MembersList RegulatoryGroup
ToviewordownloadmembersCVspleasevisitNo5.com
TimPole HeadofGroup(2001)
AdrianKeelingKC (Silk:2011Call:1990)
MichaelDuckKC (Silk:2011Call:1988)
MarkHeywoodKC (Silk:2012Call:1986)
MichelleHeeleyKC (Silk:2017Call:2001)
MarkKellyKC (Silk:2021Call:1985)
HarpreetSandhuKC (Silk:2022Call:2005)
TalbirSinghKC (Silk:2023Call:1997)
PhillipRuleKC (Silk:2023Call:2001)
BernardThorogood (1986)
EkwallSinghTiwana (1988)
IanBridge (1988)
AdamFarrer (1992)
ColinBanham (1999)
MiranUddin (2001)
ChristopherHopkins (2003)
SarahAllen (2005)
SimonHunka (2007)
PhillipDayle (2012)
LucyCoulson (2013)
PhillipVollans (2015)
KawsarZaman (2018)
SapandeepSinghMaini-Thompson (2021)
LukasHamiltonEddy (2015)
ChiefExecutive&DirectorofClerking
TonyMcDaid
PracticeDirector
ChristopherNorman Tel:+44(0)1179178503 Email:christophern@no5.com
No5Barristers'Chambersprovidesservicesonanequalopportunitybasisandencouragesattendancebythosewithdisabilities.
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Annual Regulatory Seminar
3rd October 2023
No5 Barristers’ Chambers, Birmingham
Programme
3 CPD Hours 9:00am – 9:30am Registration
9:30am – 9:45am Welcome – Tim Pole, No5 Barristers’ Chambers
9:45am – 10:30am
Admissibility of evidence from Coronial Inquests in other proceedings - Philip Vollans, No5 Barristers’ Chambers
10:30am – 11:15am
Death and Serious injury by driving – new offences and guidance - Ian Bridge, No5 Barristers Chambers
11:15am – 11:45am Refreshment Break
11:45am – 12:20pm
Universities and their Legal Duties - Adrian Keeling KC, No5 Barristers’ Chambers
12:30pm – 13:15pm
Bad Character Applications in Regulatory Prosecutions - Chris Hopkins, No5 Barristers’ Chambers
13:15pm – 13:30pm Q&A
13:30pm – 14:30pm Lunch
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Tim Pole Regulatory
Year of Call: 2001
Email Clerks: regulatory@no5.com
Tim is Head of the Regulatory Group.
Tim has a wealth of experience in dealing with regulatory offences. He has appeared in a wide range of cases from Health and Safety to Environmental Offences, Planning breaches Food Safety, Consumer Law and Trademark Offences.
Health and Safety Law
Tim has experience in all aspects of the prosecution and defence of health and safety offences. He has prosecuted and defended in cases involving serious injury and death. He was junior counsel in one of the country’s most complex health and safety investigations concerning an outbreak of Legionnaires disease in Wales (see notable cases). He has developed a nationwide practice in relation to health and safety offences. He is regularly instructed in high profle cases by the Health and Safety Executive and a number of local authorities nationally. He has recently prosecuted signifcant companies such as Warburtons Limited, Poundstretcher Ltd and Tayto Ltd. He is regularly instructed at the pre charge stage to advise prosecuting authorities in relation to the bringing of cases and to advise defendant companies and individuals subjected to health and safety investigations (see Notable cases below.)
Prohibition and Improvement Notices
Tim has appeared in a number of appeals before the Employment Tribunal in relation to prohibition and improvement notices.
Environmental Law
Tim regularly appears both for and against the Environment Agency and is considered one of the leaders in the feld in relation to enforcement arising out of environmental relation. He has prosecuted some of the most signifcant cases brought by the Environment Agency on the Midland Circuit in recent years both as lead counsel and junior counsel. His vast experience in acting for the Environment Agency provides unrivalled insight and expertise when deployed on behalf of companies and directors facing enforcement ( of any sort) launched by the agency.
Food Safety and Consumer Law
Tim has signifcant experience of representing companies, facing allegations of regulatory breaches in relation to food safety, advertising and packaging. He has represented large manufacturers in relation to complex allegations arising from trading standards investigations and investigations by the Food Standards Agency. In particular in relation to claims concerning product ‘origin’. He regularly represents and advises local authorities in relation to pre charge and prosecutions concerning complex food safety offences. In the last 12 months his cases have involved representing one of the country’s largest meat suppliers. The company faced allegations that it contravened the Food safety and Hygiene (England) Regulations 2013
He represented the company at trial to a successful conclusion. The case involved complex expert evidence from a number of veterinarians.
He has prosecuted on behalf of local authorities in complex cases. He recently advised pre charge and prosecuted one of the country’s leading suppliers of meats in the north of England stemming from a complex investigation which led to a number of breaches of food safety law.
He recently represented an abattoir in relation to allegations concerning its operations at plant and prosecution by the Food Standard Agency. The case involved multiple defendants both corporate and individual.
Inquests
Regularly appears at inquests of some of the country’s leading insurers. Has dealt with a wide range of inquests involving
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complex medical, scientifc and reconstruction evidence. Tim is able to draw on his wealth of experience in relation to reconstruction evidence derived from his leading practice in offences involving road traffc fatalities. Tim has also been able to draw upon his expertise in relation to Health and Safety Law to assist a wide range of leading companies including those in construction, property management and highway maintenance.
Planning and Enforcement
Regularly advisers developers and local authorities in relation to breaches of planning laws and enforcement notices. He regularly represents individuals and businesses at frst instance and on appeal in relation to breaches of planning law and enforcement notices. He is also experienced in appeals relating to revocation of waste licences.
Noise Abatement
Tim is regularly instructed in appeals against noise abatement notices and offences that arise out of breach of the same. He has appeared in the High Court in relation to applications for injunctive relief as a result of Public Nuisance.
Proceeds of Crime Act 2002 and Fraudulent Trading
Tim is increasingly asked to represent companies facing confscation applications as a result of regulatory breaches and planning breaches. Tim is an expert in this feld.
He also has experience of representing directors facing allegations of fraudulent trading and signifcant experience of applications pursuant to the Proceeds of Crime Act. He has appeared at frst instance and in the court of Appeal in a number of reported cases. He represented appellants in a number of the “Chambers Review Cases”, the largest review of cases that had been wrongly decided pursuant to P.O.C.A 2002 and in the process recovered sums in excess of 1 million for his clients.
Trademarks
Experience of prosecuting and defending cases concerning infringement of Trademarks and offences contrary to the licensing Act 2003.
Trees
In 2009 he successfully conducted on behalf of Leicester City Council one of the frst prosecutions in relation to the breach of a remedial notice issued pursuant to the Anti-Social Behaviour Act 2003. The remedial notice having been issued following a complaint to the local authority concerning a dispute in relation to laylandii.(see notable cases). Tim has dealt with allegations concerning breaches of Tree Preservation Orders.
