Memorandum submitted by Professor Frank
The Health and Safety Commission
and the Health and Safety Executive must evolve to meet the formidable
difficulties which confront them. A cohesive unitary board comprising
executive and non-executive members, remains the best pattern.
The need for a balance between executives and non-executives has
been incorporated into the combined code on corporate governance
for companies listed on the London Stock Exchange. Similar standards
should be put in place for the public sector. The minimal role
likely to be accorded to local authorities is to be regretted.
Local authorities have much to offer in terms of knowledge, experience
and resource, and they could contribute much at the strategic
level to help meet the challenges of the 21st century.
The whole area of health and
safety regulation at EC level introduced since the passage of
the Single European Act in 1986 and largely completed by 1994
was poorly planned and inadequately considered. More clarity and
consistency is required. Inappropriate implementation may not
be as big a problem in the UKin absolute terms and relative
to other EU countriesas is alleged by some commentators.
The current law provides for
individual liability for health and safety offences, including
deaths at work in s.37 of the Health and Safety at Work etc, Act
1974. Directors and officers of corporations owe statutory duties
to their corporation, their employees and the public at large.
The new IoD/HSC guidance was published on October 29th 2007. This
guidance sets out an agenda for the effective leadership of health
and safety. It is designed for use by all directors, governors,
trustees, officers and their equivalents in the private, public
and third sectors. It applies to organisations of all sizes. In
considering the liability of an organisation under the Corporate
Manslaughter and Corporate Homicide Act 2007, a jury must consider
any breaches of health and safety legislation and may have regard
to any health and safety guidance. This guidance could be a relevant
consideration for a jury depending on the circumstances of the
particular case. Similar considerations will apply for prosecutions
under the Health and Safety at Work etc., Act 1974. It is, of
course, too early to assess the impact of this guidance.
The resources available to the
Health and Safety Commission and the Health and Safety Executive
are insufficient and as a consequence are spread too thinly. In
real terms the budget for HSE for 2005-06 is 1.3 times the budget
out-turn for 1975-76, its first year of operation. The volume
of legislation, the wide range and deep complexity of the issues
which must be managed by the Health and Safety Commission and
the Health and Safety Executive justifies an increase in their
budgets of some 25-30%.
Trials on indictment in Crown
Courts for the more serious offences have resulted in substantial
fines but fines for offences tried summarily have been criticised
for their leniency for much of the time that the Health and Safety
at Work etc Act 1974 has been in force.
1.1 The following is evidence on the proposal
to merge the Health and Safety Commission and the Health and Safety
Executive, the legislative framework, resources and inspection
and enforcement and prosecutions. I have been researching these
matters since the 1970s and have published extensively on them.
A list of my relevant publications is available on request. I
have arranged my evidence according to your subheadings.
2. The proposal to merge the Health and Safety
Commission and the Health and Safety Executive
2.1 I have recently published a paper on
this subject. It can be found at The Health & Safety CommissionA
Case for Reform, Law Science and Policy, , 3 157175
2.2 The Health and Safety Commission and
the Health and Safety Executive were deliberately set up at arm's
length from Government to protect their activities from political
interference. This was intended to promote public confidence in
health and safety regulation. In addition, it was intended to
demonstrate that the Health and Safety Commission and the Health
and Safety Executive were independent and outside political influence.
The relationship of these two Crown bodies is unique within Whitehall.
The parent department, the Department for Work and Pensions, retains
mechanisms for influence through funding, appointments, target
setting, audit and review. Nevertheless, an appointed Commission
served by an executive arm has had certain advantages. The "lay"
element can effectively limit the possibility of "rule"
by officials and has made for a degree of democratic control even
though in practice employers' views are better represented in
the system than those of employees.
2.3 The Minister for Health and Safety has
ministerial responsibility for the work of the Health and Safety
Commission and the Health and Safety Executive on behalf of the
Secretary of State for the Department of Work and Pensions. The
Secretary of State is responsible for the exercise of the powers
on which the administration of the Health and Safety Commission
and the Health and Safety Executive depends and is accountable
to Parliament for all the policies, decisions and actions of the
Commission and the Executive. He transmits the recommendations
of the Commission to Parliament, answers Parliamentary questions
about the Commission, and nominally appoints the Commissioners.
