Many thanks to those attendees that took part in the regulatory seminar on 25 September 2019, we hope you had an enjoyable time.

Any of our clients who could not make the event and would like to receive the slides for the topics, then please do contact us. For information, the topics covered were as followed:

  • Fire Safety – Post Grenfell
  • Entertainment/Alcohol Licensing – What’s new?
  • Coroners inquests – what’s in it for me?
  • Sentencing and what does it really mean?
  • Regulatory smorgasbord – topical round up of cases, developments and issues to watch out for
  • Insurers – what can they make you and what can they not make you do?!

Whether or not you could make it on 25 September 2019, anyone who has a question  on particular topics we discussed or that are of interest in the regulatory field please let us know.  We are hoping to do a webinar in the near future to deal with some other topical issues. So please get in touch with your problems, thoughts and suggestions that you may have

We hope you can join us at the next seminar/conference and we look forward to hearing from you in respect of the suggestions for further events.

The Local Government Association has now issued a handbook designed for Councillors dealing with applications under the Licensing Act 2003. This is a document which we should be looking at to see what guidance is being given. This is not a statutory guidance document, such as the Guidance issued under S182 of the Licensing Act issued by the Home office and therefore does not have the same status but could be useful for when appearing in front of licensing sub-committees or in representing an appellant before the Magistrates Court.

The following link will take you to the full document:

There is a lot of interesting content in the document and is really worth digesting, I will pick out some of the key points.

The section “strengths and weaknesses of the Licensing Act makes some very interesting points:

“In many respects, the Licensing Act is a positive model for a licensing system. It has a clear set of objectives, it allows local decision making, it has a clear appeals process and there are opportunities for everyone affected by a licence to make comments on it. Used creatively, licensing can be a tool to shape the places that communities live, work and socialise in and can help manage our concerns. However, the LGA has raised concerns about some weaknesses in the Act. Firstly, that the implementation of the Act has been consistently undermined by a lack of resourcing due to the centrally-set fee system. Secondly that the Act’s objectives have not been updated to reflect the return of public health responsibilities to local government. Licensing fees, which are set nationally have remained unchanged since 2005. The LGA has consistently argued that these fees underestimate the costs councils incur in overseeing the Act, and should be set locally. There have been various reviews and consultations around the localisation of fees over the last 10 years, and in 2015, the Government asked the LGA to work with it to develop an evidence base on the costs to councils of overseeing the Act. The LGA’s view is that locally set fees would re-dress the imbalance in fee incomes and whilst locally set fees might increase fees in some places, in others there may be decreases. Local fees could also benefit businesses, for example if there was a reduced annual fee.”

The document suggests that the LGA will push Government to look at local fee setting again in the future. It also suggests that the LGA still believes that a promotion of health licensing objective is needed:

“Lobbying for a health objective in the Licensing Act is long standing LGA policy. Whilst public health can contribute against any of the four existing licensing objectives, in practice it can be difficult for them to be heard; a specific ‘health’ objective could resolve that and allow a much more straightforward contribution. There is also strong support for a health objective among public health directors, Public Health England (PHE) and among some in Parliament. There has been a lot of work to build the evidence base for how this could work and PHE have piloted a health objective with eight advanced areas including Cornwall, Leeds and Wigan, which all developed practical ways to make using health data in licensing work. Building on this work PHE have developed an online resource’ 9 which brings together nationally available data and materials with local information to support councils to access a range of databases and tools. Local teams can input their own data to create interactive maps and reports to help them in their role as a responsible authority. Whilst there is no indication that the Government is going to take this forward, at least in the near future they continue to highlight the important role that public health plays in the licensing system as a responsible authority under the Act. This includes promoting the use of PHE’s analytical support package, providing public health teams with new tools to help effectively present relevant health data and supporting the Information Sharing to Tackle Violence programme to encourage A&E departments to share their data with community safety partnerships.”

The chapter on conditions is worthwhile reading and digesting.

