Health and Safety and Criminal Law – An Overview

Health and Safety at Work Act

The Health and Safety at Work Act is still the main health and safety legislation in the UK. It is an Act of Parliament (primary legislation) that prescribes general duties to all at work, regardless of the work activity or context. Failure to comply with a duty under the Act is a criminal offence which may be punished by fine or imprisonment.

Regulations

Section 15 of the Health and Safety at Work Act enables the relevant Secretary of State to make health and safety regulations. Regulations (statutory instruments / secondary legislation) are usually:

• more detailed than the general duties of HASAWA
• problem specific (e.g. noise, hazardous substances)
• prompted by European Directives
• intended to protect employees at work

Failure to comply with a Regulation is a criminal offence which may be punished by fine or imprisonment or warrant the service of an Improvement notice to obtain compliance.

The Management of Health and Safety at Work Regulations are an example of health and safety regulations.

Approved Code of Practice (ACoP)

An Approved Code of Practice (ACoP) gives practical advice on how to comply with the law.

If the advice in the ACoP is followed compliance with the law is assured in respect of those specific matters on which the ACoP gives advice.

The ACoP has special legal (or quasi-legal) status. In a prosecution for a breach of health and safety law, if it is proved that a relevant provision of the Code was not followed, compliance with the law in some other way must be proved.

The Workplace (Health, Safety and Welfare) Regulations; and the Provision and Use of Work Equipment Regulations (PUWER) are both supported by Approved Codes of Practice

Guidance

Following guidance is not compulsory and other action may be taken. Following guidance will normally be enough to demonstrate compliance with the law.

Health and safety inspectors are likely to refer to guidance as an illustration of good practice.

The Health and Safety (Display Screen Equipment) Regulations; and the Manual Handling Operations Regulations are both supported by guidance documents.

Levels of statutory duty

Duties in health and safety law may be absolute (i.e. must be done) or may be qualified. The two major qualifications of health and safety law are those imposed by the phrases ‘practicable’ and ‘reasonably practicable’.

Absolute duties

Usually preceded by the word ‘shall’ an absolute duty must be complied with. The employer has absolute duties to prepare a safety policy and to undertake risk assessments.

Practicable

If a duty applies so far as is ‘practicable’ it is a less onerous duty than an absolute one. Practicable means feasible in the light of current knowledge and invention, i.e. if it can be done it must be done.

Reasonably practicable

Reasonably practicable requires the degree of risk (likelihood x severity) of a particular activity or environment to be balanced against the costs (time, trouble and physical difficulty) of taking measures to avoid the risk.

The greater the risk, the more likely it is that it will be reasonable to go to very substantial expense, trouble and invention to reduce it.

If the consequences and the extent of a risk are small, the same substantial expense would be considered disproportionate to the risk and it would be unreasonable to have to incur them to address a small risk.

The size and financial position of the employer are not taken into account in consideration of what is ‘reasonably practicable’.

Enforcement of health and safety

The enforcement of health and safety depends upon the main activity undertaken at a place of work.

The HSE typically enforces at higher risk workplaces such as construction sites and factories.

Local Authorities (Usually Environmental Health Officers – EHO’s) enforce at lower risk premises such as retailers, offices and warehousing.

Inspectors have a range of enforcement options and tools available including:

• Informal advice
• Improvement Notice
• Prohibition Notice
• Prosecution

The best option(s) will be chosen in each case. There is no hierarchical escalation route from informal advice to prosecution.

Simple Cautions

A simple caution is a means for dealing with low-level, mainly first time offending when specified public interest and eligibility criteria are met.

A simple caution is appropriate where:

• the offender makes a clear and reliable admission of the offence
• there is a realistic prospect of conviction if the offender were to be prosecuted
• the offender agrees to receive the simple caution

A repetition of a breach that was the subject of a simple caution will normally be treated in the same way as a failure to comply with an Enforcement Notice, i.e. with criminal proceedings.

Simple cautions are recorded and can be brought to the attention of the court where relevant to any subsequent offending.

Improvement Notice

An improvement notice may be served whenever health and safety legislation is being contravened. An improvement notice will specify the breach of legislation and may specify a means of complying. It has to allow a reasonable time (minimum 21 days) to complete any specified works.

Any appeal against an improvement notice must be made to the Employment Tribunal with 21 days of the date of service. The requirements of the notice would be suspended until the appeal was heard.

The Employment tribunal may uphold, cancel or vary the improvement notice as a consequence of the appeal.

Prohibition Notice

A prohibition notice may be issued when the inspector considers that there is a risk of serious personal injury. The notice prohibits the carrying on of the work activity giving rise to the risk of injury.

If the risk of injury is imminent, the notice must take immediate effect and stop the work activity at once. If not, the prohibition notice is deferred, specifying the time by which the work activity must cease.

Any appeal against a prohibition notice must be made to the Employment Tribunal with 21 days of the date of service. The notice would stay in effect until the appeal was heard.