Recommendations
“He is very pragmatic and technically very good.” “He’s a really solid performer and well liked by his instructing solicitors.” “He is a very good advocate.” “He is good with clients and he is tenacious.”
Chambers UK 2023
“Tim provides a faultless judgement. He has an excellent eye for the issues that matter, great courage and determination. He always acts in a highly effective manner.”
Legal 500 2023
“Tim’s greatest strengths are found in the combination of superb judgement, hard work, and approachability. Quite simply, he gets to the heart of issues remarkably quickly and takes his client every step of the journey.”
Legal 500 2022
“Very strong commercially and a clear advocate.”
Chambers UK 2022
“He is extremely knowledgeable, very effcient and a good advocate. He also has very good client skills.” “A real fghter who does not shy away from diffcult arguments.”
Chambers UK 2021
“An excellent, highly attentive advocate who defends his clients with zest and vigour.”
Legal 500 2021
“He can be helpfully dogmatic and tough in diffcult situations: he does not roll over easily but runs with the argument. He’s good at managing expectations and is excellent with clients.”
Chambers UK 2020
“He has frst-class technical knowledge of health and safety law.”
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Legal 500 UK 2020
Junior Barrister of the year 2018
Recommended in Chambers and Partners and Legal 500 since 2015
Notable Cases
HSE v PT Ltd
2018
Successful prosecution of large wood yard in relation to work place transport.
HSE v FF Ltd
2018
Prosecution of leading packaging manufacturer following accident resulting in life changing injuries.
HSE v R Limited
2018
Large steel manufacturer- failure to guard.
HSE v S
2018
Prosecuted rogue plumber for serious health and safety breaches.
W Council v H Hospitality Limited
2018
Defended company facing allegations in relation to management of a leisure complex. Successfully and advised and represented signifcantly reducing the fnancial penalty.
C Council v Y Limited
2017
Prosecuted company for failings in relation to the organisation of mass participation leisure event
HSE v M recycling plant limited
2017
Led junior in prosecution of large recycling plant failings resulted in fatality
S Council v Poundstretcher Ltd
2017
Prosecuted large national retailer for breaches of health and safety legislation 5 week trial. Earlier prosecution in 2015 conducted against same company
HSE v NC council
2017
Instructed to prosecute large council for signifcant failings resulting in life changing injuries for a member of the public (ongoing).
HSE v N Council
Prosecuted large council for longstanding failings leading to signifcant injuries. (ongoing)
HSE v Warburtons Ltd x2
2017
Successfully prosecuted leading bread manufacturer sentenced to fne of 2 000 000 at Wolverhampton Crown Court and 1.9 million
HSE v Tayto Ltd
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2017
Prosecuted leading snack manufacturer sentenced to fne of 330 000.
S K Council v Losberger UK Ltd
2016
Successfully prosecuted signifcant supplier of event structures. Advised pre-charge and prosecuted case to successful conclusion.
HSE v Arma Ltd
2016
Successfully prosecuted lengthy trial concerning serious breaches of health and safety regulations in relation to asbestos.
HSE v Veolia ES (UK) Ltd
2015
Prosecuted large recycling plant for serious Health and Safety breaches. Fine and costs totalling approx 500 000. New sentencing guidelines utilised.
ENVIRONMENT AND PLANNING
EA v L, G and W
2019
Individual directors prosecuted for signifcant breaches of permit resulting in two signifcant fres. One of the largest prosecutions brought by the EA.
EA v N and A
2018
Prosecution in relation to large unlawful waste site.
EA V C LTD
2018
Successfully prosecuted company for signifcant and complex breaches of permit.
EA and Natural Resources Wales v TE Limited
2018
Successfully prosecuted company at frst instance. Company failed to obtain authorisation for deployment of waste on agricultural land.
NOISE ABATEMENT
R (Private Individual) v Equestrian centre
2018
Successfully defended company facing private prosecution brought by wealthy neighbour.
Bracknell Forest Council v J N S LTD
2016
Advised large sports company in relation to noise abatement notice.
MK Council v School R
2015
.Represented board of governors facing abatement notice in relation to use of foodlit all weather pitch.
High Court Birmingham Coventry City Council v SH
2015
Advised and led councils application for an injunction in the High Court in relation to public nuisance which had not been abated by the issuing of and prosecution for breach of Abatement Notices. Injunction and costs granted.
Leamington Magistrates’ Court
2014
Represented care home facing noise abatement notice resulting in negotiated settlement and withdrawal of the notice.
FOOD SAFETY AND CONSUMER LAW
S Council v C E ltd
2018
Complex prosecution involving legal challenge to defnition of “Business Operator.”
Appointments
In 2012 Tim was successfully appointed to the list of
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Specialist Regulatory Advocates in Health and Safety, Environmental Law and the Offce of Rail Regulation. He regularly trains health and safety inspectors in relation to case preparation and presentation.
Awards
Shortlisted for junior Barrister of the Year in 2018 Ede and Ravenscroft Middle Temple Student of the Year 2001
Sir Joseph Cantley Scholar 2001 Sir Robert Micklethwaite Scholar 2001
Memberships
CBA HSLA
Qualifcations
B.A Hons P.G Dip
Languages
French Fluent
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Philip Vollans Regulatory - Regulatory
Year of Call: 2015
Email Clerks: regulatory@no5.com
Philip has a developed an in-depth knowledge of matters including Health and Safety, Environmental, Built Environment, Licensing, Specialist Regulatory, and Road Traffc Offences. Developing his knowledge of Regulatory Offences both in the Magistrates’ and Crown Court, Philip has represented individuals, and international companies throughout various stages within the trial process.
Philip is an experienced advocate, and one of a few Barrister’s who came from an Architecture background. Working in an Architectural Practice, he has an in-depth knowledge into the requirements, and regulations surrounding the built environment, and has developed a practice understanding the complexities involved within the construction industry. Philip has previously been seconded with the Crown Prosecution Service, where he developed a comprehensive understanding of the requirements of both the procedures and decisions of prosecuting local authorities, local councils, and the CPS. Philip has been instructed on cases involving medical professionals, and serious misconduct, and sexual allegations. Philip understands the rules relating to individual prosecuting authorities, undertaking both private and public prosecutions.
Regulatory Offences
Health And Safety Provisions
Instructed in cases involving Health and Safety Philip has developed a comprehensive understanding of the rules and regulations of the Health and Safety at Work Act. Instructed in cases involving procedural scrutiny, and company working practices, Philip has assisted senior counsel on complex areas of law including cases involving serious injury, and gross negligence manslaughter.
Professional Disciplinary Matters
Instructed to represent individuals and professional bodies regarding disciplinary offences, Philip receives instructions in relation to individuals including Medical Professionals and Professionals connected with the built environment.
Medical
Philip has represented the interests of individuals at hearings at various stages, providing in-depth advice and submissions regarding the cross-admissibility of evidence, interim measures, and the implications of ongoing and past criminal proceedings. Representing the interests of individuals within NMC hearings, Philip has experience of representing individuals within complex criminal and disciplinary matters, which enables both continuity and advise throughout the entirety of the proceedings against his clients and to any tribunal.