The publication of Revitalising Health and Safety saw the Health
and Safety Commission begin to develop a new role and form a new
relationship with the Health and Safety Executive. This new role
was approved of and encouraged by the Secretary of State for Work
and Pensions in 2004 when Ministers set out their expectations
of the role of Commissioners in a letter to them. Issues of corporate
governance have now become more important. The relationship between
each non-departmental public body and its sponsor department is
clearly defined and supports the degree of delegation and independence
granted to the body, whilst ensuring propriety, regularity and
value for money, and that risks are properly managed.
2.4 The freedom of the Health and Safety
Executive to impose regulations is constrained by the Health and
Safety Commission which must approve such regulations before they
are presented to the Secretary of State who in turn lays them
before Parliament. The Commission has extensive powers, but they
are all subject to ministerial approval. Nevertheless, this mechanism
gives the agency, which is unelected, the de facto power to make
criminal laws, since Parliament rarely debates its regulatory
proposals. Members of Parliament have the power to ask questions
in Committee or on the floor of the House but more and more over
the last 20 years we have seen the initiative being taken through
2.5 The Health and Safety Commission and
the Health and Safety Executive must evolve to meet the formidable
difficulties which confront them. The proposal to form a new Merged
Body ostensibly reduces the autonomy of the Health and Safety
Executive, which is, in fact, in accord with the recommendations
of the Robens Committee. A fragmentation of focus for the Merged
Body may result in significant national economic problems, given
the ramifications of any failure of the Merged Body to function
effectively and efficiently. A cohesive unitary board comprising
executive and non-executive members, remains the best pattern.
Sir Christopher Hogg, chairman of the Financial Reporting Council,
has recently said "Non-executives need the input of executive
directors to improve their understanding of the company, and board
experience was also valuable for senior managers." (Financial
Times 31 December 2007) The need for a balance between executives
and non-executives has been incorporated into the combined code
on corporate governance for companies listed on the London Stock
Exchange. Similar standards should be put in place for the public
sector. The minimal role likely to be accorded to local authorities
is to be regretted. Local authorities have much to offer in terms
of knowledge, experience and resource, and they could contribute
much at the strategic level to help meet the challenges of the
3. The legislative framework
3.1 Are EU directives interpreted and
translated by the Health and Safety Commission into UK law appropriately?
3.2 I am the joint author of a book (with
Professor Alan C Neal): The European Communities' Health and
Safety Legislation Chapman and Hall, London 419 pp 1992 ISBN
0 412 46690 2. I have recently given advice to the Health and
Safety Executive on the transposition of European Union health
and safety Directives into United Kingdom law and served as a
British Government Adviser in ECJ Case No C-127/05: Commission
of the European Communities v United Kingdom. I have also
recently undertaken work for the Health and Safety Executive,
in conjunction with Professor Alan Neal of the University of Warwick,
on A survey of changes in the volume and composition of claims
for damages for occupational injury or ill health resulting from
the Management of Health and Safety at Work and Fire Precautions
(Workplace) (Amendment) Regulations 2003. This report can
be found at: http://www.hse.gov.uk/research/rrpdf/rr593.pdf
3.3 The European jurisdiction has largely
superseded the United Kingdom in setting the substance of health
and safety regulation. The sheer quantity of directives has transferred
the policy agenda from the United Kingdom to the EU level. EC
health and safety legislation should undergo a thorough review.