“The setting of conditions is one of the most significant ways in which licensing authorities can influence the running of a premises. As well as mandatory conditions which are set out in the Act, authorities can also add ‘voluntary’ conditions to a licence. Used effectively, this can mean that authorities put in place the elements that are essential to promoting the licensing objectives. However, poorly designed or inappropriate conditions can have the effect of hampering a premises, preventing it from being financially viable and potentially leaving the community with an empty premises. The general rule is that conditions should be appropriate to the specific premises, necessary and proportionate. Many licensing authorities publish pools of conditions, which give applicants an idea of the types of conditions that may be imposed. It is recommended that these are published separately from the SLP to allow them to be updated in a more flexible way than the SLP would allow. Whilst pools of conditions are helpful, licensing committees should always avoid imposing these conditions as a matter of course, or as blanket conditions to be applied to every premises. The wording of such conditions should be seen as a template to ensure conditions are tailored to the specific operation of the premises. Licensing authorities must bear in mind that breach of any licence condition can potentially amount to a criminal offence, punishable by an unlimited fine and/or up to six months’ imprisonment. Conditions must therefore be clear, precise and proportionate in order for them to be enforceable.

Applications that do not attract any representations (or where representations have been withdrawn) are granted subject only to conditions consistent with the operating schedule and the relevant mandatory conditions. Officers will draft those conditions under delegated authority in that situation, drawing on their expertise and any pools of model conditions. However, if there have been representations then licensing authorities have the opportunity to impose or amend/modify conditions on the licence. Like any decision during a licensing hearing, the steps taken to impose conditions must be appropriate to promote the licensing objectives. A sub-committee should be proactive with conditions and it is always worth considering whether objections could be overcome by conditions. Comments should be invited on proposed conditions before they are imposed. Conditions can be imposed in any case where they are considered ‘appropriate’. The key thing to remember with conditions is that less is more. The premise licence holder will need to be able to easily implement them if they are genuinely to make a difference to how the premises are run. Licences may be issued with just the mandatory conditions. Licensing authorities should not aim to micro-manage premises through the use of conditions. Premises that appear to need more conditions than usual may have more fundamental problems in terms of management or planned operation. Many operators will put forward their own conditions when they make an application. This is to be welcomed, but licensing committees will need to ensure that all of these proposed conditions are genuinely necessary; properly worded so that they are enforceable; and are achievable. These conditions can also be modified or new conditions added.”

In the section about hearings and what to expect there is a reminder to the councillors who will be hearing the application under the heading Member conduct:

“Members must, at all times, comply with the council’s member code of conduct which should set out the standards that members must observe and include:

  • treat others with respect
  • do not bully or intimidate anyone
  • do not compromise the impartiality of an officer
  • give reasons for all decisions
  • the ‘prejudicial interest’ concept.

A prejudicial interest is ‘one which a member of the public, with knowledge of the relevant facts, would reasonably regard as so significant that it is likely to prejudice your judgement of the public interest’. Appearance of bias While third party lobbying of elected members is legitimate and councillors may make representations to the licensing committee on behalf of other persons, it is crucial for the licensing authority and its committee to ensure that there is neither actual nor an appearance of bias in its decision-making. It should also be remembered that concerns about political lobbying were the basis of the concerns which led to the first Nolan Committee on Standards in Public Life.

Section 25 of the Localism Act 2011 does not prevent councillors from publicly expressing a view about an issue or giving the appearance of having a closed mind towards an issue on which they are to adjudicate. However it is recommended that to avoid an appearance of bias the following advice should be observed.