Built Environment
Philip receives instructions in relation to professionals within the built environment including Chartered Architects, Surveyors, Engineers, and third party manufacturers. Providing comprehensive advice regarding the obligations and requirements of individuals within the built environment and the liability arising within the phases of construction. Philip has provided advice to companies and lay clients regarding complex legal issues of refurbishments and developments, as well as breaches of professional obligations.
Environmental
Philip has been instructed to represent companies, and defendants including large scale disposal of waste, operating hours, chemical disposal, and company regulations. Philip has appeared both in the Magistrates’ and the Crown regarding complex matters involving Environmental regulations, appearing on behalf of both the prosecution and defence. Familiar with the regulations and provisions in relation to the functions of the Countryside Councils, the Forestry
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Commission, and the Environment Agency, having previously worked alongside Countryside and Land Agents, he has a unique insight into the practical implementation of legislation.
Undertaking advisory work on behalf of a local authority, Philip has previously advised on local government strategies, and the development of legislation in relation to Environmental Issues. These included development and compliance of green strategies including natural habitats for rare species, applications for rewilding on brownfeld sites, and compliance with planning legislation.
Philip has represented the interests of clients on areas including planning enforcement notices, and post permission, POCA prosecutions, disposal of waste, local development order compliance, breaches of tree preservation orders, adherence to FSC and other Environmental legislation. Philip has provided advice regarding planning applications, and compliance with planning permission, as well as dispute resolution on matters relating to local developments.
Philip has been instructed on behalf of local authorities regarding advice on court summons, and obtaining possession orders on behalf of the landowners.
Philip has represented the interests of a companies in relation to their compliance with Building Standards and planning, third party contractual agreements, and insurers liability. In addition, Philip was previously instructed as assisting counsel to a core participant during the Grenfell Tower inquiry.
Housing
Philip has an in-depth understanding of the rules and regulations pertaining to the Built Environment. Philip has undertaken work relating to HMO’s, building regulation compliance, Community Infrastructure Levy.
Studying Architecture, and working within an Architectural Practice, he is one of the few Barristers who has developed a wealth of knowledge from frst-hand experience within the construction industry. Familiar with complex drawings, regulations, Architectural practices, and working methodology, he has been instructed on complex cases involving private and public buildings within the UK. Furthermore, Philip has assisted and advised Landlords regarding ongoing Tenant disputes which encompass both criminal and civil areas alike.
Licensing
Philip has regularly appeared on behalf of the defence and licensing authorities regarding breach of exemptions, permits, and licenses. He has also provided advice on both large, and small-scale businesses regarding licences of commercial premises, environmental licences, and matters relating to the Marine and Coastal Access Act 2009.
Road Traffc Law
Philip developed his practice in London, becoming familiar with a wide range of offences from initial requests for information by the DVLA through to cases involving Death by Dangerous Driving. He has an in-depth understanding of the statutory framework, case law, and procedures involved, and has appeared on behalf of International Companies, and individuals alike.
Military Regulations And Court Martial
Previously being involved within the Military, Philip has developed a keen understanding of the rules and regulations surrounding the Armed forces and Military personnel. His experience through charity work and his own personal interest has developed an area of personal interest within his career. Philip has represented many serving, and retired military personnel across the services and takes instructions regarding regulatory, criminal, and family matters.
Appointments
Appointed to List C of the List of Specialist Regulatory Advocates in Health and Safety and Environmental Law.
Awards
The Pegasus Award, The Honourable Society of the Inner Temple (2021)
Memberships
Association of Regulatory and Disciplinary Lawyers (ARDL)
Royal Institute of British Architects
Qualifcations
LLB (Hons), College of Law, Birmingham
BA (Hons), Architecture, University of Sheffeld
BPTC Scholarship, The University of Law
2013
Health and Safety Lawyers Association
United Kingdom Environmental Law Association
BPTC, College of Law, Birmingham
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Ian Bridge Regulatory
Year of Call: 1988
Email Clerks: regulatory@no5.com
Called in 1988 Ian has been a barrister for more than 30 years. He does leading and junior work regularly co-defending alongside and prosecuting Queens Counsel. He undertakes direct access work and is available for initial consultation by arrangement with his clerk Chris Norman on 0117 917 8500.
He is a specialist in the following areas of work.
Motor Crime & Motor Regulatory
Ian defends drivers facing prosecution following fatal and serious injury traffc incidents. Over the course of the last 5 years he has been instructed by specialist frms in more than 100 such cases. He has been instructed on behalf of a number of prominent individuals. He has appeared in courts across the country including the Court of Appeal. He is “on panel” for major insurers.
He has acted on behalf of a large number of commercial vehicle drivers involved in incidents often arising as a result of blind spots concealing pedestrians, cyclists and motorists.
He has acted in a number of cases where dangerous condition is alleged.
Amongst numerous others he represented the acquitted driver in the Bath Tipper disaster and the driver in the M20 Bridge Strike
He is familiar with “type approval”, design and vehicle recall issues.
He has acted in numerous cases where the Defendant driver’s health has been an issue. He has experience inter alia of cases involving sleep apnoea/sleepiness, syncope, epilepsy and diabetes (hypoglycaemia). The insanity/automatism defence with its attendant diffcult law has arisen in a number of his cases.
He has acted in a number of multiple cause cases and has successfully defended drivers whose driving although questionable did not “cause” the death including so called “but for” cases, cases where the death followed a collision, but the injuries sustained cannot be proven to be a contributory cause and cases where there is an unforeseeable intervening cause.
He has acted in high profle cases involving police offcers where the IOPC have intervened.
He has been instructed to advise in cases involving licensing and ftness. He has advised and represented on public enquiries before the Traffc Commissioners.
He regularly acts on behalf of interested parties at inquest arising from fatal RTI’s Health & Safety
For the last 20 years he has been briefed by both defence and prosecution in health and safety cases. He is recognised as an expert in the feld by the Health and Safety Executive who instruct him to prosecute in the most complex and diffcult cases. He is regularly briefed by a number of well-known national frms of solicitors on behalf of companies and individuals facing trial for offences contrary to the Health and Safety at Work etc Act 1974 He has a broad range of experience set out below. He has represented board members facing allegations as well as companies. He regularly appears at inquests representing interested parties and the Health and Safety Executive. Healthcare – He has appeared in cases involving fatal and serious injury incidents in hospitals and care homes. His experience includes deaths in restraint, suicide, failures in water management systems (legionella outbreaks), failure of PFI management systems, scalding incidents, hoist failures and incidents where patients requiring 24 hour supervision
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have died as a result of being left unsupervised.
Construction – He has appeared in numerous cases involving fatal and serious injury incidents on construction sites. His experience covers scaffold collapses, falls from height – roof and lift shaft falls, falling masonry and signs, demolition planning, electrocution, trench collapse, asbestos contamination and heavy machinery accidents.
Factories and manufacturing - He has acted in cases arising from woodworking machinery accidents, automated plant and inadequately guarded rotating machinery and presses.
