Over the last 20 years, a series of high profile and catastrophic incidents have highlighted both corporate failure in health and safety and significant inadequacies in punishment. From Piper Alpha in 1988 to Ladbroke Grove and the Transco case in 1999 where a family was killed by an exploding gas main, these and other incidents all resulted in failed corporate manslaughter prosecutions and, without doubt, added to the perception that corporate offenders were not being held to account for their failings. After many delays Westminster legislated to address corporate killing in the Corporate Manslaughter and Corporate Homicide Act 2007.
However there is still considerable public concern that punishment for health and safety offences does not reflect the seriousness of those offences. Although the 2007 Act goes some way to addressing corporate liability for incidents involving death, it does not tackle the perception that health and safety breaches in general were not being punished appropriately.
The Health and Safety (Offences) Act 2008 which came into force at the end of January 2009 tries to deal with this by increasing the penalties available for offences. For HSE, the Act should be a significant deterrent to businesses who do not take their health and safety responsibilities seriously.
Firstly, the Act increases the power of the courts to imprison those found guilty of nearly all health and safety offences. Previously imprisonment was restricted to breaches of Improvement or Prohibition notices or failures to comply with remedial orders made by a court following conviction. The lower courts (Sheriff Courts and Magistrates Courts in England & Wales) can now imprison for up to 12 months, whilst the maximum term of imprisonment in the upper courts (Crown Court in England & Wales and High Court of Justiciary in Scotland) is now 2 years.
Secondly, the upper level of fines for contraventions of health and safety regulations imposed in the lower courts has been increased from £5,000 to £20,000 and certain offences that could only be tried in the lower courts can now be tried in the higher courts. Breaches of general health and safety duties remain punishable by a maximum fine of £20,000 in the lower courts, and an unlimited fine in the upper courts.
Most commentators take the view that the courts are likely to use their new powers sparingly. Keith Hill MP, who introduced the original Private Member's Bill, calculated that the Act will increase the number of individuals imprisoned each year from around three or four at present to six or eight. It is clear however that senior management will continue to be a focus of investigations and prosecutions, notwithstanding the anticipated limited impact on individuals.
Whilst this impact is limited, corporate fines are likely to continue to increase. On 29 January 2009 the Court of Criminal Appeal in Edinburgh increased a fine of £3,750 to £30,000. In this case the court had the power to impose an unlimited fine as the trial had taken place in the High Court. Health and safety breaches had been admitted by Munro & Sons (Highland) Ltd following an incident in which a 24 year old was killed. The Court explained "that the sentence imposed by the sentencing judge was far too low and took inadequate account of the nature of the offence itself and the need for appropriate punishment in the public interest".
That sentiment echoes the approach behind the new Offences Act: that punishment should be appropriate, fit the offence and recognise that there is a wider public interest in ensuring compliance with health and safety legislation.
Natasha Durkin is an associate specialising in Health and Safety law with leading UK law firm Shepherd and Wedderburn LLP.