A clear policy needs to be developed for EC health and safety
3.4 It is now recognised that the whole
area of health and safety regulation at EC level introduced since
the passage of the Single European Act in 1986 and largely completed
by 1994 was poorly planned and inadequately considered. More clarity
and consistency is required. Legislation at this level has been
poorly drafted. Interpretation is difficult as was seen in ECJ
Case No C-127/05: Commission of the European Communities v
United Kingdom. The lack of transparency at EC level has serious
consequences for the United Kingdom where self-regulation is the
prevailing philosophy. The German 2007 EU Presidency pledged to
improve regulation in occupational safety and health. A systematic
evaluation of European occupational safety and health directives
was conducted to determine whether the objectives of the directives
were appropriate and the policy instruments used in them "capable
of achieving the intended positive effect in the reality of the
workplace". The EU Commission is now poorly staffed in this
area. Significant changes are therefore unlikely.
3.5 The United Kingdom is a founder member
of the International Labour Organisation. Based from the beginning
(1919) on the inseparability of peace and social justice the aims
and principles of the ILO were re-affirmed and strengthened by
the Declaration of Philadelphia (1944) which brought the organisation
into the struggle against poverty and insecurity. The ILO promulgates
international labour standards, amongst which are those related
to Article III (g) of the Philadelphia Declaration"adequate
protection for the life and health of workers in all occupations".
ILO Conventions have considerable regulatory effect.
3.5 Section 1 (2) Health and Safety at Work
etc., Act 1974 permits statutes, regulations, orders and other
instruments to be progressively replaced by a system of regulations
and approved codes of practice operating in combination with the
other provisions of Part 1 and designed "to maintain or improve
standards" established by or under those enactments. The
reference to the maintenance and improvement of standards was
added to the Bill by the Government to allay the fears that the
old standards might be relaxed in the new laws. (Parliamentary
Debates HC 18 June 1974, col 306.)
3.6 Implementation is the process of taking
standards set within the European Directive and putting them into
Great Britain's law. This process is also known as transposition.
A directive is published in the Official Journal of the European
Community with a deadline for implementation, which is usually
three years. The Health and Safety Executive produces a Consultation
Document with draft regulations. There is a three month consultation
period, where the Consultation Document is issued to the Health
and Safety Executive consultation directory and anyone who requests
it from the HSE/C website. The comments are then analysed and
discussed with stakeholders. The amended Regulations are recommended
to UK Ministers by the HSC. The Ministers then sign the regulations,
they are laid before the UK Parliament and come into operation.
The British Government must show that existing/ new legislation
provides the same standards as set out in the European Directive.
The European Commission (EC) will seek an implementation report
from Member States after the agreed implementation date.
3.7 The Davidson Review on the Implementation
of EU legislation reported to the Chancellor of the Exchequer
in November 2006. The focus of the review was on the manner in
which European legislation is implemented in the United Kingdom.
The review found that properly assessing whether a particular
piece of European legislation has in fact been over-implemented
and whether or not overimplementation is justified is not
straightforward. The assessment requires careful research into
legislation and the policy reasons behind the UK's implementation,
as well as consideration of how the legislation is being enforced
in practice and the impacts it has on those being regulated.
3.8 The Davidson Review said that "inappropriate
implementation may not be as big a problem in the UKin
absolute terms and relative to other EU countriesas is
alleged by some commentators. In Davidson's view the areas of
health and safety he addressed illustrated justified examples
of gold plating".
3.9 Are director's health and safety
duties appropriately covered by voluntary guidance?
3.10 I am the author of Criminal Liability
of Directors and Senior Managers for Deaths at Work Criminal
Law Review  December, 949-968, ISSN 0011 135X and an HSE
Research Report published in 2007, with Professor Alan C Neal
of the University of Warwick, entitled A survey of the use
and effectiveness of the Company Directors Disqualification Act
1986 as a legal sanction against directors convicted of health
and safety offences.www.hse.gov.uk/research/rrhtm/rr597.htm.
