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September 7, 2008

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Prison sentences for health and safety offences

Many are in favour of making prison sentences an option for a wider range of health and safety offences but such a move may well cause more harm than good, argues Michael Appleby.

The Health and Safety (Offences) Bill is making its way through Parliament (see SHP July, News), with its third reading in the House of Lords due on 10 October.

The Bill proposes extending the £20,000 maximum fine in the Magistrates’ Court to a wider range of offences, and providing the courts with the power to imprison for most health and safety offences.

Private Member’s Bills historically rarely succeed. The current Bill is the latest of several attempts since 2000 to increase health and safety penalties, but this time the smart money is on the Bill becoming law. If so, it will be a victory for those who passionately believe health and safety offences are not perceived as ‘real crime’, and that sentences provide an inadequate deterrent to rogue bosses. This may be so, but at what cost?

At present, those offences under the Health and Safety at Work, etc. Act 1974 (HSWA) that are imprisonable require some form of intent, e.g. failing to comply with a Prohibition Notice.

The Robens Report, which led to the HSWA, recommended that criminal sanctions for health and safety breaches be reserved for offences of a “flagrant, wilful or reckless nature”. Such epitaphs, however, did not make their way into the Act.

An individual, whether a worker or manager, can be convicted of breaching section 7 HSWA for failing “to take reasonable care” for their and others’ health and safety, i.e. being criminally negligent.

A director can be convicted under section 37 HSWA if his/her company’s breach was “attributable to any neglect” on their part. In the recent case of R v P Ltd and G [2007] All ER (D) 173 (Jul) (CA), the Court of Appeal held a director could sometimes be guilty of neglect, even if he/she did not know of the unsafe practices of their company. Under the Bill, both would carry a maximum term of up to two years’ imprisonment.

Lord Grocott, moving the Bill in the Lords, said imprisonment would be reserved for “irresponsible behaviour”, giving examples of illegally employing children for the removal of asbestos, and fabricating test certificates for cranes.

The trouble is, the Bill does not make this plain. What needs to be asked is, how many examples exist of such practices, and will a prison sentence really deter a boss who is hell bent on making money from stooping to such conduct?

Looking at the wider implications, the result could be that managers may be reluctant to take on responsibility for health and safety issues, and directors unwilling to be seen as health and safety champions if there is a possibility (however remote) that failure might lead to a spell in prison. In attempting to deal with the despicable few, are we discouraging the vast majority of businesses that are eager to get health and safety right?

But there is a potentially far more fundamental implication. Under the Bill, if an individual as an employer is convicted of breaching sections 2 or 3 of the HSWA, i.e. failing to ensure the health and safety of employees or non-employees, he/she can receive a custodial sentence of up to two years.

In such cases the prosecution only has to prove there has been an exposure to risk, and then it is for the employer, under s40 HSWA, to prove he/she took all reasonably practicable steps to avoid the exposure. This reverse burden of proof can be an uphill struggle.

The case of David Janway Davies v HSE [2003] ICR 586 challenged the lawfulness of s40 HSWA, arguing it breached the European Convention of Human Rights because it made inroads into the presumption of innocence. The Court of Appeal rejected the argument, holding s40 was proportionate and justified. One of the main reasons given was that the offence was not imprisonable.

If prison becomes an option then the Court of Appeal’s decision may not be the same if the issue was considered again. A successful challenge will inevitably have a detrimental effect on the success rate of health and safety prosecutions, in that it will be harder for the HSE to succeed. This would be very much an unintended consequence.


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