Warehousing, Retail and Transport – He has appeared in numerous cases involving deaths and injury arising from failures in workplace transport. His experience covers goods falling from vehicles, vehicles colliding with workmen and workmen being crushed or injured by vehicles operating on sites with inadequate separation between workmen and machines. He has acted in cases involving overstocking in retail premises.
Mines and Quarries – He was instructed in the 1990’s by British Coal in the respiratory disease litigation and had some involvement in deafness, VWF and explosive fume cases. He has acted subsequently in a number of cases covering crushing from collapse and/or falling rocks, explosive fumes and coal dust, conveyor and manrider accidents, and gas poisoning cases including carbon monoxide in a wider context than mines and quarries (domestic boiler cases).
Agriculture and Forestry – He has acted in a number of serious and fatal injury cases which have occurred on farms or whilst felling trees.
He is instructed in criminal and coronial aspects of this work.
Criminal Fraud and Money Laundering
Ian Bridge is recommended in band 1 for fraud and fnancial crime. For the last 20 years he has defended in major fraud and money laundering. He has a number of reported Court of Appeal cases. His past signifcant cases include R v Haddi & Ors (investment fraud), R v Early (London City Bond), R v Smyth (Izodia plc fraud), R v Blair & Others (money laundering), R v Lieberman & Ors (Hackney election fraud), R v Sampson & Ors (landfll tax fraud), R v Sykes & Ors (Cheney pension scheme fraud), R v Ramzan & Ors trial; appeal and retrial (£500 million money laundering), R v Hussein (Burnley election fraud), R v El Kurd (appeal and retrial), R v Anwoir & Ors, R v Montilla & Ors, R v Chahal & Ors (MTIC), R v Ravjani & Ors (MTIC ), R v Leighton (Little Wing Film Scheme Tax Fraud), R v Hill (self-employment tax fraud), R v Heaton (mail dumping fraud), R v Pruthi (£115 million ponzi fraud), R v Hirst & Ors (£10 million Majorca ponzi fraud), R v Arwo & Ors (Astonbrook Housing charity fraud), R v Fonseka & Ors (Sri Lankan ponzi fraud).
Ian is regularly consulted by solicitors and other professionals in relation to their ethical and statutory duties regarding money laundering.
Tax Tribunal and Civil Fraud
Ian Bridge has acted in the tax tribunal on behalf of a large number of companies denied VAT input tax reclaims. He is an expert in cases where companies have been denied VAT reclaims or assessed on the basis of Kittel/Mahageben (alleged knowledge or means of knowledge of connection to fraudulent VAT losses)and Mecsek-Gabona (denial of zero rating in EU transactions) – so called MTIC cases. He is instructed by frms of solicitors and accountants specialising in this particular area.
He has also acted in tribunal appeals unconnected to MTIC. In particular he acted on behalf of Wheels in the FTT and the UTT in a case with wide raging implications relating to the cross over between IPT and VAT for taxi operators. The Commissioners for HM Revenue and Customs v Wheels Private Hire Ltd: [2017] UKUT 0051 (TCC).
He is currently instructed on behalf of a number of Appellant directors appealing decisions to issue penalty assessments pursuant to powers contained in Schedule 24 of the Finance Act 2007. He has successfully argued that individuals facing such allegations are entitled to a representation order as the proceedings are “criminal” in nature. There are potentially other implications of the fnding for the conduct of “criminal” appeals in the frst tier tax tribunal.
He is currently instructed in a penalty case where the penalty has been issued for breaches of the Money Laundering Regulations 2017 in which the Tax Tribunal has jurisdiction to hear the appeal. He anticipates instruction in penalty appeals under sections 69C,D & E of the recently amended VAT Act 1994 which specifcally reference Kittel and Mecsek-Gabona.
Ian is instructed in civil fraud in the High Court and recently succeeded in defending a multimillion fraud allegation brought by liquidators against company offcers and investors alleging Kittel knowledge in a substantial VAT fraud in the energy market.
Confscation, Account Freezing Orders, Bribery and Corruption and Unexplained Wealth
Ian Bridge has acted in numerous Proceeds of Crime Act Cases including the leading case of R v Anwoir [2008] EWCA Crim 1354.
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He has recently been consulted and advised in a successfully challenged Account Freezing and Forfeiture Order. This new power to freeze and forfeit contained in Part 5 of POCA as amended by Criminal Finances Act 2017 is likely to see an exponential increase in its use by law enforcers.
He has lectured on bribery and corruption and the implications of the UWO in particular to wealthy foreign nationals resident in the UK.
Ian also regularly acts in enforcement matters including planning enforcement and statutory nuisance at all levels and stages and with particular experience in confscation under the Proceeds of Crime Act.
Notable Cases
Inquest into the death of Gladys Jones
Coroners Inquests - Inquest into the death of Gladys Jones Southwark – hospital acquired legionella
Inquest into the death of Doreen Arberry
Coroners Inquests – Peterborough – hospital pager system
Inquest into the death of Lee Wright
Coroners Inquests – Birmingham hospital suicide of mental health patient
Inquest into the deaths of Irene Wilton and Trevor Wickes
Coroners Inquests – hospital deaths following chlorination failure
Inquest into the death of Steven Perry
Coroners Inquests - Inquest into the death of Steven Perry – death of child in care in RTA
HSE – V – Imperial Commercials Ltd
HSWA prosecutions – workplace transport fatality
HSE – V – Barbour and Co LTD
HSWA prosecutions – Construction site falling debris fatality
HSE – V – John Henry and Sons LTD
HSWA prosecutions - Construction site fence collapse
R – V –White
RTA prosecutions - runaway van, causation issues
R – V – Corrigan
RTA prosecutions - fatal motorway collision, causation issues
R – V – Howsego
RTA prosecutions - London cyclist fatality
R – V – O’Hare
RTA prosecutions - motorcycle fatality
R – V – Colquitt
RTA prosecutions - motorcycle fatality
R – V – Tompkins
RTA prosecutions - alleged mobile phone use fatality
R – V – Warwick
RTA prosecutions - London cyclist fatality
R – V – Knight
RTA prosecutions - serious injury by dangerous driving passenger suffering tetraplegia
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R – V – Sudol
RTA prosecutions - multiple vehicle dangerous driving medical defence epilepsy/diabetes
R – V – Demko
RTA prosecutions - fatal accident with pedestrian, subsequent death in hospital, causation
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Adrian Keeling KC Regulatory
Year of Call: 1990 | Year of Silk: 2011
Email Clerks: regulatory@no5.com
Adrian is Joint Head of Chambers at No5. He has a regulatory practice at the highest level both locally and nationally. He specialises in the most important and challenging cases across a broad spectrum of regulatory work. He is equally at home giving advice and guidance, in case building and leading, in appearing at frst instance, and also on Appeal if needed both in Judicial Review in the High Court and in the Court of Appeal.