I have recently served as an independent member of the Institute
of Directors/Health and Safety Commission Steering Group on Directors
Responsibilities for Health and Safety. www.iod.com/intershoproot/eCS/Store/en/pdfs/hse_guide.pdf
3.11 The new IoD/HSC guidance was published
on 29 October 2007. This guidance sets out an agenda for the effective
leadership of health and safety. It is designed for use by all
directors, governors, trustees, officers and their equivalents
in the private, public and third sectors. It applies to organisations
of all sizes. In considering the liability of an organisation
under the Corporate Manslaughter and Corporate Homicide Act 2007,
a jury must consider any breaches of health and safety legislation
and may have regard to any health and safety guidance. This guidance
could be a relevant consideration for a jury depending on the
circumstances of the particular case. Similar considerations will
apply for prosecutions under the Health and Safety at Work etc.,
Act 1974. It is, of course, too early to assess the impact of
3.12 The issue of director responsibility
has been the subject of continuing discussion in many leading
common law and commonwealth jurisdictions and we have recently
been sharply reminded of its continuing importance and relevance.
In March 2005, BP, then Europe's second biggest listed energy
group and Britain's largest company, suffered a massive explosion
at its Texas City plant in the United States. Fifteen employees
were killed and one hundred and seventy were injured. It was the
United States' biggest industrial accident in a decade. Joe Barton,
Chairman, US Congressional Committee on Energy and Commerce wrote
to Lord Browne of Madingley, then Chief Executive of BP, saying
that the state of the infrastructure of BP's Alaskan oilfield
and the deaths at BP's refinery in Texas City last year called
into question the company's commitment to safety. BP executives
were summoned to appear before the Investigations and Oversight
Sub Committee of the Congressional Committee on Energy and Commerce
in September 2006. BP entered into a settlement with the US Occupational
Safety and Health Administration (OSHA) to resolve more than 300
separate alleged violations of OSHA safety regulations. BP paid
a fine of $21.4 million and agreed to a number of corrective actions.
This is the largest fine in the history of the US Occupational
Health and Safety Administration. BP also set aside $2 billion
in compensation and has reached settlements with many of the injured
and bereaved. It is clearly the task of the Government of the
United Kingdom to set standards of health and safety management
and operation for multi-national companies which are registered
on the London Stock Exchange and which have a UK Headquarters.
3.13 The growing pressure on the boardroom
to embrace higher standards of corporate governance spreading
from the United States, in the wake of financial scandals, also
arises from the Turnbull Guidance which was published in September
1999. The latter had a long gestation following the harrowing
experiences of the "Maxwell period" and was the first
in a recent line of new guidelines and regulations aimed at businesses
taking risk more seriously. Endorsed by the London Stock Exchange,
it places responsibility for managing risk firmly upon senior
directors. Financial markets attach increasing importance to corporate
governance as a central touchstone in the evaluation of good management
and hence of the company. Listed organisations must now demonstrate
to shareholders that they have assessed the risk attached to their
all assets and activities, and that they have taken action to
limit or remove their exposure to risk in each area. The Companies
Act 2006 is an important development in this regard. Directors
now have a duty to promote the success of the company for the
benefit of its members. This replaces the common law duty to act
in good faith in the company's interests. The duty to promote
the company's success will involve considering, amongst other
factors the likely long term consequences of a decision; the interests
of the company's employees; relationships with the company's trading
partners; the effect of the company's operations on the community
and the environment; the desirability of maintaining the company's
reputation for high standards of business conduct; and the need
to act fairly as between members. Directors will only be liable
to the company or its shareholders on behalf of the company, for
breach of this duty if the company can demonstrate that it has
suffered loss as a result of the breach. The Act also makes reporting
on environmental and social activities mandatory for companies
listed on the London Stock Exchange. These developments were perhaps
foreseen by Lord Justice Hoffman in Bishopsgate Investment
Management Ltd v Maxwell (No 2) when he acknowledged that
the law "may be evolving in response to changes in public
attitudes to corporate governance." Perhaps it should be
noted at this point that an objective of good governance is to
promote strong, viable and competitive corporations which facilitate
better internal and external communication and improved transparency
of operation. It is now generally accepted that boards of directors
are stewards of the corporation's assets and their behaviour should
be focused on adding value to those assets, enhancing shareholder
value, protecting their workforce and safeguarding those who might
be adversely affected by the firm's activities. As has been said
elsewhere, "acceptable levels of safety at work cannot be
achieved simply through the activities of specialist functions,
but only by the incorporation of safety standards into general
management objectives." The board must have the influence,
power and resources to take initiatives and set the pattern. Moreover,
the board must be effective. Positive policy objectives must be
accompanied by clear allocation of responsibilities within the
management structure. As the 2006 Act has maintained s 37 Health
and Safety at Work etc, Act 1974 and has not amended it, it is
therefore essential that the impact and wording of s 37 be examined.