  • No member sitting on the licensing subcommittee can represent one of the interested parties or the applicant. If s/ he wishes to do so s/he must excuse him/herself from membership of the sub-committee which is considering the application. Case law has also established they should not be in the room for the hearing once an interest has been declared.
  • If a member who sits on the licensing sub-committee is approached by persons wishing to lobby him/her as regards the licence application then that member must politely explain that they cannot discuss the matter and refer the lobbyist to his/her ward member or the licensing officer who can explain the process of decision making. If the member who sits on the licensing subcommittee wishes to represent them then s/ he will need to excuse him/herself from the licensing sub-committee.
  • Members who are part of the licensing sub-committee must avoid expressing personal opinions prior to the licensing sub-committee decision. To do so will indicate that the member has made up his/ her mind before hearing all the evidence and that their decision may not be based upon the licensing objectives nor the statement of licensing policy.
  • Members must not pressurise licensing officers to make any particular decisions or recommendations as regards applications.
  • Political group meetings should never be used to decide how any members on the licensing sub-committee should vote. The view of the Local Government Ombudsman is that using political whips in this manner may well amount to findings of maladministration. It may be advisable that the chair of the licensing sub-committee should state, during proceedings, that no member of the sub-committee is bound by any party whip.
  • Councillors must not be members of the licensing sub-committee if they are involved in campaigning about the particular application.
  • Other members (ie those who do not sit on the licensing sub-committee) need to be careful when discussing issues relating to matters which may come before the licensing sub-committee members as this can easily be viewed as bias/pressure and may well open that sub-committee member to accusations of such. While a full prohibition upon discussing such issues with committee members by other members may be impractical and undemocratic, local authorities are advised to produce local guidance for members on how such matters can be dealt with. Such guidance could include a definition of what is viewed as excessive, eg attempting to obtain a commitment as to how the member might vote.
  • Councillors must also be aware of the need to declare any pecuniary or non-pecuniary interests in matters that may come before them, whether these relate to policy issues or to specific applications.
  • Member behaviour is also governed by the code of conduct which members should have regard to, and most authorities also have a member/officer protocol which governs how members and officers should interact and the differences in their roles and responsibilities.
  • Members should consult their monitoring officers for further advice where necessary. A well-defined policy and comprehensive scheme of delegation to officers can go a long way to avoiding many of these pitfalls, although, of course, members must retain full oversight of how the scheme is working. There are no rules preventing councillors from sitting on applications within their own wards, although some authorities adopt their own rules to avoid this. Members may make representations about applications, make representations on behalf of others, or appear at a hearing if asked to do so by another person who has made a representation (subject to the rules above).”

All in all there is some really interesting stuff in this document and we wait to see if it is referred to in hearings.

Yes, we know it’s only October, but now really is the time to start thinking about whether you need to give any Temporary Event Notices (TENs) for the festive period.

First, you’re going to want to have a think about what you want to do this year. What type of events will you be running? How will they differ from the norm? Will you be offering anything e.g. Live Music, that you don’t normally offer?

After that, have a look at your Premises Licence. Does it have the hours and licensable activities you need for what you want to do?

Next, you’ll want to have a look at whether your Premises Licence has any non-standard timings that would cover you in any event. These are usually to be found underneath the standard timings for licensable activities but can and do get shifted all over the place.

Finally, it is worth checking the conditions of your Premises Licence to make sure any additional permissions haven’t been squirrelled away there instead.

If nothing is jumping out at you then you may need to give a TEN or TENs.

But we haven’t even had Halloween yet, we hear you cry! We understand but when it comes to TENs for the festive period, and in particular for New Year’s Eve, the sooner really is the better. It may be an apocryphal tale but we heard tell of a Police Licensing Team that was instructed to object to all TENs received in late November/early December on the basis that there weren’t enough police! Lots of hearings ensued and it was an awful mess.

Licensing Authorities, their Environmental Health Teams and the local Police Licensing Teams are inundated with TEN application forms (the application, not the number) in December so why not get ahead of the curve? There are time limits for how late you can give a TEN but tellingly no limit on how far in advance you can give them.

If all this sounds a bit like hard work (and given the length of the form we fully understand you feeling that way) then please do not hesitate to get in touch with your usual Woods Whur contact and he or she will make sure you’re covered. We’ve got your back, meaning you’re free to enjoy the rest of the autumn knowing everything’s taken care of.

I could have written this article about the Rugby World Cup 2019 that takes place in Japan from the 20th of September until the 2nd of November but actually, I think the principles have wider application than just one tournament taking place in the Far East.

Why am I writing this you ask? Well, because there are three certainties in life – death, taxes and that, without fail, someone will phone me up on the first day of a major tournament asking for help in order to show the games and provide Licensable Activities whilst doing so.

Major sporting events, be that the Fifa World Cup, the Olympics or the Ashes are planned years in advance and if the sporting bodies (who tend to lurch from scandal to scandal) can have the foresight to plan ahead, why shouldn’t Premises Licence Holders?

