arrested for an indictable offence and there are items relating to the offence that will be useful as evidence. In this case an officer of the rank of inspector or above must give their authorisation in writing.

When a Warrant is needed

An application will be made to the Court by a Constable when there is a need for a warrant. There are two types of warrant that may be issued for the search of premises; these are a Specific Premises Warrant or an All Premises Warrant.

Specific Premises Warrant

The Constable can only enter and search the premises specified in the application. This warrant will only be issued if the Court is satisfied that all the following criteria are fulfilled:

• An indictable offence (one of the more serious offences) has been committed; and
• There are items on the premises that will be of significant value when investigating the offence; and
• These items will be useful as evidence during a trial; and
• That the items are not protected by legal privilege; and;
• That a Constable will be prevented from entering the premises, either because there will be nobody available to grant them entry or they will not allow them entry and the search may be seriously affected if the Constable does not gain immediate access, if they do not possess a warrant.

All Premises Warrant

The Constable can only enter and search premises that the person specified in the application lives in or controls. This warrant will only be issued if all the above criteria are satisfied in addition to which the Court must be satisfied that:

• It is not reasonable to name all the premises that may need to be searched in the warrant; and
• It is necessary, because of the details and nature of the offence, to search any premises owned or controlled by the person in question which are not included in the application.

Protected Materials

There are certain materials that are offered some protection from police search and seizure:

• Legally Privileged Material: Any material relating to legal advice or to legal proceedings and any items related to either of these;
• Excluded Material: Special warrants must be obtained by the Constable in order to seize this material. This category includes business trade records which are held in confidence, medical samples taken to diagnose illnesses and any journalistic material;

Special Procedure Material: Any material that doesn’t fall under the first two categories but which the person holding it has stated they will keep confident or have been entrusted to do so. Again, in this situation the Constable will require a special warrant.

If I was arrested how long could I be held in a police cell?

You can be kept in a cell at a police station for up to 24 hours. While you are there you will be interviewed, but if the police are not finished with the investigation, they can then apply to the senior police officer in the area to have the time extended to 36 hours. This might be because they need extra time to interview other people such as witnesses or victims. After that, the police have to get permission from a magistrate to keep you in the cell for another 12 hours. These rules are different for anyone suspected of a terrorist offence.

Whenever possible always ensure you have robust and effective legal representation in the police station.

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If you’ve been arrested and require representation, or have serious crime related questions, please get in touch.

The Health and Safety Executive (HSE) is a non-departmental public body of the United Kingdom with its headquarters in Liverpool, England. It is the body responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare, in England and Wales and Scotland.

HSE’s view of enforcement is set out on their website:

“HSE’s emphasis is on prevention but, where appropriate, we will come down hard on those that put others at risk, particularly where we find deliberate flouting of the law”.

Prosecutions

The HSE annual statistics were released earlier this year and show that the number of company directors and senior managers prosecuted for health and safety offences has more than trebled in a year.

As of 31^st March 2016, 46 company directors and senior managers were prosecuted for breaching the law by the HSE, the independent regulator.

Almost all the cases involved the injury or death of an employee and many involved the construction industry. Of those prosecuted in the past year 34 were found guilty, resulting in 12 prison sentences, although some were suspended. The defendants in these cases are increasingly members of senior management

Prosecution of directors is intended to “hold them to account for their failings,” the regulator said. “HSE’s policy is to prosecute directors when we have evidence that they have breached the law and when it is in the public interest to do so”

Cases

In one case, the director of RK Metal Works in north London was convicted of gross negligence and manslaughter after a five-tonne metal-cutting guillotine fell from the forklift truck he was driving and crushed a worker.

Fines are now routinely hitting the £1m mark for non-fatal offences, levels of fines can now pose a serious threat to a company’s financial well being.

In September Network Rail was fined £4m over an incident involving a passenger being killed by a fast rain at a level crossing, while Merlin Entertainments received the highest fine to date of £5m for the Alton Towers rollercoaster crash

A production company involved in making the film Star Wars: The Force Awakens was fined £1.7m after Harrison Ford broke a leg when he was hit by a steel prop door.