It is clear that this provision offers considerable potential
for a greater use of the prosecution discretion in the exercise
of this power.
3.14 The current law provides for individual
liability for health and safety offences, including deaths at
work in s 37 of the Health and Safety at Work etc, Act 1974. Directors
and officers of corporations owe statutory duties to their corporation,
their employees and the public at large.
Typically, the penalty will be a fine. However,
there is a trend of seeking to broaden the range of sanctions
available to enforcement agencies. These might, for example, provide
incentives to comply with the law; enhance the role of victims;
offer more restitution to the business community and employees;
or help ensure that lessons are learnt and offences are not repeated.
The Health and Safety Commission (HSC) has published a guidance
note and a revised enforcement policy, which encourages not only
the individual prosecution, but also the disqualification, of
directors following conviction. Section 2 of the Company Directors
Disqualification Act 1986 gives the court the power to make a
disqualification order in relation to a person who has been convicted
of an indictable offence in connection with the management of
a company. The maximum period for disqualification under section
2 is five years where the order is made by a court of summary
jurisdiction, and 15 years in any other case. I propose that for
deaths at work the investigation should be carried out by a new
specialist trained independent inter disciplinary team of experienced
and competent staff.
4.1 Does the HSE have sufficient resources
to fulfil its objectives as the health and safety regulator and
meet its PSA targets?
4.2 The resources available to the Health
and Safety Commission and the Health and Safety Executive are
insufficient and as a consequence are spread too thinly. In real
terms the budget for HSE for 2005-06 is 1.3 times the budget out-turn
for 1975-76, its first year of operation. The volume of legislation,
the wide range and deep complexity of the issues which must be
managed by the Health and Safety Commission and the Health and
Safety Executive justifies an increase in their budgets of some
4.3 The Communication from the Commission
of the European Communities to the Council and the European Parliament
(COM (2007) 62 Brussels, 21 February 2007 entitled Improving
quality and productivity at work: Community strategy 2007-12 on
health and safety at work states that an ongoing, sustainable
and uniform reduction in accidents at work and occupational illnesses
continues to be the prime objective of the Community strategy
for the period 2007-12. Health and safety at work is now one of
the most important and most highly developed aspects of EU policy
on employment and social affairs. The European Community's health
and safety at work policy argues for real wellbeing at work, be
it physical, emotional or social, which is more than merely the
absence of occupational accidents or diseases. These issues must
be addressed in the context of changes taking place at work: feminisation
and ageing of the working population, diversification of the forms
of employment (temporary work, atypical working hours, teleworking,
etc.), and an increase in certain social risks (stress, depression,
harassment, intimidation, violence, etc.). The enormous economic
costs of problems associated with health and safety at work inhibits
economic growth and affects the competitiveness of businesses.
A considerable share of these costs also falls upon social security
systems and public finances.
4.4 The Hampton Review (Reducing Administrative
Burdens effective inspection and enforcement HM Treasury March
2005) which was accepted by the Government, believed that the
Health and Safety Executive should expand to cover other bodies
with a similar remit, including aspects of public safety.
The review believed that the Health and Safety
Executive should expand to take in:
The Adventure Activities Licensing
The Gangmasters Licensing Authority.
The Engineering Inspectorate.
The inspection functions of
the Coal Authority.
On 1 June 2007 REACH came into force. The Health
& Safety Executive have been given the enforcement responsibility.
