The Health and Safety (Offences) Act 2008
The Health and Safety (Offences) Act 2008 came into force at the end of January. This is a significant measure, extending the availability of imprisonment as a penalty and increasing the upper limit of fines for breaches of health and safety law.

Background
The 2008 Act started as a Private Member's Bill introduced by Keith Hill Labour MP for Streatham. It is the latest measure to address the widespread public concern that existing penalties for health and safety offences were too lenient. Together with the Corporate Manslaughter and Corporate Homicide Act of 2007, the 2008 Act represents a significant legislative response to that public concern.

The penalties
The 2008 Act has three main components: 

  • It increases the power of the courts to imprison those found guilty of certain health and safety offences. The lower courts (sheriff courts and magistrates courts) can imprison for up to 12 months, whilst the maximum terms of imprisonment in the upper courts (Crown Court and High Court of Justiciary) is 2 years.
  • The upper level of fines for contraventions of health and safety regulations is increased from £5,000 to £20,000.
  • Certain offences that could only be tried in the lower courts can now be tried in the higher courts.
  • Prior to the Act coming into force the power of imprisonment did not extend even to breaches of the core general duties under the Health and Safety at Work Act. It was confined to contraventions of enforcement notices and failures to comply with remedial orders made by a court following conviction.

Impact
Most commentators take the view that the courts are likely to use their new powers sparingly. Keith Hill has calculated that the Act will increase the number of individuals imprisoned each year from around three or four to six or eight. However, it is clear that senior personnel continue to be the focus of investigations and prosecutions and this trend is only set to continue.

Fine guidelines
Guidelines are to be produced for setting fines for convictions under the Corporate Manslaughter and Corporate Homicide Act 2007, as well as convictions under the 1974 Act. It is thought that the guidelines might recommend fines based on a company's turnover as opposed to profit.

What is clear is that the trend is towards increasing the level of fines. On 29 January 2009 the Court of Criminal Appeal in Edinburgh increased a fine of £3,750 to £30,000 following a Crown Office appeal. Health and safety breaches had been admitted by Munro & Sons (Highland) following an incident where a 24-year-old was killed. The Court endorsed the view of the Lord Advocate that there was a need for "appropriate punishment in the public interest".

What we can do
We are always available to provide health and safety seminars as well as briefings, updates and training. To discuss further or for more information please contact Natasha Durkin.

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