The new health and safety legislation has become law.

There was a considerable fanfare following the introduction of the new Corporate Manslaughter Act in April 2008 – a piece of legislation that introduced no new offences against individuals and did not include imprisonment as a sentencing option. In contrast, little attention has been given to the Health and Safety (Offences) Act (the Offences Act), which received the Royal Assent last October. This is surprising since it gives courts the power to impose prison sentences for breaches of the Health and Safety at Work Act.

The purpose of the new Offences Act is to raise the maximum penalties available to the courts for certain health and safety offences. The explanatory notes to the Act (published in November 2008) say that the objective of the changes is to ensure that sentences for health and safety offences are “sufficient to deter those tempted to break the law, and sufficient to deal appropriately with those who do commit offences”.

Major changes

The Offences Act makes the following key changes to the existing legislation:

  1. Imprisonment will be a possible penalty for most health and safety offences in both the magistrates’ court and the crown court. It will also be a possible penalty for directors and senior managers implicated in an offence committed by a body corporate.
  2. The maximum fine available in the magistrates’ court for regulatory breaches, instead of or in addition to imprisonment, has been increased from £5,000 to £20,000.
  3. Certain offences currently triable only in the magistrates’ court will be triable in either the magistrates’ court or the crown court.

Currently, employees can be prosecuted for a breach of section 7 of the Health and Safety at Work Act. This statutory provision places a duty on employees to take reasonable care for themselves and others affected by their acts or omissions. In addition, senior managers and directors can be convicted under section 37 where it can be proved that an offence by the company was committed with their consent, connivance or attributable to some neglect on their part. In future, individuals convicted of such offences face the risk of going to jail.

This is not the first time that such legislation has been proposed. There have been three previous attempts to introduce almost identically worded private members’ bills since 1999, when the government introduced its Revitalising Health and Safety strategy, which recommended new penalties for offences. However, these earlier attempts failed because the government did not provide sufficient parliamentary support or, crucially, time. There were also objections to the principle of the legislation. The difference this time was that the government gave time for the offences bill, which enjoyed all-party support.

Need for reform

In a letter accompanying the offences bill, the government explained that the law needed to be reformed so as to bring health and safety offences into line with regulatory offences in other areas. It was strange, the letter concluded, that people could go to prison for breaches of environmental, trading standards, planning, water resources and food safety rules but not for health and safety offences.

This is something the courts have long recognised. For example, as long ago as 1994, in the case of R v Baldwin Industrial Services Ltd, Judge Bathurst Norman (sitting at Isleworth Crown Court) said of Mr Baldwin, a company director: “I make no secret of the fact that were prison an option that was open to me today, you would be going to prison... I hope that one day [parliament] will look again at this legislation and will amend it so that the sentencing judge has available to him the option of a custodial sentence”.

Perhaps the biggest surprise is that it has taken 14 years for the judge’s aspiration to be realised.

In the letter accompanying the offences bill, the government cited (as examples of health and safety breaches possibly meriting custodial sentences) cases where an employer illegally employed children for the removal of asbestos, or where there was deliberate fabrication of test certificates for cranes and other machinery. Most reasonable observers would agree that this type of conduct should carry the possibility of imprisonment on conviction. However, it is vitally important to get the details right, so that the Offences Act can be fairly and equitably enforced. Imprisonment should therefore be reserved for the most serious of cases where there is evidence either of wilful conduct or a flagrant or reckless disregard for safety.

Reverse burden of proof

There is also one significant difficulty with the Offences Act that had not until recently been addressed. The offence for senior managers and directors under section 37 is based on the prosecution being able to prove that a defendant consented to, connived in or (by neglect) caused the commission of the offence by their company. The main offences usually prosecuted against companies are for breaches of sections 2 and 3 of the HSWA. Both of these provisions contain a reverse burden – set out at section 40 – meaning that, once a risk has been established, a company effectively has to prove its innocence by showing that it took all reasonably practicable steps to ensure safety.

According to the explanatory notes to the offences bill, the Department for Work and Pensions considers that making imprisonment available for an offence to which the reverse burden of proof applies is compatible with article 6 of the European Convention on Human Rights (i.e. the right to be treated as innocent until proven guilty).

This was a little difficult to understand. The difference in evidential burden creates a presumption of guilt rather than one of innocence. In this context, the use of imprisonment as a penalty appears at first glance to be both contrary to the principles of justice under the British legal system as well as against the European Convention on Human Rights.

In R v Davies [2002] EWCA Crim 2949, the Court of Appeal considered the compatibility of the section 40 reverse burden with the ECHR. The defendant in that case argued that, unless the reverse burden was an evidential burden alone, it would not be compatible with the presumption of innocence in article 6.2 of the ECHR. The Court of Appeal rejected this argument, concluding that the burden was a legal or persuasive burden and justified, necessary or proportionate in the context of the Convention. However, the court reached this view on the basis that the health and safety legislation was regulatory rather than “truly criminal”, in part because breach of the relevant sections of the HSWA did not carry a risk of imprisonment.

By making the HSWA breach “truly criminal”, the new Offences Act had therefore partially undermined the rationale of the Court of Appeal’s decision that section 40 was compatible with the ECHR. This could easily have been corrected by imposing a specific duty on a director to take reasonable care for people who may be affected by his or her work, similar to the duty on employees under section 7. The entirety of the offence could then have been subject to proof to the usual criminal standard of beyond all reasonable doubt.

A decision of the House of Lords in December 2008, however, in the case of R v Chargot Ltd [2008] UKHL 73, is likely to mean that senior managers and directors charged with involvement in offences committed by their companies may now struggle to challenge the section 40 reverse burden. In the leading judgment in that case, Lord Hope revisited the Court of Appeal’s rationale in R v Davies and confirmed that it had reached the right decision. Further, he went on:

“The penalties that may be imposed on an individual have now been increased… But I do not think that, when account is taken of the purposes that this legislation is intended to serve, this alteration to the law renders what was previously proportionate disproportionate… On the contrary, it emphasises the importance that is attached, in the public interest, to the performance of the duty that section 37 imposes on the officer”.

So the House of Lords has now given a steer on the point. Whether or not that steer is clear and unambiguous is perhaps open to argument.

Conclusion

From January 2009, the Offences Act will have a significant impact on the liability of directors and officers in the UK, as well as on employees. Up to now, most health and safety offences under the HSWA could only be punished with a fine. Now directors and other company officers (along with all employees) face the possibility of imprisonment for such a breach of duty. This threat to their liberty is likely to make them seek to fight allegations of failure even more fiercely than previously, notwithstanding the fact that one potential “legal” argument may no longer be entirely open to them. It is also now important more than ever for directors and company officers to have proper insurance provision for their health and safety liability.

Finally, while the principle behind the Offences Act can generally be supported, the withdrawal of an individual’s right of liberty is such a serious penalty that there should, at the very least, be clear sentencing guidance stressing that imprisonment must be imposed only in the very worst cases.

The Health and Safety (Offences) Act covers offences committed after 16 January 2009.