The Health and Safety Executive must have the capacity to address
new challenges, for example, the explosion and fire at Buncefield,
the outbreaks of Foot and Mouth disease and Hospital Acquired
Infections. A significant level of resources, which have not yet
been provided, will be needed address these responsibilities.
4.5 The Health and Safety Executive's Major
Hazards Strategic Programme is responsible for regulating and
assuring the safety of those industries where failure to manage
risks to health and safety can lead to a catastrophic incident.
These industries include nuclear, offshore oil and gas, chemical
manufacture and storage, mining, explosives, diving at work, dangerous
pathogens and genetically modified organisms.
4.6 PSA targets have been set for pro rata
reductions in incidence rate for fatal and major injuries, for
ill health incidence and for working days lost. Currently the
Health and Safety Executive is on track to meet targets for fatal
and major injuries but not on track to meet the targets for ill
health incidence and for working days lost. The HSE does not have
sufficient resources to fulfil its objectives as the health and
safety regulator and meet its PSA targets. It should be noted
that apart from fatal injuries many of the statistics used as
a benchmark are unreliable because of known underreporting.
4.7 The Chief Executive advised the Committee
last November that if budgets were reduced too far "enforcement
[of regulations] could not be maintained". He continued "We
have a genuine dilemma over limited resources." It has been
reported by the Financial Times on 29 November 2007 that
"The HSE has already cut its staff by 13% since April 2003the
equivalent of more than 500 full-time posts. In a further attempt
to make savings, it is closing its London headquarters and moving
to its operational centre in Bootle, Merseyside. The HSE fears
its finances could be further reduced as a result of spending
cuts imposed on its paymaster, the Department of Work and Pensions,
which has been told by the Treasury to reduce its budget in real
terms by 5% a year for the next three years."
4.8 The peak period for staff resources
was between 1977-1982 when the figure reached 4,169. Today the
figure is under 4,000. Some 250-350 jobs are likely to be shed
by April 2008 to satisfy budgetary restraints notwithstanding
that greater demands are being made of the service today than
4.9 The task of ensuring the health and
safety of work of workpeople and those who might be affected by
their activities is more difficult because of a growing labour
force. In 1977 the total labour force in the United Kingdom was
23.339 million. By 2007 the total labour force in the United Kingdom
had reached 29.29 million. Large-scale immigration is now seen
as essential for the UK's economic well-being, and measures have
been introduced to increase inflows. The benefits claimed include
fiscal advantages, increased prosperity, a ready supply of labour
and improvements to the age-structure.
4.10 The difficulties surrounding a growing
labour force, with a number whose first language is not English,
is compounded for the HSE in its aim to meet the PSA target because
many areas of health and safety are the responsibility of other
4.11 The Health and Safety Executive faces
a formidable challenge in the communication of "its message"
to small businesses. Over 90% of the 3.5 million businesses in
Great Britain employ fewer than 10 people.
4.12 Transport safety (air, rail, road and
sea) is the responsibility of the Department for Transport and
its agencies, Fire prevention and public safety are the responsibility
of the Department for Communities and Local Government and the
Home Office; Pesticide Safety and emissions from workplaces are
the responsibility of Defra/Environment Agency and the National
Radiological Protection Board is part of the Health Protection
Agency. Occupational health is a shared responsibility between
the Department of Health, Department for Work and Pensions, the
Health and Safety Commission and the Health and Safety Executive.
Health is a devolved responsibility in Scotland. Over 400 local
authorities enforce the Health and Safety at Work etc., Act 1974.
The UK's services sector, a good proportion of which is the de
facto enforcement responsibility of local authorities, accounts
for around 70% of the economy. The sector has the fastest rate
of employment growth.
4.13 Women now make up just under half the
workforce and certain types of occupational illness are becoming
more common (musculoskeletal disorders, infections and illnesses
associated with psychological stress). The nature of occupational
hazards is changing in tandem with the acceleration of innovation,
the emergence of new risk factors (violence at work, including
sexual and psychological harassment, and addictions) and the transformation
of work patterns. An ageing workforce is also a significant factor
in any examination of health-related problems in the workplace.
