Examination of Witnesses (Questions 200
- 219)
MR DAVID
BERGMAN AND
DR GARY
SLAPPER
TUESDAY 2 NOVEMBER 1999
Mr Olner
200. Can you explain who the "activists"
are? You mentioned "activists" in your answer to Mr
Cummings.
(Mr Bergman) By the word "activist" I simply
mean people who have been involved in concerns about hazards and
health and safety and corporate accountability over the years
but may not be academics and may not be lawyers.
201. I know you have sent your evidence in but
perhaps you could explain for the record why you think the HSE
has such a low prosecution rate?
(Mr Bergman) Just to clarify, after major injury the
HSE only prosecutes 10 per cent of major injuries it investigates
and 20 per cent of deaths it investigates.
202. They are fairly alarming figures, but if
you look at the Crown Prosecution and their two tests, one is
that there has to be adequate evidence of the offence and, two,
that the prosecution should take place. Have you analysed those
figures to see whether there was adequate evidence of an offence
taking place?
(Mr Bergman) What I can say about that is this: all
these studies undertaken by the Health and Safety Executive and
independent studies, including a study by Dr Gary Slapper, indicate
that about 70 per cent of deaths are the result of management
failure, and you would expect a proportion similar to that to
result in a prosecution. A study done by the West Midlands Health
and Safety Advice Centre also supported that Health and Safety
Executive Study. So there is a clear divergence between what studies
indicate prosecution rates should result after investigations
into deaths and major injuries and what actually does take place.
203. Are you really saying that the HSE is so
unprofessional that it cannot separate its preventative work from
its injury and death investigations?
(Dr Slapper) As Mr Bergman said in his opening remarks,
we are not here to make any allegations of unprofessionalism or
personal incompetence—
204. You have made that point but you have put
some corporate irresponsibility on to the HSE.
(Dr Slapper) Structural inability to perform in that
way.
205. That is a nice lawyer's term.
(Dr Slapper) Six from ten[1]
major injuries are not even investigated. If that corresponding
deficiency was present in the playground or street corner, if
it became evident that serious injuries were inflicted on children
in the playground or on citizens in the street and were being
uninvestigated at that rate of 60 per cent[2],
that would be regarded as structurally inadequate.
206. Why are they not investigated?
(Dr Slapper) We can present evidence for that, although
that is a question which really needs to be put at the door of
the Health and Safety Executive.
207. What is your view as to why they are not
being investigated? Is it because people who have been injured
do not press it forward?
(Mr Bergman) The key issue here is about a lack of
resources that are available to the Health and Safety Executive
so that it does not have the ability to investigate more than
11 per cent of the major injuries that are reported to it. Also,
a failure of the Health and Safety Executive to recognise the
significance and importance of investigating these incidents,
first of all to ensure that they do not take place again but also
to ensure that any criminal offences that may have been committed
by the companies and company directors are discovered and prosecuted.
208. I need to get it right in my own mind because
it is impossible to inspect and police every property or every
factory within the UK. Self-inspection works. What I am concerned
about is if someone is doing self-inspection with proper health
and safety reps and something occurs, a serious injury or a death
results from it, are you telling me that health and safety representative
cannot go direct to the HSE and expect the HSE to prosecute?
(Mr Bergman) That is exactly the case. The company
is under a legal obligation to report that injury. In our statistics
we talked about the most serious injuries, the major injuries.
The company has a duty to report that major injury to the Health
and Safety Executive. The Health and Safety Executive will then
decide amongst those injuries that have been reported to it which
ones it investigates. The only criteria it uses is information
that the company provides.
209. Do they use it, do they prosecute as well?
Do they have to investigate before they can initiate a prosecution?
(Mr Bergman) Absolutely because they have got to discover
the facts of the case, whether or not it was simply an "accident"
as we really understand the word "accident" or whether
or not it was as a result of criminal conduct. Without that investigation
there can be no prosecution. Failure of the HSE to investigate
90 per cent of major injuries is calamitous.
210. You think there should be a separate body
that will do the prosecutions and that body that does the prosecutions
should delegate down to the health and safety reps within those
places where the accidents occur?
(Mr Bergman) Not really. What we are arguing is that
within the Health and Safety Executive there should be an administrative
division so that on the one hand you have inspectors who undertake
preventative inspections. They are the ones who go around to the
workplaces and find out whether or not there are breaches of health
and safety law. Those inspectors give advice, they give oral and
written advice, they impose an improvement notice, they impose
a prohibition notice and in the odd situation they prosecute.