Particular issues arise where events are held in countries where the time difference is such that games are shown at times that are incompatible with most Premises Licences. The Rugby World Cup is an excellent illustration of this. Pool games kick-off times range between 12:15pm and 19:45pm local time, that’s 4:15am (if you really want to watch Namibia vs. Canada) to 11:45am. The Rugby World Cup Final kick-off is at 18:00 local time which is 09:00am here. Not many Premises benefit from a Premises Licence that authorises Licensable Activities from 04:15 onwards though some might be lucky enough to be winding up about that time.

One thing is certain. People are going to want to watch the games and people will adjust their schedules and their behaviours in order to watch their national teams – the lengths people will go to in order to watch live sport never cease to amaze me. My dear old Dad, for example, will get up in the middle of the night to watch the Australian Grand Prix. Not just the race either, the man will also get up and watch all the practice sessions and the qualifying! Lunacy, in my view, because at the point I’m usually in bed dreaming about obtaining 24 hour Premises Licences with no conditions or Summary Review applications being dismissed with no action taken at all but he’ll do it – year in, year out.

So, what can you do in order to bring sport to the masses and, I hope, turn a healthy profit in the process? First and foremost – CHECK YOUR PREMISES LICENCE – you may discover that, actually, you need do nothing at all but assuming that’s not the case and action is required there are a number of options.

Temporary Event Notices or TENs

You could give (apply for) a TEN in order to provide Licensable Activities outside the hours of your Premises Licence to, effectively, “bridge the gap” between your Authorisation and the event timings.

On the face of it, TENs seem like a good idea and if you only plan to show selected fixtures then they may be the way forwards. Problems arise however, due to the restrictions on the number of TENs that can be given per annum at a given premises (15 TENs covering no more than 21 days).

You wouldn’t for example, be able to show all the fixtures of the Rugby World Cup 2019 on TENs alone.

One advantage of TENs is that you can give the notices up until quite late in the day (5 clear working days before the event for a Late TEN and 10 clear working days for a TEN) so if you’ve missed the boat on the other options below, never fear.


Another option is to apply to vary your existing Premises Licence to take into account additional hours needed for the Major Sporting Event. You would need to go through the formal application process of making an application to the Licensing Authority, advertising the application on site and in a local newspaper and serving a copy of the application on the Responsible Authorities (unless you apply online).

One problem with this approach is that the Responsible Authorities (and Other Persons for that matter) might not be terrifically keen on you increasing your hours in perpetuity. A way around that might be to apply for “non-standard timings” specifically for Major Sporting Events. Your application would need to be very clear what you are applying for and when and so it might be worth having a Licensing Solicitor (hint, hint, hintity, hint, hint) have a look at the application for you to make sure you’re not making things worse for yourself.

Another potential pitfall of this approach is that some Licensing Authorities take the approach, on a variation, that they can have a look at other aspects of the Premises Licence too so if your beer garden or smokers are creating a racket then you might be taking on more than you bargained for!

Premises Licence Application

Alternatively, you could apply for a whole new Premises Licence. Why on earth would you do that I hear you ask? Well, first and foremost it protects your existing permission from interference from the powers that be. If you don’t get what you want or you end up with onerous conditions you simply bin the licence and carry on with your existing Premises Licence. Second, the costs, timescales and requirements for a Premises Licence application are identical to those for a variation so you would not be placing yourself at a disadvantage time-wise. Third, Licensing Authorities will generally accept a Premises Licence application that is “traded off” against the surrender of your existing Premises Licence and will often view the application differently than an outright new Premises Licence application.

The problem though is this – you may have an old licence, perhaps even one that came with you on conversion in 2005 and should therefore be coveted and looked after carefully. The Licensing Act 2003 is now 14 years old and, like a stroppy teenager, Licensing Authorities are starting to get wise to the ways of the world. Statements of Licensing Policy (which every Licensing Authority must have) are becoming more sophisticated and more tailored to suit the kinds of environments councils want to push. It may come as a surprise to you but, in policy terms, your pub or bar may no longer be flavour of the month so any application should be approached with a degree of caution and with sound advice (I’m hoping the first hint was enough, but you never know).

I’ve probably made all these options sound terrible but there is a correct answer, in my view, and that is an application for a time-limited Premises Licence.