The Health and Safety Executive may not have the skills in sufficient
numbers to address these occupational health issues.
4.14 Efforts must continue to secure more
and better worker involvement in health and safety risk management
by raising awareness, influencing attitudes and changing behaviours.
5. Inspection, enforcement and prosecutions
5.1 Are penalties for health and safety
5.2 Section 33, Health and Safety at Work
etc, Act 1974, which creates the offences under the Act, specifies
15 categories of offence. Some of these are major substantive
offences, such as failure to discharge one or more of the general
duties in sections 2-7, or to contravene sections 8 or 9, or any
health and safety regulation made under the Act (including a requirement
or prohibition in such regulation). Contravention of any requirement
or prohibition imposed by an improvement notice or prohibition
notice is also made an offence, thereby showing that the administrative
sanctions exercisable by inspectors are ultimately dependent upon
enforcement through the criminal law.
5.3 In common with criminal offences generally,
the offences under the Act differ according to their gravity.
The most serious offences are indictable, that is triable by judge
and jury in the Crown Court which has wide powers of punishment.
Following the Criminal Law Act 1977 offences which are not triable
only summarily are indictable offences. Section 33 is framed in
flexible terms so that most of the offences render the offender
(a) on summary conviction to a fine not exceeding
Level 5 on the standard scale or in some cases £20,000.
(b) On conviction on indictment:
(i) to imprisonment not exceeding two years,
or a fine, or both, for certain offences; and
Orders may also be made to disqualify directors
under the Company Directors Disqualification Act 1986 for a period
up to but not exceeding 15 years (The penalty for breaching such
an order is a term of imprisonment of up to two years). The court
may also make an order that a person convicted of an offence must
take steps to remedy any matters which it is in his power to remedy.
(Section 42, Health and Safety at Work etc, Act 1974).
5.4 It is not the policy of the Health and
Safety Executive to prosecute for every breach of health and safety
law which comes to its notice. The criteria which fortify a decision
to prosecute are (1) deliberate flouting of the statutory provisions,
(2) recklessness of employers and others in exposing people to
hazards and (3) a record of repeated infringements by the person
concerned. Naturally, the Health and Safety Executive is particularly
concerned with those cases in which death or serious injury has
resulted from non-compliance with the law or in which persons
have been exposed to serious hazards notwithstanding that no actual
injury has resulted. Proceedings for an offence under Part 1 or
the relevant statutory provisions can only be instituted in England
and Wales by an inspector or by or with the consent of the Director
of Public Prosecutions.
5.5 In deciding between summary prosecution
or prosecution for the majority of offences which are triable
on indictment, the factors affecting the decision are (1) the
gravity of the offence, (2) the adequacy of the powers held by
the summary court, and (3) the record of the accused and his responsiveness
5.6 Trials on indictment in Crown Courts
for the more serious offences have resulted in substantial fines
but fines for offences tried summarily have been criticised for
their leniency for much of the time that the Health and Safety
at Work etc Act 1974 has been in force.
5.7 For both individual and corporate offenders,
the level of fine should reflect the extent to which the offender
fell below the required standard. The sentence should also take
account of any economic gain from the offence; it should not be
cheaper to offend than to take the appropriate precautions.
5.8 The Court of Appeal has said that the
following factors are relevant when sentencing corporate offenders:
the fine must be substantial
enough to have a real economic impact which, together with the
bad publicity arising from prosecution, will bring home to both
management and shareholders the need to improve regulatory compliance;
appropriate fines for large
companies might be beyond the summary fines limit. In such circumstances
the case should be dealt with in the Crown Court. Where larger
companies are dealt with in a magistrates' court, the court should
look to a starting point near the maximum fine level and then
consider aggravating and mitigating factors;
care should be taken to ensure
that fines imposed on smaller companies are not beyond their capability
to pay. The court might not wish the fine to result in the company
not being able to pay for improved procedures or to cause the
company to go out of business. Where necessary, the payment of
fines could be spread over a longer period than the usual 12 months;
there is no single measure of
ability to pay in respect of corporate offenders; turnover, profitability
and liquidity should all be considered. It is not usual for an
expert accountant to be available in summary cases; and
if a company does not produce
its accounts, the court can assume that the company can pay whatever
fine the court imposes.