Prosecution

Any breach of legislation may give rise to a prosecution in the criminal courts.

A summary offence is typically defined as an offence that has a maximum sentence of 6 months’ imprisonment or of a 5,000 pound fine for any one offence. Thus one can say that this is the lest serious type of criminal offence.

An indictable offence is typically defined as an offence that carries the maximum sentence for said offence. Thus, indictable offences are the most serious type of offence.

Triable either way offences are offences that can be treated as either a summary offence or an indictable offence. Thus, these offences are off mid-level seriousness or are debatable. Health and safety offences are usually ‘triable either way’, this means the case may be heard in a magistrate’s court or a crown court.

The sanctions available to a crown court are greater than in a magistrate’s court. The information below shows the maximum sentences available to each court for breaches of HASAWA and health and safety regulations.

Company directors convicted of health and safety offences, as well as being prosecuted can also be disqualified form being Company Directors.

Fees for Intervention (FFI)

The HSE operates a Fee for Intervention (FFI) cost recovery scheme. Under The Health and Safety (Fees) Regulations 2012, where there has been a ‘material’ breach of health and safety laws those responsible for the breach are liable for recovery of HSE’s related costs, including inspection, investigation and taking enforcement action.

Powers of Health and Safety Inspectors

All authorised health and safety inspectors have the same powers, regardless of the area of enforcement. Inspectors can:

• enter any premises which they think it necessary to enter for the purposes of enforcing health and safety law. The power of entry can be exercised without permission or prior notice, at any reasonable time or at any time if dangerous
• take a police constable with them if they have reasonable cause for thinking they might be seriously obstructed
• take any other person authorised by their enforcing authority, such as a specialist, and any equipment needed
• order that areas be left undisturbed
• take measurements, photographs and samples
• carry out tests on, and/or confiscate articles and substances
• inspect and take copies of relevant documents
• seize any article or substance which they have reasonable cause to believe presents an immediate danger of serious personal injury and have it made harmless, by destruction if necessary
• interview and take written statements from anyone they think might give them information relevant to their examination or investigation

The Corporate Manslaughter and Corporate Homicide Act 2007

Manslaughter by individuals is a ‘common law’ crime. The case of R v Adomako (1994) sets out the current test to prove the offence. An individual commits manslaughter when he causes a death through gross negligence.

The test of whether a “company” could be found guilty of common law manslaughter was intrinsically linked to the ‘identification doctrine’. A director or senior manager (a controlling mind and will) of the company had to be found guilty, for the company to be found guilty.

There were a number of disasters in the 1980’s and 1990’s which lead to failed prosecutions for corporate manslaughter.

The Southall rail crash on 19th September 1997 resulted in 7 deaths and 151 injuries, leading to Great Western Trains (GWT) pleading guilty to contravening Section 3(1) of the Health and Safety at Work Act, and receiving a record fine of £1.5 million.

Mr Justice Scott-Baker expressed his concern regarding “a serious fault of senior management”. However, a charge of manslaughter could not succeed because no individual could be prosecuted and found guilty of gross negligence manslaughter.

The HSE commented that death or personal injury resulting from major disasters was rarely due to the negligence of a single individual but was more likely to be the result of the failure of systems controlling the risk, with the carelessness of individuals being a contributing factor.

After much lobbying to address the shortcomings of prosecutions of corporate bodies under common law the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) was introduced.

Under CMCHA, corporate manslaughter:

• can only be committed by organisations and not by individuals
• requires a breach of the duty of care under the law of negligence
• requires that the breach is a gross breach, i.e. where the conduct of the organisation falls far below what should reasonably be expected
• requires that a substantial element in the breach is the way in which the organisation’s activities are managed or organised by its senior management; and
• is committed only where death is shown to have been caused by the gross breach of duty

The sanctions available to the courts include unlimited fines, publicity orders and remedial orders.

The Sentencing Guidelines for Corporate manslaughter suggests that an appropriate level of fine will seldom be less than £500,000 and may be measured in millions of pounds.

Publicity Orders may require publication in a specified manner of:

• the fact of conviction
• specified particulars of the offence
• the amount of any fine
• the terms of any remedial order

Any specific failings involved in the offence ought to have been remedied by the time of sentencing and if not will deprive the defendant of significant mitigation.

If, the failings have not been addressed a remedial order may be used if it can be made sufficiently specific to be enforceable.

As the remedial order requires only what should already have been done the cost of compliance with the order should not be considered in setting the fine.

Defences to Criminal Charges

The main defence to criminal charges under health and safety legislation is that the particular duty has not been breached. This is a matter of fact for absolute duties but arguable for those duties qualified by terms such as ‘so far as is reasonably practicable’, ‘reasonable’ or ‘practicable.’

Note: the onus of proving that the duty has been fulfilled rests with the accused, not the prosecution.

In some cases, it may be possible for the accused to argue that he is not the duty holder (e.g. employer or a person who has control of premises).