At SBP Law, we have successfully represented high profile individuals and companies in cases arising out of investigations and prosecutions brought by BIS, FSA, SFO and HMRC.
With an increasing number of investigations and prosecutions and the government’s drive to raise the profile of regulatory cases in the Courts, the need for specialist quality advice has never been greater.
What is a regulatory case and why do I need legal representation?
All businesses, however large or small and whatever the sector, are governed by the same regulatory framework. From safety within your business to how you manage your business’ waste, every aspect of your working world is regulated through the application of duties and obligations set down in law.
A regulatory case exists where there is an allegation of breach of these duties or obligations or a failure to meet the required legal standard. Breaches of the duties and obligations placed on businesses and individuals can be criminal offences and could result in a criminal investigation and prosecution by regulatory authorities, like Trading Standards departments or the Environment Agency. Investigations into breaches or failings are conducted in just the same way as a police criminal investigation using all the same powers and techniques. If a prosecution is brought, it will be in the criminal Courts and on conviction will result in a criminal record.
In most cases, the law allows a director to be prosecuted personally if the business he or she manages fails to comply with its duties and obligations. This could result in a criminal conviction, disqualification from being a director for up to 15 years and in the most serious cases, a prison sentence.
How do I know if I am under investigation?
Usually, you or the company secretary will receive a letter from the investigating regulatory authority inviting you to attend a meeting or appointment for an interview under caution. The letter may indicate what piece of legislation you have breached e.g. “Health and Safety at Work Act etc. 1974” and have the letters “PACE” in the heading.
Interviews under caution are a vital tool for regulators to gather evidence against you or your business and must be managed very carefully. The interview itself is undertaken using the same powers available to the police under the Police and Criminal Evidence Act 1984. If you were at a police station being asked questions about your potential involvement in the commission of a criminal offence you would want legal advice and a PACE interview by a regulatory authority is just the same. It is therefore imperative to take legal advice as soon as possible.
What is enforcement action?
A regulatory authority like the Health and Safety Executive or a Local Authority Environmental Health team may also use enforcement action against businesses and individuals to ensure compliance with duties and obligations. This will involve serving the business or individual with a Notice setting out what the failure is, what is required to reach the minimum standard for compliance and usually a timescale in which action must be taken. In almost all circumstances, failure to comply with the steps required in a Notice is a criminal offence.
However, in most cases there is a right to appeal against the enforcement Notice. Timely advice on your rights of appeal may save costs and disruption later.