Higher penalties for H&S infringements

Mick Antoniw examines the new Health and Safety (Offences) Act, which increases penalties for safety offences.

Hot on the heels of the Corporate Manslaughter Act 2007, the Health and Safety (Offences) Act 2008 came into force in January this year.

The Corporate Manslaughter Act (CMCH) exposed the existing low level of fines being imposed in the magistrates and crown courts for breaches of the Health and Safety at Work Act 1974.

In the magistrates court, the maximum fine was £5,000. Average fines were barely over £4,000. As a result, many cases were referred to the crown court where there are unlimited fines. Even so, the average fine imposed in the Crown Court was just over £33,000.

The Hampton Review on Regulatory enforcement and Inspection, published in March 2005, concluded that: “Illegal operators have incentives to undercut honest businesses, partly because penalties are too low, absolutely but more wrongly because penalties imposed often do not reflect the commercial advantage a business has gained from non compliance.”

The Macrory Report, a year later, adopted a similar stance.

So, after a number of failed attempts to increase the level of penalties for safety offences, a private member’s bill, the Health and Safety (Offences) Bill 2007, received all party support and received royal assent in October 2008.

The Act increases the powers of the lower courts to fine companies but also gives the option in exceptional cases to impose sentences of imprisonment.

Fines are increased in the magistrate’s courts to £20,000 for most offences. This will probably result in fewer cases being referred to the crown courts for sentence as the lower courts will be able to impose larger fines.

Under the new Act it will also be possible for the lower courts to sentence individuals who break health and safety laws to up to six months imprisonment. However, this is an exceptional penalty and the government’s intention appears to be that it should be used sparingly and only in the most serious cases.

The Act also increases the number of offences that can be tried in the higher courts and makes imprisonment an option in more offences, but with the same caveat as in the lower courts.

Of course, the CMCH also increases penalties. Guidance from the Sentencing Guidelines Council is still awaited but is likely to result in significantly increased fines for the new offence of corporate manslaughter, as well as unlimited powers for courts to impose remedial orders (a form of corporate probation) and publicity orders.

While both the CMCH and the Health and Safety (Offences) Acts are welcome, increasing the penalties makes little difference if the Health and Safety Executive (HSE) does not have the resources to properly investigate accidents and then to prosecute offenders.

The tables below show the decline in numbers of HSE inspectors and the corresponding decline in the number of prosecutions.

The current HSE consultation on its future strategy fails to address this fundamental issue. Unless it does, and the number of inspectors is not only brought back to pre-2004 but increased further still, then the imposition of new legislation and penalties will be little more than health and safety window dressing.

HSE’s disappearing inspectors

HSE operational frontline inspectors

Year All Factory/
Offshore Nuclear
2004 1,483 852 146 148
2005 1,404 822 137 143
2006 1,328 763 122 133
2007 1,312 748 121 134
2008 1,238 706 116 127

HSE’s failing enforcement record

Year Offences
Convictions Worker
2003/04 1,720 1317 236 0.8
2004/05 1,320 1025 223 0.8
2005/06 1,056 840 217 0.7
2006/07 1,051 852 247 0.8
2007/08* 1,028 839 229 0.8

Figures are for workers (employees plus self-employed) *provisional figures. Source Hazards.

erson and determined to make the best of it and Thompsons have been a real help with that."- Roger