Time limited Premises Licences are usually the province of festivals and outdoor events where the applicant will apply to provide Licensable Activities between X and Y and only between X and Y. But if the Fifa World Cup is a “festival of football” why should that approach not work equally for bricks and mortar operators? Think about it – you make your application for a time-limited Premises Licence, it has Major Sporting Event all over it and the timings marry up perfectly with the fixtures. You propose appropriate and proportionate conditions to promote the four Licensing Objectives for the duration of the Premises Licence. You risk assess the different hours and have that in your back pocket just in case questions are asked. Starting to look like an attractive proposition both for operators and for Licensing Authorities no? Remember, there can be more than one Authorisation (Premises Licence) in place at any given Premises or part thereof.

So if it was my money, my Premises that’s how I’d do it. A time-limited Premises Licence set up specifically for the purpose of a Major Sporting Event.

There are, of course, a whole host of other things you’re going to want to think about in terms of providing Licensable Activities during Major Sporting Events but hey, I’m a solicitor not a charity so if you’d like to know more please get in touch.

I have had a rush of non-compliance with conditions cases recently which can have very serious ramifications. If you are an operator and have a condition(s) on your licence which you feel is no longer relevant, it is overly restrictive and therefore disproportionate/inappropriate to promote the licensing objectives–you can’t just arbitrarily decide not to comply with it. Some of these non-compliance issues have led to interviews under caution and there is then potential prosecutions to come.

All conditions on premises licences have to be complied with. Non-compliance can have significant consequences. It can lead to you having a poor relationship with the Responsible Authorities, could lead to a review of your premises licence and/or lead to a prosecution under S136 of the Licensing Act 2003. I have 3 cases on at the moment where we are looking to have licences extended and relatively minor non-compliance with conditions could frustrate the applications being viewed favourably. I have also had a couple of reviews where non-compliance with conditions has been added in to bolster the application for review.

The most serious position is that of a potential prosecution.

S136 states:

Unauthorised licensable activities

(1) A person commits an offence if—

(a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or

(b) he knowingly allows a licensable activity to be so carried on.

The potential sanctions are significant, being a term of imprisonment not exceeding 6 months and/or an unlimited fine.

Put simply, do not take the risk. If there is a condition on your licence you MUST comply with it. If you want to have the condition removed then speak to the licensing officer from the Authority and the relevant Responsible Authority officer. If it is a crime and disorder condition then speak to the police, if it is a public nuisance condition then speak to the Environmental protection officer. The condition may be old and no longer relevant, if so the authorities maybe amenable to the condition being removed by the simplified process of a minor variation.

You may have to go to a full variation application in which case we can prepare fully to explain to the licensing committee why the condition should be removed from the licence, you cant just not comply and run the risk of enforcement.

The S82 Guidance document issued by the Home office is very helpful when looking at conditions.

The link below takes you to the current edition:

The most relevant paragraphs are:

Licence conditions – general principles

Conditions on a premises licence or club premises certificate are important in setting the parameters within which premises can lawfully operate. The use of wording such as“must”, “shall” and “will” is encouraged. Licence conditions:

  • must be appropriate for the promotion of the licensing objectives;
  • must be precise and enforceable;
  • must be unambiguous and clear in what they intend to achieve;
  • should not duplicate other statutory requirements or other duties or responsibilities placed on the employer by other legislation;
  • must be tailored to the individual type, location and characteristics of the premises

and events concerned;

  • should not be standardised and may be unlawful when it cannot be demonstrated that they are appropriate for the promotion of the licensing objectives in an individual case;
  • should not replicate offences set out in the 2003 Act or other legislation;
  • should be proportionate, justifiable and be capable of being met;
  • cannot seek to manage the behaviour of customers once they are beyond the direct

management of the licence holder and their staff, but may impact on the behaviour of customers in the immediate vicinity of the premises or as they enter or leave; and

  • should be written in a prescriptive format.

(Para 1.16)

If you have old conditions which do not follow the guidance it is worthwhile bringing it to our attention to see if it is a condition which should be removed or amended. Please do not just think that it isn’t relevant anymore therefore I wont comply with it. Act first and look to remove rather than run the risk of prosecution.

Presentation 1 – Fire safety – Post Grenfell  

Presentation 2 – Entertainment / Alcohol Licensing – What’s new?

Presentation 3 – Coroner’s inquests – what’s in it for me?

Presentation 4 – Sentencing and what does it really mean?