Adrian is someone who can understand and convey the most intellectually complicated issues – such as complex regulatory offences, fraud, gross negligence, or misconduct in public offce. He has the strong ability to understand the complex, and then convey it in clear and simple terms. He is sought out and instructed by specialist organisations for these skills, be it Local Authorities, or defending for specialist solicitors, or other regulatory bodies.
Adrian is also experienced in Health and Safety work and workplace fatalities. He practised in personal injury work at a very high level for many years whilst at the junior bar. His expertise extends from the Coroner’s Court to the Crown Court and the High Court. He adds to that knowledge that the interpersonal skills and robustness of an established silk.
Adrian has experience of all aspects of Consumer Protection work. This includes offences arising out of misleading price indications, trade description and Trademark and Copyright offences, and all offences of general dishonesty and fraud. To this technical expertise he adds the court craft of an established crown court silk.
Adrian has a very great deal of experience in representing professionals before their professional regulatory tribunals. He has represented company directors, teachers and professional international sportsmen. He is frst choice counsel for the Police Federation and enjoys a national reputation that attracts some of their most high profle, complicated and delicate work.
He takes pride in his relations with his clients and his ability to build and lead a team.
Adrian undertakes direct access work.
Languages
French
Other Information
Master of the Bench of the Inner Temple
Vice Chairman of the Anglo Thai Society
Member of the International Committee of the Inner Temple
Governor of the Warwick Independent Schools Foundation
Trustee of the Thomas White Charity
Recommendations
“Adrian can cut through volumes of material to break matters down to identify the key issues. He has a calm and unfappable manner with clients, opponents and panels.”
Legal 500 2023
Ranked as a leading silk in Professional Disciplinary, Inquests and Inquiries and Crime
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Legal 500 2022
Ranked as a Tier 1 leading silk in Regulatory, Health and Safety and Licensing, Inquests and Inquiries, and Crime – “ a great tactician”.
Legal
500 2020
Ranked in Professional Discipline and Crime - “Adrian is a frst-class barrister, who has an innate sense for the right tactical approach to a case and a magical touch with juries and tribunals”, “Charming to deal with and clearly knows his stuff”, “A highly regarded silk”
Chambers UK 2020
R v Priya Ramnath (2009)
Junior Prosecution counsel. The gross negligence manslaughter by an anaesthetist of her patient.
Operation Budapest (2008)
Junior prosecution counsel. The prosecution of an entire Outlaws Chapter for the shooting of a Hells Angels biker on the M40. The largest investigation ever undertaken by Warwickshire police. Received a Chief Constables Commendation.
Notable Cases
Inquest of Averil Hart (Cambridge)
Representing the University of East Anglia in relation to a death of a student who had an eating disorder.
Birmingham City Council (Birmingham)
Advised Birmingham City Council how to prevent a frm of solicitors from creating unwanted claims for housing disrepair in breach of the Solicitors Conduct Rules.
Re ML (High Court)
Conducted the judicial review against the Chairman of the Police Appeals Tribunal for dismissing an appeal.
Southern Water v TM Plant Hire (Brighton)
Successfully halted the regulatory prosecution of a frm alleged to have polluted the water system.
Re R (Westminster Magistrates 2018/9)
Successfully represented a property development company and its director facing a private prosecution, and then obtained their costs on its discontinuance.
Re C (London)
Represented a crematorium in its dispute with the Ministry of Justice about its construction.
Re S (Carlisle)
Represented the Borough Council seeking the revocation of the licence of a taxi driver charged with sexual assault on a passenger.
R v W (York)
Insurance backed defence of a disabled pensioner charged with causing death by dangerous driving.
Re G (Traffc commissioner)
Represented a major haulier for Amazon in proceedings before the Traffc commissioner seeking to revoke their operating licence.
Re G (West Midlands)
Successfully represented one of three serving offcers charged with perjury at an Inquest into to high profle death in custody of Kinglsey Burrell. This involved frstly in a crown court jury trial, and when acquitted a 2 month disciplinary hearing.
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Re F
Advised a successful scrap metal business on potential money laundering issues pre charge.
Re S (Traffc commissioner)
Represented neighbours objecting to the proposed of a haulage site before the Traffc Commissioner.
Middlesbrough Football Club (Nottingham)
Represented the Club avoiding payment of a quarter of a million pounds to a player intermediary convicted of fraud.
R v MA Excavations (Bolton Magistrates)
Represented the Company in relation to the lifting of the fnancial penalty arising out of a work place death prosecuted under the health and safety act.
SRA v HM (Solicitor’s Disciplinary Tribunal)
Represented a solicitor of 30 years charged with the misuse of client account money.
Coughlan v NCA (High Court)
Represented Mr Coughlan seeking to commit a serving offcer of the NCA to prison for contempt of court for dishonesty in a proceeds of crime hearing. The case was the frst of its type.
DB v SRA (Solicitor’s Disciplinary Tribunal)
Advised Mr B a solicitor of many years on the role on dealing with allegations of the making of improper referral fees.
Andrei Pavlov
Advised Mr Pavlov who was the alleged assassin by poisoning regarding participation in the Inquest of the high profle death of Russian businessman Alexander Perepilichnyy
Re J (Solicitor’s Regulatory Authority)
Advised a professional football support company on it’s application to the SRA to become registered.
R v NM (Birmingham)
Successfully represented an Assistant Chief Constable charged with criminal offences.
R v Reynolds (Worcester)
Defence of a fnancial adviser charged with fraud. Overlap with FSA allegations.
R v W and R v F (Old Bailey)
Defended 2 separate News International Journalist including the Suns Chief News Reporter over several months charged with conspiracy to commit misconduct in public offce as part of Operation Elveden.
“Plebgate”
Instructed by the Chief Constable of Warwickshire in the Judicial review
In the Matter of S 2014
Represented Staffordshire County Council before the Regulatory Powers Tribunal.
Operation Springtide (Stafford Crown Court 2013/4)
Prosecuted a 4 month Fraudulent Trading trial involving the commercial miss selling of electrical goods imported from China.
R v F (Court of Appeal)
Leading Court of Appeal authority upon misconduct in a public offce.
Re O (Manchester)
Represented a serving police offcer being investigated for criminal health and safety offences arising out of the fatal shooting of a fellow offcer on a frearms training exercise in a 2 month Inquest.
Re X (British Equine Federation)
Represented an Olympic horseman before the British Equestrian Federation disputing selection for the European Championships.
Memberships
Association of Regulatory and Disciplinary Lawyers Criminal Bar Association Qualifcations
MA (Hons) Trinity Hall, Cambridge.
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Universities and their Legal Duties
Variety of Sources
Statute
Contract
Common Law
Statutory Duties
There is no specific legislation for Higher Education Institutions.
Duties are more piecemeal.
Adrian Keeling KC
3rd October 2023 No5 Barristers’ Chambers, Birmingham
19
Occupiers Liability Act 1957 section 1
Duty owed to visitors
– take such care as in all the circumstances of the case is reasonable to see the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there
– That does not require all accidents to be avoided. Hutton v Somerset CC [2011] EWCA Civ789
– The duty owed to trespassers is more narrow. Tomlinson v Congleton Borough Council [2003] UKHL 74.
