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INTERNATIONAL MARINE CLAIMS CONFERENCE

Dublin

27 October 2005

INTERNATIONAL MARINE CLAIMS CONFERENCE

Dublin

27 October 2005

Tim Taylor

Barlow Lyde & Gilbert

Tim Taylor

Barlow Lyde & Gilbert

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The Right to Remain SilentThe Right to Remain Silent

Fact or Fiction?Fact or Fiction?

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Fifth Amendment 1781Fifth Amendment 1781

No person …………………shall be compelled in any criminal case to be a witness against himself

No person …………………shall be compelled in any criminal case to be a witness against himself

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The Miranda WarningThe Miranda Warning

You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements.

You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements.

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EnglandEngland

nemo tenetur seipsum accusare

'no man is bound to accuse himself‘

Judges Rules 1912

Before then police could pressurise suspects to obtain confessions

Police & Criminal Evidence Act 1984 Section 78

nemo tenetur seipsum accusare

'no man is bound to accuse himself‘

Judges Rules 1912

Before then police could pressurise suspects to obtain confessions

Police & Criminal Evidence Act 1984 Section 78

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Criminal Justice & Public Order Act 1994Criminal Justice & Public Order Act 1994

Changed the caution

Adverse inferences can be drawn from silence

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

Changed the caution

Adverse inferences can be drawn from silence

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

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Merchant Shipping Act 1995 Section 259

Merchant Shipping Act 1995 Section 259

An inspector

may require any person who he has reasonable cause to believe is able to give any information relevant to any examination or investigation

 (i) to attend at a place and time specified by the inspector, and

 (ii) to answer (in the absence of persons other than any persons whom the inspector may allow to be present and a person nominated to be present by the person on whom the requirement is imposed) such questions as the inspector thinks fit to ask, and

 (iii) to sign a declaration of the truth of his answers;

An inspector

may require any person who he has reasonable cause to believe is able to give any information relevant to any examination or investigation

 (i) to attend at a place and time specified by the inspector, and

 (ii) to answer (in the absence of persons other than any persons whom the inspector may allow to be present and a person nominated to be present by the person on whom the requirement is imposed) such questions as the inspector thinks fit to ask, and

 (iii) to sign a declaration of the truth of his answers;

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Self Incrimination?Self Incrimination?

Human Rights Convention

How about Article 6

No help at all

R v Hertfordshire County Council ex parte Green [2000]

Human Rights Convention

How about Article 6

No help at all

R v Hertfordshire County Council ex parte Green [2000]

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And if he RefusesAnd if he Refuses

260.—(1) A person who—

 (a) intentionally obstructs an inspector in the exercise of any power available to him under section 259; or

(b) without reasonable excuse, does not comply with a requirement imposed in pursuance of section 259 or prevents another person from complying with such a requirement;

shall be liable—

 on conviction on indictment, to imprisonment for a term not exceeding two years, or an [unlimited] fine or both

260.—(1) A person who—

 (a) intentionally obstructs an inspector in the exercise of any power available to him under section 259; or

(b) without reasonable excuse, does not comply with a requirement imposed in pursuance of section 259 or prevents another person from complying with such a requirement;

shall be liable—

 on conviction on indictment, to imprisonment for a term not exceeding two years, or an [unlimited] fine or both

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Other PowersOther Powers

Search and inspection of any ship or premises

Production of documents, crew lists and logs

Samples

Seize computer hard drives

Search and inspection of any ship or premises

Production of documents, crew lists and logs

Samples

Seize computer hard drives

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HelpHelp

Section 259 (12) 

No answer given by a person in pursuance of a requirement imposed ……………. shall be admissible in evidence against that person or the husband or wife of that person in any proceedings

Section 259 (12) 

No answer given by a person in pursuance of a requirement imposed ……………. shall be admissible in evidence against that person or the husband or wife of that person in any proceedings

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The Merchant Shipping (Accident Reporting andInvestigation) Regulations 2005

The Merchant Shipping (Accident Reporting andInvestigation) Regulations 2005

In force 18 April 2005

Positive duty to report accidents

Changes

A legal adviser can attend the interview but must be acting solely for the witness

In force 18 April 2005

Positive duty to report accidents

Changes

A legal adviser can attend the interview but must be acting solely for the witness

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Practical Problems Following CasualtiesPractical Problems Following Casualties

Conflicts between owners and crew

The same lawyers cannot properly look after the crew

Risk of “cut throat defence”

“It wasn’t me guv, it was him”

Statutory protection illusory

Questions for marine liability insurers

How far are you prepared to go to assist seafarers?

How far should you go?

Conflicts between owners and crew

The same lawyers cannot properly look after the crew

Risk of “cut throat defence”

“It wasn’t me guv, it was him”

Statutory protection illusory

Questions for marine liability insurers

How far are you prepared to go to assist seafarers?

How far should you go?

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Insurance IssuesInsurance Issues

Increased criminalisation

Arrests all over the world

Corporate Killing

Focus on Coverage

Increased criminalisation

Arrests all over the world

Corporate Killing

Focus on Coverage

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Does Insurance Cover Criminal Activity?Does Insurance Cover Criminal Activity?