The Law

Virtually all prosecutions by the HSE concern allegations that an employer has breached their duty to of care to either employees or non-employees. These duties are set out between section 2 -7 of the Health and Safety at Work Act 1974 Act (“the Act”.

Mots prosecutions concern the failure of employees to look after the health and safety of its employees. These duties are specifically set out in section 2 of the Act but similar duties apply to non-employee and other members of the public.

Duty to Employee

Duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees (Section 2 (1)). This duty includes the following matters:

• The provision and maintenance of plant and systems of work
• Arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances
• The provision of such information, instruction, training and supervision as is necessary to ensure the health and safety at work of employees
• As regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks
• The provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work

The Offence

Should an employer fail to discharge his duties in breach of section 2 – 7, then he/she (or body corporate as appropriate) is guilty of an offence contrary to Section 33 (1) of the Act.

The most common reasons for a HSE prosecution include:

• Breaches of health and safety law resulting in serious injury or death
• Poor health and safety standards and risk management
• Failure to respond to HSE warnings or an improvement or prohibition notice
• Failure to provide employees with the appropriate work wear and health and safety equipment
• Attempting to obstruct or deceive a health and safety investigator

Sentence

On 1^st February 2016, the Sentencing Council issued new guidance for sentencing of Health and Safety Offences. Under the new measures, the scale of fines varies according to the turnover of the company but can exceed £20m for the very worst cases involving corporate manslaughter, and potentially more for the largest companies.

As to the purpose of this offence, in the Merlin Attractions Limited (the Alton Towers) case, HHJ Chambers QC said:

“The offence is concerned primarily with punishing the criminality for the exposure to a material risk; the fact that actual injuries were in fact caused is simply a manifestation of that risk and an aggravating feature. Although those injured in this incident are at the forefront of everyone’s mind, this sentencing exercise should not be seen as an attempt to put a monetary value on what has happened to them or on their injuries; compensation will be for the civil court. No financial penalty can put the clock back. It is for me to judge the seriousness of the offence by assessing culpability and the risk of harm”.

As is common with other sentencing guidelines, before identifying the starting point and category range the court must first consider culpability and harm

Question of culpability will be determined by whether or not the employer put in place satisfactory instructions, whether concerns were monitored, the extent of the failure, was it for example systemic failure within the organisation. Employer / employee engagement is also important, an employer’s failure to properly acknowledge and address employee concerns will amount to an aggravating factor.

These factors will also assist the court in determining whether the accident / incident was forseeable. If it was forseeable then culpability will be assessed as high.

The guideline makes a distinction between consequence (the seriousness of the harm risked) and the likelihood (the chance of that harm actually arising) of harm. The Court of Appeal, in R v Board of Trustees of the Science Museum [1993] 1 WLR 1171, explained that the test should be applied as meaning simply the risk that something may happen.

Once the ‘culpability’ and ‘harm’ categories are established, the turnover of the organisation will be used to allocate a particular sentencing matrix. There are different matrices depending on the size of the organisation:

• Micro – Turnover not more than £2 million
• Small – Turnover between £2 and £10 million
• Medium – Turnover between £10 and £50 million
• Large – Turnover over £50 million

Provision is made for ‘very large’ organisations, with the Guidelines stating that it may be necessary to move outside of the stated ranges. Unfortunately, no further guidance is given on how those calculations should be conducted.

Once the matrix has been used to determine the fine range, it will then be for the Court to engage in the normal sentencing exercise and follow the following process:

• Consider any mitigating and aggravating features of the case, as listed in the Guidelines;
• Ensure that the fine is proportionate to the means of the offender;
• Consider other factors that may warrant adjustment of the fine, such as the impact of any fine on the local economy; and
• Apply a reduction for a guilty plea (where appropriate).

Whilst the figures used within the Guidelines provide some clarity to the sentencing process, the above four stages still maintain a level of unpredictability about the fine to be imposed. There will be cases with similar fact patterns that may still differ in the level of fine, perhaps due to the mitigating and/or aggravating features that are applicable.

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If you’ve got a question about regulatory law, the HSE, or anything else, please get in touch.

Brexit is not the only revolution of 2016. The proposed new offences contained in the Criminal Finance Bill (the “Bill”) represents what stands to be the largest expansion of UK corporate criminal liability since the Bribery Act 2010.