Health and Safety at Work Act 1974
Section 2(1) –those employed
It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
Section 2(2)
– (c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
(e) 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
Those not employed
Section 3
It shall be the duty of every employer to conduct his undertaking in such a way as to ensure so far as is reasonably practical that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.
–
–
–
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Section 4
– It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.
Other specific Regulations –including
The Health and Safety (display screen equipment) Regulations 1992,
the Personal Protective Equipment at Work Regulations 1992,
the Manual Handling Operations Regulations 1992,
the Work at Height Regulations 2005,
the Provision and Use of Work Equipment Regulations 1998,
the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995, and
the Working Time Regulations 1998.
Statutory Duties for other areas of concern;
Including
Safeguarding of Vulnerable Groups Act 2006
Counter Terrorism and Security Act 2015
Equality Act 2010
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Common Law Duty of Care
Start with the basics
– A duty of care in law is a specific obligation.
– It is a term not always used correctly.
The Courts are careful where it exists
– Both in principle
And breadth and Ambit.
Caparo v Dickman [1990] 2 AC 605
3 requirements
– Foreseeability of damage.
Relationship of Proximity.
It is fair, just and reasonable to impose a legal duty.
The existence of a duty of care, and its scope, is rarely determined in the abstract.
Regard must be had to all the circumstances of the case.
The relevant question therefore becomes;
– did the defendant owe a duty of care to prevent the thing which the claimant says should not have happened,
– or to do the thing which the claimant complains should have happened.
–
–
–
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The provision of teaching.
Faiz Siddiqui v University of Oxford [2016] EWHC 3150
The 3 categories of MrJustice Kerr
– “Academic Judgement”
– Negligent teaching methods
– Operational Negligence in the making of educational provision.
The Courts seem slow to impose liability
Those duties they find often go no further than
– Contractual obligations to the student
– Other specific common law duties.
A duty not to harm is imposed more readily than a positive duty to provide a benefit –including the prevention from harm by others.
– Robinson v Chief Constable of the West Yorkshire Police [2018] UKSC 4
Practical applications
Dr Robert Abrahartv University of Bristol (Unreported 20th May 2022).
Risk v Rose BrufordCollege [2013] EWHC 3869
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Beware the assumption of Risk
Risk v Rose BrufordCollege [2013] EWHC 3869
Watson v British Board of Control Limited [2001] QB 1134
Ministry of Defence v Radclyffe[2009] EWCA Civ635
Contractual Obligations
Contract to provide educational services
Pastoral Services ?
Ancillary Services ?
Dangerous Good Intentions
Desire to protect and support.
Desire to promote.
Desire to advertise.
24
Universities and their Legal Duties
afk@no5.com
25
Adrian Keeling KC
Christopher Hopkins Regulatory
Year of Call: 2003
Email Clerks: regulatory@no5.com
Christopher is a specialist regulatory barrister who qualifed at the bar following a period of service in the British Army. His experience includes over ten years working as an in-house barrister both prosecuting and defending criminal regulatory offences at an international law frm. Christopher is therefore able to adapt between working in a team alongside solicitors and lay clients or as an individual depending upon what is required. He is also Direct Access accredited for members of the public to instruct him directly.
Christopher is an experienced advocate before the Criminal Courts, Coroners Inquests, Public Inquiries before the Traffc Commissioners, Licensing Committees, the First-tier Tribunal and various professional disciplinary panels. As a former full-time prosecutor, he is well placed to provide timely and appropriate advice to regulators on the conduct of criminal investigations and disclosure. By virtue of his in-house experience, Christopher is also highly experienced in advising both individuals and organisations who are under investigation or undertaking their own internal reviews. In 2013, he was seconded to Jaguar Land Rover as its legal compliance manager where he provided support at all levels within the global business.
Christopher has advised on enforcement action and investigations being undertaken by a wide range of regulators including the Police, Health and Safety Executive (HSE), Environment Agency, Local Authorities, Natural England, Ofcom and the Marine Management Organisation. He was one of the frst lawyers to negotiate a civil sanction with the Environment Agency as an alternative to prosecution. Examples of his recent work include the following:
Criminal Regulatory Offences Health and Safety
-In August 2015, Christopher represented a leading construction business following an accident during tower crane lifting operations at one of its sites resulting in the lift supervisor suffering serious injuries. The company was prosecuted for three offences under the Lifting Operations and Lifting Equipment Regulations 1998.
-In 2016, Christopher represented a communications company being prosecuted after one of its operatives was hit by a passing bus whilst undertaking roadworks. The company pleaded guilty to temporary traffc management failures and was fned.
-In 2018, Christopher represented a facilities management service provider after one of its contract surveyors had failed to identify all the asbestos present in a building during an asbestos refurbishment survey. Both the company and the surveyor were prosecuted with the company being fned GBP 8,400 following mitigation put forward by Christopher on its behalf.
-In 2018, Christopher prosecuted an individual for gas safety offences on behalf of the HSE resulting in an immediate custodial sentence of 16 months. Christopher continues to provide regular training for new and specialist HSE Inspectors.
-In 2019, Christopher defended a micro sized company being prosecuted after two employees had struck a live electric mains cable whilst excavating. Christopher agreed a reduction in the harm category with HSE resulting in a much reduced fne and costs for the company.
Environmental
-In January 2016, Christopher successfully defended a farmer at trial after it had been alleged by the Environment Agency that slurry had escaped from his dairy farm into a nearby watercourse. The Court accepted a submission of no case to answer made at the close of the prosecution case and the farmer was both acquitted and awarded a Defence
26
Costs Order.
-Christopher recently acted for both a large food business and a micro waste business in separate prosecutions being prosecuted by a statutory water and sewerage undertaker for multiple breaches of Discharge Consents.
-In 2018, Christopher acted for a very large developer being prosecuted for felling several trees protected by a Tree Preservation Order. The company pleaded guilty and was fned GBP 10,000 after the Court accepted Christopher’s submissions that the offences were of low culpability under the applicable sentencing guidelines for environmental offences.
Food Safety and Hygiene
Christopher has advised a wide range of food business operators over many years on hygiene compliance issues including abattoirs and cutting plants. During 2019, he has defended both a cutting plant and a bakery being separately prosecuted for food hygiene offences. Christopher also recently prosecuted a food business operator for a Local Authority resulting in a Hygiene Prohibition Order being imposed.
Coroner’s Inquests
In May 2016, Christopher was instructed on behalf of a deceased’s family in a week-long jury Inquest following an employee’s death from injuries he sustained in a fall at work. In 2017, he represented a medical professional at the Inquest of an elderly man who had tragically lost his life in a Care Home. In January 2019, Christopher acted for a Care Home at an Inquest following the death of one of its residents.
Traffc Commissioner Public Inquiries
In March 2016, Christopher represented a large Local Authority which had been called to its second Public Inquiry in two years due to issues involving its good repute and professional competence, and the professional competence of its Transport Manager. No action was taken against the Transport Manager and the Operator avoided having its licence revoked.
