Crime and Regulatory roundup – November 2024

In the latest edition of Kennedys’ Crime and Regulatory Brief (CARB), we look at a number of interesting topics including growing concerns over the regulation of the water industry and the steps being taken to strengthen enforcement powers, the impact of the Grenfell Tower Inquiry’s Phase 2 Report and the recommendations it makes, and recent developments in the field of ‘safety tech’.

This issue of the CARB follows our annual Crime and Regulatory law seminar which was held in our London office on 16 October 2024. Speakers covered varied subjects which prompted a number of interesting questions from our very engaged audience. We covered:

• The four core requirements for an Operator Licence Holder;
• The importance of human factors evidence in crime and regulatory cases, specifically those where fatigue may play a role;
• The anticipated impact of a Labour government in the regulatory sphere, including increased Health and Safety Executive funding and inspections;
• An update on environmental enforcement; and
• Recent sentencing outcomes.

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In other recent news, and in case you may have missed it:

Sentencing consultation

The Sentencing Council launched a consultation on 5 September 2024 on miscellaneous amendments to sentencing guidelines. One of the areas of focus relates to the sentencing of “Very Large Organisations” (VLOs). The consultation follows submissions made by the Environment Agency that the current wording around VLOs is too limited and would benefit from being more detailed.

In addition to the published view of the Environmental Agency, there has been growing dissatisfaction amongst regulatory lawyers with the lack of clear direction in current sentencing guidelines as to how VLOs are assessed, and there have long been calls for further guidance to be developed for this category of corporate defendant.

The consultation applies to both the Environmental Offences Definitive Guideline and the Definitive Guideline for Sentencing Health and Safety Offences, corporate manslaughter and food safety and hygiene offences, as well as to retail organisations unlawfully selling knives to persons under 18.

Closing on 27 November 2024, the consultation seeks views on adding additional wording for use in sentencing VLOs, but it does not go as far as providing clarity as to at what point an organisation is considered to be a VLO, something which continues to be a headache for both prosecutors and defendants. In practice, it would seem likely that little will change if the Sentencing Council’s proposed wording is adopted. An organisation cannot be sentenced to a community order or a custodial sentence, although it is accepted that “it is possible that the change could result in higher fines in a small number of cases”.

Terrorism (Protection of Premises) Bill 

The Terrorism (Protection of Premises) Bill (the Bill), also referred to as Martyn's Law, was introduced into Parliament on 12 September 2024 and is currently undergoing parliamentary scrutiny. 

As set out in the Bill, those responsible for premises will be required to take proportionate steps, according to their capacity, to help keep the public safe. This includes a tiered approach, linked to the size of the venue, how many people will be there and the activity taking place. Venues with a capacity of between 200 and 799 will be considered 'standard tier'. Those with a larger capacity of 800 will be classed as an 'enhanced tier'.

The new requirements at ‘standard tier’ are focused on activities surrounding policies and procedures, which are to be followed by staff in the event of terrorist attack or suspected terrorist attack occurring. The aim of these requirements is to improve staff preparedness and responses. Unsurprisingly, the ‘enhanced tier’ requires a lot more, including the implementation of procedures for evacuation, lockdown, and communications, and developing a security culture, with the implementation of physical security measures like CCTV.

The Security Industry Authority (SIA) has been appointed as the body to take on responsibility as regulator. There will be a period of time prior to the implementation of the legislation following Royal Assent, which is likely to be in the region of around 24 months. This is to allow the SIA to formalise its role as regulator, and to afford those responsible for premises sufficient time to plan and prepare.

World Mental Health Day on 10 October

On World Mental Health Day the Health and Safety Executive (HSE) took the opportunity to remind employers of their duties in respect of managing stress in the workplace.

Employers have a duty under section 2 of the Health and Safety at Work etc. Act 1974 to ensure the health and safety of employees as far as reasonably practicable.

HSE figures show that approximately half of all work-related ill health can be attributed to stress, depression, or anxiety with each person suffering taking an average of 19.6 days off work. Its Working Minds Campaign, launched in 2021, urges action from employers in tackling work-related stress and mental ill-health, outlining a five step plan based on risk assessment:

• Reach out and have conversations;
• Recognise the signs and causes of stress;
• Respond to any risks you’ve identified;
• Reflect on actions you’ve agreed and taken; and
• Make it Routine.

The HSE highlights the fact that failing to manage stress at work could lead to reduced productivity, sickness absence or even losing a valued member of staff.