08 December 2008
Lucie Ponting

From January 2009, employers and other dutyholders who breach health and safety laws face the prospect of tough new penalties, including higher fines and the possibility of imprisonment for a wider range of offences.

Under the Health and Safety (Offences) Act 2008, which started life as a Private Member's Bill introduced by MP Keith Hill, magistrates will be able to impose higher fines for regulatory breaches, and in both the magistrates' and crown courts individual imprisonment will be an option for more offences. 

According to Lord Grocott, who shepherded the Bill through the Lords, the changes are designed to "punish the criminally negligent who put life and limb in danger in the workplace, to deter those who are tempted to cut costs by breaking the health and safety law, and to render faster and more efficient justice".

"I believe they will do the job," Keith Hill told HSW.

Now more powerful

The Act, which comes into force in Great Britain and Northern Ireland on 16 January 2009, amends Section 33 of the Health and Safety at Work Act 1974 (HSW Act) to:

• raise the maximum fine available in the lower (magistrates') courts for regulatory offences
• make imprisonment an option for more health and safety offences in both the lower and higher courts
• make two offences currently triable only in the lower courts - contravening any requirement imposed by an inspector and preventing a person from appearing before an inspector or from answering their questions - triable in the higher courts as well.

Currently, magistrates can levy a maximum £20,000 fine for breaches of "general duties" under the HSW Act, such as failing to protect employees contrary to Section 2(1) or others under Section 3(1) - the most common charges brought against organisations by the HSE and local authorities.

For breaches of the numerous health and safety regulations made under the HSW Act, such as the ones covering work at height or in confined spaces, and the provision and use of work or lifting equipment, the highest fine the magistrates can impose is £5000.

The new Act raises this ceiling fourfold, to £20,000 in magistrates' courts. Crown courts will continue to have the power to impose unlimited fines for general and regulatory breaches.

Under current law, imprisonment is only available for a very small number of offences, including breaching a Prohibition Notice. The new rules extend this power to most regulatory and general offences, with prison terms of up to 12 months available to magistrates, while crown courts can hand down prison terms of up to two years.

The new penalties

	Offence	Now	From Jan 2009
Magistrates' court	Breaches of general duties under HSW Act	Fine up to £20,000	Fine up to £20,000 and/or up to 12 months' imprisonment
	Breaches of safety regulations	Fine up to £5,000	Fine up to £20,000 and/or up to 12 months' imprisonment
Crown court	Breaches of safety regulations	Fine up to £20,000	Fine up to £20,000 and/or up to 2 years' imprisonment

Jail break

The extended power of imprisonment is probably the aspect of the new legislation that will leap out at most managers.

Keith Hill recognises there has been "some anxiety" about the power to imprison, but says the best estimates are that the new provisions will only raise the number of those imprisoned each year from around three or four to six or eight.

"The truth is that the HSE has very high thresholds before seeking any kind of custodial sentence and these guidelines are on public record," he says.

On top of this are the constraints of the Crown Prosecution Service, as well as sentencing guidelines. "I'm confident," he says, "that there will be no abuse or unreasonable behaviour following this, but it responds to really long-term demands on the part of judges for the availability of custodial sentences for particularly scandalous cases."

Work and pensions minister Lord McKenzie has stressed that health and safety regulators are not changing their prosecution policy on individuals because of the Act. Imprisonment should "be reserved for the most serious matters" he said, "and the expectation is that these matters will generally be concluded in the higher courts."

Jon Cooper, health and safety expert at lawyers Bond Pearce, says "it's sensible that a breach of the regulations should now have the same maximum fine level in a magistrates' court as a breach of a general duty" and sees the Act as a "very clear piece of legislation". He says it is "significant that the courts have the powers to impose custodial sentences for more offences."

But he agrees with the original Bill's promoters that the courts are likely to use this power only sparingly.

Swift justice

One of the Act's aims is to "render faster and more efficient justice". The widespread view is that the low limits on magistrates' sanctions have made them refer more cases up to the higher court, to ensure a punishment that better fits the crime. Referral is costly and slows up the system. The increase in maximum fines is intended to ensure more cases start and finish in the magistrates' hands. But they will need clear guidance in exercising their extended powers.

"Traditionally, magistrates' courts have tended to be somewhat in the dark regarding what to do in these matters, especially when setting a level for the fine. There should be a reissue of magistrates' courts sentencing guidelines in this area," emphasises Stuart Armstrong, senior associate at lawyers McGrigors LLP, "particularly in relation to custodial sentencing."