That should be one set of inspectors. On the other hand there
should be a different set of inspectors in an administrative way,
and they may move between the two, whose sole function is the
investigation of deaths and major injuries. The reason for that
is that those inspectors require a different set of skills, forensic
skills, and they need to have time and resources to able to undertake
those investigations. At the moment, because they are merged,
an inspector who is conducting an investigation knows he has got
ten other inspections to do that week and, therefore, either that
investigation does not take place or the rigour of that investigation
is compromised.
Mr Donohoe
211. You argue that the HSE inspectors are less
than competent at prosecuting cases in the courts. Why do you
argue that?
(Mr Bergman) The Health and Safety Executive should
be contrasted with the Environment Agency and local authority
Environmental Health Officers. Just to confirm our evidence, I
spoke to both the Environment Agency yesterday and the Institute
of Chartered Environmental Health. If you take the Environment
Agency first, they told me that no Environment Agency inspector
undertakes prosecutions. In each region there is a legal group
and there is a legal prosecutor. There are lawyers who undertake
the prosecutions. The Environment Agency inspector might be a
witness in court but they do not take the prosecution. It is exactly
the same case for Environmental Health Officers.
Chairman: Jobs for lawyers.
Mr Donohoe
212. You would say that it is jobs for the lawyers.
Is this the hidden agenda as far as your trust is concerned? Virtually
all of your members have some kind of attachment to the law.
(Mr Bergman) That is not quite the case. On that point,
just to sting it right at the beginning, the lawyers who are involved
are basically civil law lawyers so they would not be involved
at all in prosecutions undertaken. The HSE inspectors do not have
the competency because that is not their expertise. The criminal
justice system operates in every other sphere through the use
of lawyers.
213. No, they do not, not in industrial tribunal
courts.
(Mr Bergman) In the criminal justice system. Here
we are talking about prosecuting in a magistrate's court.
214. Just to diversify for a second, would you
argue as a trust that it should be the case in industrial tribunals,
for instance, it should only be lawyers who prosecute cases?
(Mr Bergman) To be honest, that is not our expertise.
215. That is the comparator.
(Mr Bergman) It is not a comparator actually. We are
talking about the criminal justice system and the serious crimes
that either go to the magistrate's or the Crown Court. Earlier
in discussion with other witnesses you talked about fines. There
are lots of other reasons but one of the reasons why there are
low fines is that a high percentage of death and injury prosecutions
take place in the magistrate's court. Although it is up to the
magistrate to decide whether the case gets referred to the Crown
Court, the HSE inspector's assertions in court are absolutely
crucial. We believe that these statements to the court should
be made by lawyers.
216. Surely that is lack of training on the
part of the HSE to their inspectors? That is nothing to do with
the fact that you need to be a lawyer to be able to prosecute
cases.
(Mr Bergman) When we talked to the Environment Agency
and the Institute of Environmental Health Officers they could
not believe that HSE inspectors do the prosecutions. They said
they would never allow one of their inspectors near a court, that
is not their expertise, they are not lawyers, they are expert
health and safety enforcers.
217. You do not need to be a lawyer to prosecute
a case.
(Mr Bergman) I suppose our argument is that—
Mrs Dunwoody
218. We are always very gullible in this Committee
and we accept everything everybody tells us but you do have quite
a lot of high powered lawyers who make a lot of money out of cases
which are prosecuted. I am sure this is just coincidental. What
we are really asking you is why do you think that the extra involvement
of lawyers will make that much difference? It seems to me that
you are arguing, on the one hand, for a set of people who are
better trained at inspecting but, on the other hand, when they
get to a certain point all their responsibilities should be handed
to the lawyer. Or are you insisting that lawyers should enter
from the beginning without any health and safety training and
take over the case?
(Mr Bergman) I think Gary has got a point. In the
normal course of events when it is a road traffic incident, when
it is any other crime, you have the investigators who do the investigation
and they pass that information on to the Crown Prosecution Service.
There was a time, of course, when the police did their prosecutions
but it was thought appropriate that you had an independent body
that undertook the prosecutions. What we are arguing is that lawyers
who are trained as prosecutors, that is what we are saying, should
undertake this work which only they are competent at.
Mr Donohoe
219. If this was to be employed would this not
be an additional drain on the HSE's resources and because of that
they would not be able to do half of the work that they do just
now because all of that resource would be going to professional
lawyers who would be picking up £1,000 a day in the court?
(Dr Slapper) If the debate is restricted by the notion
that we are looking at an institution with a defined budget and
different ways of apportioning that budget then I think it is
fair to say that the Centre and people attached to it would immediately
make the observation that any move towards the heightening of
criminal justice focus by that institution would correspondingly
diminish the resources being spent on—
1 Witness correction: One in ten. Back
2
Witness correction: 90 per cent. Back
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