5.9 When sentencing public authorities,
the court may have regard to the fact that a very substantial
financial penalty may inhibit the performance of the public function
that the body was set up to fulfil. This is not to suggest that
public bodies are subject to a lesser standard of duty or care
in safety matters, but it is proper for the court to take into
account all the facts of the case, including how any financial
penalty will be paid. (R. v. Southampton University Hospital NHS
Trust  EWCA Crim 2971 (CA).
5.10 Other sentencing options:
A discharge will rarely be appropriate
in these cases.
Compensation must be considered
if there is a specific victim who has suffered injury, loss or
Where the offender is a director
or senior manager of a company the court may be able to exercise
its power of disqualification under the Company Directors Disqualification
The prosecution will normally
claim the costs of investigation and presentation. These may be
substantial and can incorporate time and activity expended on
containing and making the area safe.
5.11 The starting points for determining
the correct level of sentence in any given health and safety case
are set out in R v F Howe & Son (Engineers) Ltd 
2 Cr App Rep (S) 37 (CA) and R v Balfour Beatty Infrastructure
Services Ltd  EWCA (Crim) 1586 (CA), see the Crime and
Disorder Act 1980.
5.12 As a matter of general principle "The
objective of prosecutions for health and safety offences in the
work place is to achieve a safe environment for those who work
there and for other members of the public who may be affected.
A fine needs to be large enough to bring that message home where
the defendant is a company not only to those who manage it but
also to its shareholders." "Failure to fulfil the general
duties under the Act are particularly serious as those duties
are the foundations for protecting health and safety" "...it
is impossible to lay down any tariff or to say that the fine should
bear any specific relationship to the turnover or net profit of
the defendant. Each case must be dealt with according to its own
5.13 The relevant factors are:
(a) In assessing the gravity of the breach
it is helpful to see how far short the defendant fell from doing
what was reasonably practicable.
(b) When death or serious injury results
from the breach. The court acknowledged that it is often a matter
of chance whether death or serious injury results from even a
serious breach, but added that death resulting from any breach
was to be regarded as an aggravating factor.
(c) The court held that an offence is seriously
aggravated where the defendant has deliberately profited from
a failure to take necessary health and safety measures or run
a risk to save money.
(d) The degree of risk and the extent of
the danger created by the offence.
(e) The extent of the breach, ie whether
it was an isolated incident, or whether it had been continuing
for a period of time.
(f) A failure to heed warnings from the enforcement
authority is another aggravating factor.
(g) Particular mitigating factors will include
prompt admission of responsibility and a timely plea of guilty;
steps to remedy deficiencies after they are drawn to the defendant's
attention; and a good safety record.
5.14 In 2005-06 the number of offences prosecuted
by the Health and Safety Executive decreased by 23% to 1,012 from
1,320 in 2004-05 and 1,720 in 2003-04. The number of convictions
decreased by 28% in 2005-06 to 741 from 1,025 in 2004-05. In 2006-07,
the number of offences prosecuted by HSE increased to 1,141, from
1,056 in 2005-06. The number of convictions increased in 2006-07
to 848. The average penalty per conviction in 2006-07 was £15,370.
If fines in excess of £100,000 are excluded, this gives an
average of £8,723.
5.15 In 2004-05 there were 332 offences
prosecuted by local authorities a decrease of 19% compared with
2003-04. The number of convictions decreased by 21% in 2004-05
to 281 from 354 in 2003-04. In 2004-05 the proportion of offences
prosecuted that led to conviction was 85%. The average penalty
per conviction in 2004-05 was £5,899. The figure includes
one fine of £300,000 which, when removed, gives an average
Professor Frank Wright