In December 2017, Christopher represented a small business on a Direct Access basis which had been called to a Public Inquiry due to issues involving its good repute and professional competence, and the professional competence of its Transport Manager. The Operator avoided having its licence revoked.
Housing
Christopher has prosecuted and defended private landlords for criminal offences under the Housing Act 2004. He has advised on HMO licensing issues and represented Local Authorities in civil and criminal proceedings for breach of injunctions and applications for Closure Orders.
Licensing
Christopher regularly appears for both drivers and Licensing Authorities in taxi licensing appeals both in the Crown and Magistrates’ Courts.
Christopher has acted for alcohol and entertainment licence holders, and Licencing Authorities on appeal to the Magistrates’ Court. He regularly provides representation at Licensing Committee Hearings for a range of licensees from small businesses to national retailers.
Road Traffc Law
Christopher’s practice covers the full range of driving offences from failures to provide information and speeding to causing death by dangerous driving both in the Crown and Magistrates’ Courts.
Recommendations
"Christopher is very detail oriented, and nothing is ever too much trouble. He ensures that he works together with his instructing solicitor and always goes the extra mile." "His ability to communicate effectively and empathetically to a client is second to none. He approaches each case with a positive attitude and seeks the very best possible outcome." Legal 500 2022 - Professional Disciplinary Law (Midlands)
27
Appointments
Appointed to List B of the List of Specialist Regulatory Advocates in Health and Safety and Environmental Law.
Memberships
Health and Safety Lawyers Association
Council Member of Birmingham Health, Safety and Environment Association
28
BadCharacterApplicationsin RegulatoryProsecutions
ChristopherHopkins
Introduction
IncreasingappetitefromHSEandotherregulatory prosecutorstomakeapplications
HSEEnforcementGuide
“22.Evidenceofpreviousconvictionswillnotusuallybeadmissible aspartoftheprosecutioncasebutmaybeincertainlimited circumstances,forexample,as'similarfactevidence',torebut evidenceoflackofawarenessofdangerorinnocentmistake.In limitedcircumstances,previousconvictionsmaybeadducedin evidenceas‘badcharacterevidence'ifanapplicationismadeto thecourt,andthecourtfeelsthattheevidenceisrelevanttothe case,andoneofthecircumstancesmentionedinsection101 CriminalJusticeAct2003applies.”
I
3rdOctober2023No5Barristers’Chambers,Birmingham
29
Overview
Refresher
–Whatisbadcharacter?
–Gateways –Safeguards –Relevance
–Noticerequirements
Cases
“Knownunknowns”andchallengingapplications
WhatisBadCharacter?
CriminalJusticeAct2003(effectivefrom15/12/04)
S.98
“ReferencesinthisChaptertoevidenceofaperson’s“bad character”aretoevidenceof,orofadispositiontowards,misconduct onhispart,otherthanevidencewhich—
(a)hastodowiththeallegedfactsoftheoffencewithwhichthe defendantischarged,or
(b)isevidenceofmisconductinconnectionwiththeinvestigation orprosecutionofthatoffence.”
WhatisBadCharacter?
“(a)hastodowiththeallegedfactsoftheoffencewith whichthedefendantischarged”
InMcNeill[2007]EWCACrim2927,RixLJsuggested onepossibleinterpretationofthenexusrequiredbys.98 wasthatitpermits'anythingdirectlyrelevanttothe offencecharged',provideditis'contemporaneouswith andcloselyassociatedwithitsallegedfacts
Oftenafinelinebetweenevidencefallinginandoutside s98(seeRvByrne[2021]EWCACrim107)
30
WhatisBadCharacter?
Misconductmeansthecommissionofanoffenceor otherreprehensiblebehaviourbeforeoraftertheoffence charged(s.112(1))
Anyevidencesuggestingguiltofanoffenceispotentially evidenceofmisconduct,whetherornottheaccusedhas beenchargedwithorconvictedofit
Decisionsonwhatiscapableofconstituting reprehensiblebehaviourarefact-specificbutconnotes someelementofculpabilityorblameworthinessand shouldbedistinguishedfromwhatisirritating, inconvenientorupsetting
WhatisBadCharacter?
“Reprehensiblebehaviour”arguableincludesCautions, EACivilSanctions,HSEEnforcementNotices,Housing ActNoticesandFinancialPenaltiesetc.
Fixedpenalties(i.e.DVSA,Police)arenotadmissible becauseasuspectwhoacceptsonedoesnotthereby admitthattheyhavecommittedtheoffence(RvHamer [2010]EWCACrim2053)
Evidencewhichdoesnotconstituteevidenceofbad characterwithinthemeaningoftheAct,butwhich neverthelessshowstheaccusedinabadlight,maybe admittedonnormalprinciplesofrelevance,subjectto theapplicationofthePACE1984,s.78
GatewaysforDefendantBadCharacter
Evidenceofthebadcharacterofanaccusedis admissible'ifbutonlyif'itfallswithinaspecificstatutory permission,ora'gateway’(s101CJA2003)
-allpartiestotheproceedingsagreetotheevidencebeing admissible,
-theevidenceisadducedbythedefendanthimself
-itisimportantexplanatoryevidence,
31
-itisrelevanttoanimportantmatterinissuebetweenthe defendantandtheprosecution,
-ithassubstantialprobativevalueinrelationtoanimportant matterinissuebetweenadefendantandaco-defendant,
-itisevidencetocorrectafalseimpressiongivenbythe defendant,or
-thedefendanthasmadeanattackonanotherperson'scharacter.
ImportantExplanatoryEvidenceS101(1)(C)
s102“Importantexplanatoryevidence”
Forthepurposesofsection101(1)(c)evidenceisimportant explanatoryevidenceif—
(a)withoutit,thecourtorjurywouldfinditimpossibleordifficult properlytounderstandotherevidenceinthecase,and
(b)itsvalueforunderstandingthecaseasawholeis substantial
AdmissibilityUnderS101(1)(d)
Section102(1)
Forthepurposesofsection101(1)(d)themattersin issuebetweenthedefendantandtheprosecution include—
(a)thequestionwhetherthedefendanthasapropensityto commitoffencesofthekindwithwhichheischarged, exceptwherehishavingsuchapropensitymakesitnomore likelythatheisguiltyoftheoffence;
(b)thequestionwhetherthedefendanthasapropensitytobe untruthful,exceptwhereitisnotsuggestedthatthedefendant's caseisuntruthfulinanyrespect.
32
Safeguards
S101(3)and(4)
(3)Thecourtmustnotadmitevidenceundersubsection(1)(d)or (g)if,onanapplicationbythedefendanttoexcludeit,itappearstothe courtthattheadmissionoftheevidencewouldhavesuchan adverseeffectonthefairnessoftheproceedingsthatthecourt oughtnottoadmitit.
(4)Onanapplicationtoexcludeevidenceundersubsection(3)the courtmusthaveregard,inparticular,tothelengthoftimebetweenthe matterstowhichthatevidencerelatesandthematterswhichformthe subjectoftheoffencecharged.