The Bill is to “tackle money laundering and corruption, recover the proceeds of crime and counter terrorist financing”.

What’s in the Criminal Finances Bill?

The bill contains: (i) new criminal offences relating to corporate failure to prevent the facilitation of tax evasion; (ii) changes to the Suspicious Activity Report (SAR) regime; (iii) enhanced proceeds of crime powers; (iv) new disclosure powers to combat money laundering; and (v) the Unexplained Wealth Orders regime.

In this article I address two of the proposals in the Bill, the new corporate offence of tax evasion and the Unexplained Wealth Orders.

Corporate facilitation of tax evasion

A company is guilty of a criminal offence if an associated person commits a UK or foreign tax evasion facilitation offence (a TEFO) while acting in their capacity as an associated person of the company.

What behaviour constitutes ‘acting in the capacity’ of an associated person? The Draft Government Guidance gives the example of an employee helping their spouse evade tax. While a TEFO would have been committed by the employee, the conduct is a ‘frolic of their own’ and not performed in their capacity of a person associated with the employer. Accordingly, the employer would not be liable for the corporate offence.

The guidance also focuses on a corporate’s defence to the new crime. A company is not guilty if it had “such prevention procedures as it was reasonable in all the circumstances to expect [it] to have in place” – or – it was not reasonable to expect the firm to have such procedures in place. The wording thus differs slightly to the Bribery Act’s section 7 defence that a firm “had in place adequate procedures designed to prevent” associated persons from bribing. However – it seems unlikely that there is much practical difference between the two. The Explanatory Notes to the Bill state that prevention procedures are not required to be ‘fool-proof’ or ‘excessively burdensome’. The latter remark may be a matter of perspective: those who remember the implementation of the Bribery Act will be in little doubt that ensuring ‘reasonable’ procedures to prevent tax evasion across a global financial services firm will be no small task.

Inevitably, the complexity of this new offence raises the question of how often it will be prosecuted. However, it is worth noting that HMRC has well developed civil settlement tools to encourage individuals to disclose tax evasion (i.e. Code of Practice 9 and Contractual Disclosure Facilities). Accordingly, regulators may find it easier to gather evidence than in Bribery Act cases (where similar options do not exist for individuals).

HMRC has now published draft guidance on the new criminal regime and the defence of reasonable “prevention procedures”.

The processes and procedures recommended by the draft guidance are based on six guiding principles. The principles are almost identical to those published in respect of the “adequate procedures” required by the Bribery Act 2010. The principles are: (i) risk assessment; (ii) proportionality of risk-bsed prevention procedures; (iii) top level commitment; (iv) due diligence; (v) communication (including training); and (vi) monitoring and review.

Enhanced investigatory and recovery powers

The bill introduces measures that improve the capability for investigating suspected money-laundering or terrorist financing and recovering proceeds of crime. For example Unexplained Wealth Orders (UWO).

The Serious Fraud Office, HM Revenue and Customs and other agencies will be able to apply to the high court for an order forcing the owner of an asset to explain how they obtained the funds to purchase it

The orders will apply to property and other assets worth more than £100,000. If the owner fails to demonstrate that a home or piece of jewellery was acquired using legal sources of income, agencies will be able to seize it.

This is sufficient to trigger a criminal investigation, usually starting with an interview under caution at which the suspect can choose how they respond. The consequences of the suspect’s decision not to provide an account is only relevant if the investigation proceeds to a criminal trial and an adverse inference drawn at such trial. Now, in cases where HMRC is considering pursuing a case based on suspicion of unexplained wealth, they can compel a person to tell them how the asset was funded. A refusal to respond provides a fast track to recovery of that asset.

The UWO is different from traditional confiscation powers in two crucial respects. First, it shifts the burden of proof in respect of the legitimacy of the asset from the investigating authority to the asset owner. Second, the confiscation is not conviction based: there is no requirement to prove that the asset owner has committed a predicate criminal offence

The Bill has now reached report stage in the Houses of Commons and we will need to wait to see how the proposals develop and what safeguards will be put in place in the event that they are introduced.

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If you’ve got a question about financial crime, get in touch today to see how we can help.