Presentation 5 – Regulatory smorgasbord  – topical round up of cases, developments and issues to watch out for

Presentation 6 –  Insurers – what can they make you and what can they not make you do?!

Woods Whur’s Regulatory Team would like to invite you to its latest regulatory seminar on 25 September 2019 from 9:00am until 12 noon at Gateshead College’s impressive seminar space.

Woods Whur’s niche specialist regulatory lawyers will be delivering a topical round up on a variety of regulatory matters from food, fire, health & safety to environmental, coronial law and entertainment licensing. We do hope that you can join us for what promises to be a useful series of presentations on the ever changing world of regulatory compliance, investigation and enforcement.

The speakers will be James Thompson, the Head of Regulatory Department, who has over 20 years’ experience acting for clients, subject to regulatory investigation and prosecution.  He also has many years’ experience from the police service.  James also sits as a Coroner for County Durham.

Along with James, Andy Woods will also be speaking. Andy is a nationally acknowledged expert in licensing & gaming law will be speaking on topical issues affecting those operating in that sector. Andy has specialised in licensing for over 25 years and has higher rights of audience which allows him to represent his clients in all UK courts concerned with any proceedings. Andy has received commendations for his skill in running large projects in the betting and gaming sector. He acts for international, national and individual operators concerned with both alcohol and gambling licensing.

Sarah Frow from within the Regulatory team will also be speaking alongside James and Andy. Sarah is a regulatory and licensing lawyer and assists business clients facing investigations and prosecutions by the police, the Health and Safety Executive, the Care Quality Commission, the Gambling Commission, Food Standards Agency and other regulatory bodies. As well as criminal proceedings, Sarah advises clients regarding inquests and public inquiries.

If you can join us, please contact Sarah Griffiths, our Seminar Co-Ordinator, on who can confirm your place/places and send you joining instructions.

We look forward to seeing you on 25 September 2019.
Woods Whur

The Health and Safety Executive (HSE) have recently announced that they have increased the fee they charge to investigate and advise on health and safety matters. James and Sarah consider the implications of this.

 Fee For Intervention (FFI) was established by the HSE to recover some of the costs incurred by them in identifying breaches by persons or organisations (‘dutyholders’) and assisting in putting them right.

Previously, the FFI hourly rate was £129 which has now been increased to £154, a 19% increase. The increase came into force from 6 April 2019.

Under this scheme, the HSE will recover costs from non-compliant dutyholders when a breach has been identified and needs to be rectified.

The scheme previously saw a slight increase in 2016 from £124 per hour to £129, however, we now see a much higher increase as a result of, according to the HSE, inflation and recovering its costs in completing this regulatory function. The reality is the HSE are now seeing the revenue from FFI as a means to bolster its reduced budget.

It’s worth reviewing ‘when an inspector calls’, a leaflet that can be found on the HSE website,, to ensure everything is in order to prevent the service of a FFI notice. Otherwise it can be an expensive visit!

Whilst to charge you a FFI a material breach has to be discovered, the reality is an inspector can, and often does, find some issues when inspecting premises or activities. The bill you ultimately can be facing may be very costly, running into the thousands.

There is a challenge/appeal procedure but as is often the case prevention is better than cure!

James and Sarah consider two recent Court of Appeal Hearings and its significance following National Asbestos Awareness Week.


Two recent Appeal court hearings have reduced the fines imposed on the defendants for different reasons. Would you benefit from the courts stance?


In the first case, a company, London NPS, argued that they should have been treated as a small organisation rather than a large organisation under the Sentencing Guidelines. This would have a direct effect on the fine imposed on them. The Sentencing Guidelines are used by the courts to determine the suitable sentence passed on a defendant. The Court of Appeal ruled in the Appellant’s favour on the basis that each incorporated company is a separate legal entity. This is significant and useful to know when an organisation is operating in a group structure. It shows that the courts will treat the offender as the company that was guilty of the act. The fine was reduced from £370,000 to £50,000 as a result of this. This is not just applicable to asbestos matters, but also health and safety matters as the same considerations apply to company sizes. Smaller companies with larger groups of companies may be protected from paying for subsidiary company’s mistakes.