“Of course not”

Public policy issues

P & I Clubs do provide pollution cover

Chief Constables can insure for vicarious liability (Lancashire CC v Municipal Mutual 1996)

“Of course not”

Public policy issues

P & I Clubs do provide pollution cover

Chief Constables can insure for vicarious liability (Lancashire CC v Municipal Mutual 1996)

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What if the offence involves the directing mind What if the offence involves the directing mind

Lack of fortuity

Assured engages in conduct where he knows or takes a calculated risk as to whether it is legal

Developing area of law

Lack of fortuity

Assured engages in conduct where he knows or takes a calculated risk as to whether it is legal

Developing area of law

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Regulation of InsuranceRegulation of Insurance

Insurance Industry in UK now regulated

By the FSA since January 2005

What this means is that senior executives are held accountable for the effective and responsible running of their firms

Insurance Industry in UK now regulated

By the FSA since January 2005

What this means is that senior executives are held accountable for the effective and responsible running of their firms

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Senior Management Responsibilities Senior Management Responsibilities

The Principles of Business

Approved Persons Regime

Apportionment & Oversight

Systems and Controls

The Principles of Business

Approved Persons Regime

Apportionment & Oversight

Systems and Controls

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Senior Manager BehaviourSenior Manager Behaviour

Exercise due skill, care and diligence

Take reasonable steps to ensure business of firm complies with the requirements of the regulatory system

Monitoring and reporting lines

Paper trails

Exercise due skill, care and diligence

Take reasonable steps to ensure business of firm complies with the requirements of the regulatory system

Monitoring and reporting lines

Paper trails

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PenaltiesPenalties

Culture of owning up

Identify the problem and tell FSA what is being done

Fines

Removal of approval/loss of livelihood

Culture of owning up

Identify the problem and tell FSA what is being done

Fines

Removal of approval/loss of livelihood

Failing What the FSA said Consequences

Misrepresenting transactions company accounts; failure of directors to act with honesty and integrity.

"All of these individuals abused their positions and as such they are not fit and proper to work again in . senior positions in the UK insurance market. Nobody should doubt our resolve to deal with any similar instances in the most robust manner available to us."

Former directors prohibited from performing any management function.

Compliance failings; policies, procedures and their monitoring found to be inadequate and incomplete.

"If a compliance department is to be fully effective, it needs to keep up to date with the regulatory requirements and market developments."

Corporate fine (£100,000s).

Failure to inform FSA of material issue.

"The FSA sets high standards by which we judge senior management. This includes the requirement that individuals deal with the FSA in an open and co-operative way. Where behavior falls below our high standards we will take the necessary action to make sure customers are protected and markets properly informed."

Individual fine (£10,000s) and prohibited.

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What Does this Mean?What Does this Mean?

Companies have a duty to be open with the FSA

Individuals have a duty to be open with the FSA

Culture of confessing sins

Good reason

It reduces fines

Halts even closer examination

What about individuals?

Companies have a duty to be open with the FSA

Individuals have a duty to be open with the FSA

Culture of confessing sins

Good reason

It reduces fines

Halts even closer examination

What about individuals?

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DangersDangers

Potential for huge conflict with between employer and employee

How can employee get separate advice?

Who will pay for it?

Potential for huge conflict with between employer and employee

How can employee get separate advice?

Who will pay for it?

FSA suspects face arrest

The Financial Services Authority (FSA), the UK's stock market watchdog, is to use its power to have those suspected of criminal market abuse arrested.

Under an agreement reached last week, the City of London police - responsible for law enforcement in the capital's financial district - will, at the FSA's request, detain individuals suspected of criminal offences.

Although the FSA was given the power to have suspects detained under the 2000 Financial Services and Markets Act, the watchdog has until now made no attempt to exercise it.

The FSA's new hardline approach is designed to make its investigations into cases of fraud and market abuse more effective.

It comes in response to a decline in the number of individuals agreeing to be interviewed voluntarily. "In the absence of a voluntary interview, we can now have people arrested and questioned," an FSA spokeswoman said

FSA suspects face arrest

The Financial Services Authority (FSA), the UK's stock market watchdog, is to use its power to have those suspected of criminal market abuse arrested.

Under an agreement reached last week, the City of London police - responsible for law enforcement in the capital's financial district - will, at the FSA's request, detain individuals suspected of criminal offences.

Although the FSA was given the power to have suspects detained under the 2000 Financial Services and Markets Act, the watchdog has until now made no attempt to exercise it.

The FSA's new hardline approach is designed to make its investigations into cases of fraud and market abuse more effective.

It comes in response to a decline in the number of individuals agreeing to be interviewed voluntarily. "In the absence of a voluntary interview, we can now have people arrested and questioned," an FSA spokeswoman said

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Questions for You?Questions for You?

Am I aware of the risks of being caught up in an inquiry?

Who can I count on for support?

Who will pay the fees?

Can I access the Directors’ and Officers Policy?

Is there really a right to remain silent anymore?

Am I aware of the risks of being caught up in an inquiry?

Who can I count on for support?

Who will pay the fees?

Can I access the Directors’ and Officers Policy?

Is there really a right to remain silent anymore?