Hill had already approached the Sentencing Guidelines Council (SGC) about the need to produce up-to-date advice when his Bill became law, and Lord McKenzie wants to see the council update its guidelines "as a matter of urgency". But some legal commentators have suggested that the updated guidelines may lag the Act's entry into force by up to six months. There is still no sign of the SGC's separate guidance on fines for companies convicted for deaths at work, though the consultation exercise ended at the beginning of the year.

An unintended effect of the Act may be that, in retaining more cases in the lower courts, it will deliver less, rather than more, consistency in sentencing, since magistrates have varying levels of competence in judging the seriousness of health and safety breaches.

"While there are inconsistencies in the crown court too," explains Jon Cooper, "in magistrates' courts, it is that much greater."

While keeping more cases in the magistrates' courts should keep down costs and speed up sentencing, some lawyers also believe it may not actually lead to higher safety fines, despite the increased limits.

Commenting earlier this year, Steffan Groch, partner at law firm DWF, said: "There is no cap on the level of penalties which a crown court can set for a health and safety offence. For that reason, the Bill will not have the effect of raising fines. It will simply mean that more cases will be retained by the magistrates, rather than being committed to a crown court."

"Whether those individual defendants now facing imprisonment wish to be heard by the magistrates or elect to be heard in front of a jury remains to be seen," adds Armstrong.

Evasive action

Certain observers have suggested the Act may encourage greater risk aversion among employers.

"Some companies are already introducing measures aimed at making it easier to defend their position, rather than simply taking measures to make it safer to work," says Armstrong. "The change of emphasis from a simple fine to the possibility of individual imprisonment may result in directors and senior managers being much more defensive. You may well see a lot of nervous directors, especially where their health and safety responsibilities are not clearly defined."

While he acknowledges that a custodial penalty is unlikely in most cases, he argues there may be more "conkers bonkers" type risk-limiting decisions as people refuse to take responsibility.

Overall, he argues that the business response to the Act may be to focus on more conservative and collective decision-making to avoid individual liability.
"There may be an increased desire on the part of companies to justify decisions taken collectively, via board minutes for example," he suggests. But the difficult question for anyone responsible for managing safety will still be how to justify exactly what is "reasonably practicable" at any particular time.
Keith Hill has no truck with the view that managers will become more risk-averse, calling it "misplaced".

"The vast majority of health and safety prosecutions are corporate prosecutions and most health and safety offences represent corporate failures; it is rarely an individual who fails," he says.

What he believes the Act will do is to send out the message very clearly to the cowboys, who have cut corners in the past because they didn't expect to face stiff penalties, that they are "not going to make profits by breaking laws".

Open to challenge?

Though the Act aims to increase judicial efficiency, Armstrong is concerned that it may unintentionally place extra burdens on the regulator as prosecutions become more complex, especially those involving individuals.

Under the enforcement management model, inspectors must already investigate whether an individual as well as the company has committed a crime. Now, if individual imprisonment is a possibility, inspectors will have to carry out more detailed investigations and their decision-making processes may come under greater scrutiny from defence lawyers and victims' families, he says.

Another legal worry is that the Offences Act's provisions may affect the "reverse burden of proof" in health and safety cases imposed by Section 40 of the HSW Act, which holds that in the case of a suspected safety breach a dutyholder is assumed to be at fault unless they can prove otherwise (rather than being innocent until proven guilty).

Following an HSE prosecution in 2002, plant hire operator David Janway Davies appealed against his conviction on the grounds that Section 40 was incompatible with Article 6.2 of the European Convention on Human Rights. The Court of Appeal ruled against him, holding that the reverse legal burden of proof in Section 40 was compatible with the convention as it was proportionate and justified.

The government's view is that the widened scope for prison sentences is still reasonable and proportionate, and that Section 40 continues to represent a fair balance between the rights of the individual to a fair trial and protecting life and limb from dangerous work practices.

But Groch at DWF believes the new rules could still face a legal challenge. He says the Court of Appeal in the Janway Davies case decided that the reverse burden of proof "could be justified, in part because health and safety offences were not 'truly criminal' in nature. Given that one of the justifications for this decision has arguably disappeared, I believe that a challenge is inevitable," he says.

"The government's own legal advisers have gone into this matter in great detail," says Hill, and all the indications and advice are that there is no infringement. But he adds that in this and other respects "we will have to see how the legislation pans out and what happens in the courts".

Categories:
Health, Safety, Article, Enforcement (prosecutions), Enforcement (prosecutions)