The second appeal concerned the court’s determination of the level of the “likelihood of harm” in a case appealed by the Squibb Group, again this relates to the Sentencing Guidelines. The court criticised the Judge that sentenced the matter for failing to explain why he had disregarded scientific evidence submitted at the trial by the defendant. The court commented that long term risks of this nature are inheritably difficult to assess and quantify and any estimate must be subject to a wide margin of error. The court went on to say that this is not a reason to reject or disregard whatever scientific evidence is available and a rational approach for a Court to adopt these circumstances is to rely on the best evidence that it has. The court reduced the fine from the likelihood of harm from medium to low and reduced the original £400,000 fine to £190,000. The guidelines set out the seriousness of the offence by considering a number of factors, including harm. The significance of this case is relevant for any business that has had work done and/or obtained reports in respect of asbestos, or indeed other issues, as these assist in cases such as this. As with most things, preparation is the key here and by keeping reports and other documents they could assist many years in the future.

Although asbestos was banned in 1999, it is still present in at least half a million buildings constructed before this time. It is important that companies are aware of their responsibility to manage exposure to asbestos whether it’s by creating an asbestos survey, regularly reviewing any work that is done to a property, and sharing information with those affected by their use/role in the building.

If you are concerned or not sure whether you are responsible for managing asbestos exposure and to what extent in relation to your legal obligations then please contact James or Sarah to discuss.

B&Q have pleaded guilty to two charges under the Health and Safety at Work etc Act following an incident at their Kidderminster store which resulted in a pole from a promotional display falling on a customer, causing serious head injuries.

The court fined B&Q £300,000 and ordered it to pay costs of £8,000.  The court heard that B&Q had failed to examine the display as part of daily checks at the store, which would have shown that retainer clips had not been fitted, which meant the signage was not secured.

It’s clear from this case the importance of checking your premises regularly, particularly those temporary structures that may be marketing/advertising displays.

Although the fine appears large enough, B&Q managed to reduce the potential fine by quickly taking action following the accident; this included removing all of the display banner poles to ensure that a similar incident would not occur. In addition it pleaded guilty to the offences which allowed a reduction in the overall fine handed down by the court by up to a third. If not for these prompt actions the fine would have been much higher.

The lesson from this case is any change within a business should be assessed for risks by way of risk assessment and regularly reviewed. Temporary changes to your premises or operations which last for one day or for a couple of weeks still need the same level of scrutiny as long established fixtures and processes. Whilst in this case the source of the accident was an incorrectly constructed advertising display, how many short term measures do you introduce to your business each year and how carefully do you check their health and safety impact of doing so?

James and Sarah consider the Sentencing Council’s report published this month into the Health and Safety sentencing.

The sentencing guidelines are used in courts to promote greater consistency in sentencing for health and safety offences. The guidelines came into force in February 2016. The Sentencing Council have now prepared a report into the effectiveness of the guidelines.

As anticipated, fines have increased overall for organisations after the guidelines came into force. In particular, fines have seen a considerable increase for larger organisations, those that have an annual turnover of £50 million and over. The report states that in the 10 months prior to the sentencing guidelines being in place, the median fine amount was £12,000. In the 10 months after the sentencing guidelines were published, the median fine amount increased to £60,000. That’s an increase of 400%! Fine amounts increased for all sizes of organisations, although the Sentencing Council have commented that they did not anticipate fines to rise for individuals – they have!

Mitigating and aggravating factors in the context of sentencing are those circumstances which may reduce(mitigating) or increase (aggravating) the sentence accordingly. Interestingly, the report states that mitigating factors were cited much more frequently than aggravating factors (90 percent of cases compared with 50 percent, respectively). On average, around two mitigating factors were cited in the report considered. This contrasts with aggravating factors where, on average, less than one aggravating factor was cited in each case. The most common aggravating factors cited were ‘previous convictions’ and ‘cost-cutting at the expense of safety’. We cannot stress the robust stance courts take when ‘cost cutting’ is demonstrated as a factor in the offence.

So what should we take from this? Clearly fines are increasing. The most stark difference is that of fines given to any organisation regardless of size are now routinely significant and in some cases terminal for the viability of that business.

The likes of Poundstretcher, Tata Steel, Tesco, and Stagecoach have all been handed fines of £1 million or more after breaching health and safety law in the last year. The £1 million fine is becoming the new ‘norm’ in the health and safety arena.