seekingcounsel THE RIGHT SIDE OF THE LAW

CALL NOW: 07733 264226

New website being developed for permitted waste fi rms under fi re

WASTE regulator DOMINIC McNABB is an experienced solicitor in private practice with MJP solicitors.

He has more than 20 years of

experience defending both individuals and companies, in both criminal and regulatory legal-related matters.

I am a lawyer who has represented individuals and companies in respect of various regulatory off ences from waste crime, health and safety, transport law and food hygiene off ences. My specialism in criminal defence work has been helpful in understanding the issues, defences and mitigation which are required for both the individual director and the company.

Most of the off ences now prosecuted have regard to the Sentencing Guidance and it can be a useful starting point for that to be considered at the investigation stage.

However, one of the essential points to be considered is when a company or individual has become the target of a likely prosecution. In the ordinary course of events with a police involvement, the following must be obvious: the warrant or the reason for arrest is quite clear and the provisions from the Police and Criminal Evidence (PACE) Act 1984 apply including the right to speak to a solicitor and seek legal advice.

The problem with regulatory matters can be that the individual does not appreciate when an investigation or enquiry by the regulator will result in enforcement action – a criminal conviction ordinarily.

Courts and costs There are also simple concerns for those

44 SHWM February, 2019

being visited by an Environment Agency (EA) Offi cer in the course of operating a permitted site. These are accepted as part of the permitting process but any adverse fi ndings or observations can become an exhibit in any subsequent prosecution.

Most SMEs cannot aff ord an in-house lawyer to consider this type of enquiry

One example is CAR where the months preceding an incident such as a fi re will be exhibited to show that advice was given but ignored, making the case to defend even harder as the individual or company have not responded appropriately.

This includes: ● the request to provide information

under PACE’s Regulation 66 and the prospect of the evidence being requested being used to form the basis of a prosecution;

● the sanctions which the EA are required to consider as part of their enforcement policy and guidance.

All of these standard enquiries can give rise to a prosecution with unlimited fi nes now being an option.

Most SMEs cannot aff ord an in-house lawyer to consider this type of enquiry. So, I am assisting to build a website, which will be launching soon, which will be (hopefully) designed to be of use to individuals seeking advice.

That advice can be tailor-made to the individual and has the specifi c protection of legal privilege, so that a lawyer can then become involved to assist in a timely way, providing every SME with aff ordable access to legal specialists who are proactive and interested.

More details of the website will soon be available.

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