A'gateway'isrequiredtofacilitatecross-admissibility betweenchargesinthesameproceedingsinexactlythe samewayaswhereonlyoneoffenceischarged
S78PACEappliestoallgateways.
Relevance
Onceevidenceofbadcharacterisadmitted,questionsof weightareforthejury
AJudgeshouldstresstoajurythatevidenceofbad charactercannotbeusedtobolsteraweakcase,orto prejudiceajuryagainstthedefendant(RvHanson [2005]EWCACrim824;
AJudgeshouldemphasisetoajurythattheyshouldnot inferguiltfromtheexistenceofconvictions(perHanson).
33
NoticeRequirements
CrimPR21
ProsecutormustservenoticeontheCourtandeach otherparty20businessdaysafteradefendantpleads NGinthemagistrates’courtor10businessdaysaftera defendantpleadsNGintheCrownCourt;
Apartywishingtoopposemustserveanapplicationon theCourtandeachotherpartynotmorethan10 businessdaysafterserviceofthenotice
CourtmayshortenorextendatimelimitunderthisPart (r21.6).
Therequirementsapplyequallywhereitissoughttorely onthecross-admissibilityofaccusations
RegulatoryCases
R(HSE)vPAULJUKES[2018]EWCACRIM 176
TransportandOperationsManagerconvictedofbreach ofs7HSWA1974andsentencedto9months’ imprisonmentand£7000costs
CompanyanditsManagingDirectorhadalready pleadedguiltytoanoffenceafteranemployeehadbeen fatallyinjuredtryingtoclearablockagefromabailing machine
MDhadasubsequentconvictionforconspiracyto pervertthecourseofjustice
ApplicationbyJukestoadmitintoevidencetheMD’s convictionunders101(1)(b)and(e)wasrefused
34
R(HSE)vPAULJUKES[2018]EWCACRIM 176
Gaskellwasnotaco-defendantwithinthemeaningof section101(1)(e)whichisonlyconcernedwithacodefendantwhoistriedinthesameproceedingsbefore thesamejury.TheMDhadpleadedGuiltysowasnot.
Thetrialjudgecorrectlyidentifiedtheprincipalissuesin thecase.WhilstthisevidenceoftheMD'scharacter couldbesaidtobeofsomerelevancetothose,itwas notofsubstantialprobativevalueinrelationtothose issues,letaloneofsubstantialimportanceinthecontext ofthecaseasawholesos101(1)(b)didn’tapplyeither.
RvBIFFAWASTESERVICELTD[2020]
EWCACRIM827
Biffawaschargedwithtwooffencesoftransportingwastefor recoverycontrarytoregulation23oftheTransfrontier ShipmentofWasteRegulations2007
Attrial,ChiefOperatingOfficergaveevidencethat environmentalresponsibilitieswerecoretowhatBiffadoand itwouldbenonsensicalnottotakeitsresponsibilities seriously
Biffahadbeenconvictedof18previousoffences,including fourforhealthandsafetyoffences,threeofwhichinvolved fatalities
TrialJudgeallowedprosecutionapplicationtoadduce evidenceofpreviousenvironmentalconvictionstocorrecta falseimpressionundersection101(1)(f)
RvBIFFAWASTESERVICELTD[2020]
EWCACRIM827
Onappeal,BiffaarguedthatMrDaviswasdoingnomore thanputtingforwardtheappellant'sresponsetotheallegation thatthewastehadnotbeensortedatall,andwasnotmaking afalseparadeofvirtue.
CAdismissedtheappeal
Whetheradefendanthasgivenafalseimpressionabout himselfisfact-specific.Thejudgewasclearlyentitledtofind thattheevidencegivencouldconveytheimpressionthatthe appellantwasnotthesortofcompanywhichwouldcommitan offence.
Judgewascarefultolimittheextentofthebadcharacter evidenceadmittedandexcludedtheconvictionsforthehealth andsafetyoffences.
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HSEvEVERGREENCONSTRUCTIONUK LTD[2023]EWCACrim237
Evergreenwasconvictedaftertrialoffailingtodischarge thedutytonon-employees(s3HSWA)andfailingto dischargeadutyrelatingtoworkingatheight(Reg4 WHR)
Defencearguedonappealthetrialjudgehaderredin admittingbadcharacterevidenceattrialintheformof HSENoticesofContraventionandProhibitionagainst Evergreendatingfromsomesevenandninemonths beforethefatalaccidentwhichgaverisetothe convictions
Previousnoticeswereaccompaniedbycorrespondence fromEvergreenadmittingthefailingsandphotos
HSEvEVERGREENCONSTRUCTIONUK LTD[2023]EWCACrim237
Prosecutionarguedthatthisevidencewasproperly admittedunders101(1)(d)becauseitshoweda propensityonthepartofEvergreentobreachhealthand safetyregulationswhenactingasthemaincontractor.
CAagreedthenoticescouldshowreprehensible conductand,here,thematerialwentbeyondevidence aboutaninspector'sopinionofEvergreenleadingtothe noticesbeingissuedbecausetherewereaccompanying admissionsandphotos
CAagreeditwascapableofshowingapropensityto breachhealthandsafetylawswhenactingasmain contractor
HSEvEVERGREENCONSTRUCTIONUK LTD[2023]EWCACrim237
TheissueattrialwaswhetherEvergreenhadbreached itsdutysafelytoplan,manageandmonitorthe constructionworkunderitscontrol.Thismeantthatthere wasanissuetowhichtherelevantpropensitywent.
Theadmittedevidencewasclearlyrelevanttothose importantmatters,becausetheywererelativelyrecent breachesinoriginandsimilarincircumstances
Renewedapplicationforleavetoappealwasrefused.
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“KnownUnknowns”andChallenging ProsecutionApplications
Canacorporatehaveapropensitytocommitoffencesof thekindwithwhichitischarged?
IsapreviousImprovementorProhibitionNotice evidenceofbadcharacter(CAdoesnotappeartohave beenreferredtoRvHamer)?
Whatisthepositionwherethereisnosupporting evidenceoradmissionsasexistedinEvergreen?
Questions?
BadCharacterApplicationsin RegulatoryProsecutions
ChristopherHopkins
CHP@NO5.COM
37
ChiefExecutive&DirectorofClerking TonyMcDaid PracticeDirector ChristopherNorman Tel:+44(0)1179178503 Email:christophern@no5.com Birmingham Fountain Court Steelhouse Lane Birmingham B4 6DR DX 16075 Fountain Court Birmingham London Greenwood House 4-7 Salisbury Court London EC4Y 8AA DX 449 London Chancery Lane Bristol 40 Queen Square Bristol BS1 4QS DX 7838 Bristol No5 Barristers’ Chambers provides services on an equal opportunity basis and encourages attendance by those with disabilities. © 2023 No5 Barristers' Chambers | All Rights Reserved | Registered Office Address: Fountain Court, Steelhouse Lane, Birmingham, B4 6DR | Company Registered in England No: 02727465 Thankyouforattending.
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