Following all the fanfare surrounding the introduction of the new Corporate Manslaughter Act in April, which introduces no new offences against individuals and does not include imprisonment as a sentencing option, it seems strange that so little attention has been given to a Private Members Bill making its way through Parliament which would result in the possibility of individuals being sent to prison for breaches of the Health and Safety at Work Act.
The purpose of the Health & Safety (Offences) Bill is to raise the maximum penalties available to the courts and would make the following key changes to the existing legislation:
- Make imprisonment a penalty for more health and safety offences in both lower and higher courts and make imprisonment a penalty for an offence committed by a body corporate.
- Raise the maximum fine available in lower courts for breaches of Regulations from £5000 to £20,000.
- Make certain offences, which are currently triable only in lower courts triable in either lower or higher courts
Currently, employees can be prosecuted for a breach of s7 of the Health and Safety at Work Act. S7 places a burden on employees to take reasonable care for themselves and others affected by their acts or omissions. In addition, senior managers and Directors can be guilty of an offence under s37 where it can be proved that an offence by their company was committed with their consent, connivance or was attributable to some neglect on their part.
In the future, individuals convicted of these offences will face the risk of imprisonment as a sentence.
This is not the first time that there has such a Bill. Indeed, 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, previous attempts have failed because the Government has not provided sufficient parliamentary time and there have been objections to the principle of the Bill. The difference this time is that the Government has been giving time for the Bill, it has all party support, and most importantly, now the support of the Government.
In a recent letter regarding the Bill, the Government explained that it felt that the law needs to be reformed to bring health and safety offences in line with other regulatory offences. It does seem somewhat bizarre that individuals can go to prison for breaches of environmental legislation, trading standards, planning, water resources and food safety law, yet the option has not been there for an individual convicted of a health and safety offence.
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 that 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”
The main surprise may be that it has taken 14 years for it to happen. In general, therefore, the principle of the Bill can be supported.
In the recent letter, the Government uses as examples of cases, an employer illegally employing children for the removal of asbestos and the deliberate fabrication of test certificates for cranes and other machinery. These types of offences probably should carry the option of imprisonment for conviction. However, it is vitally important to get the details right so that the Bill 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.
There is also one significant difficulty with the Bill, which has not been resolved. The offence for senior managers and directors under s37 is based upon the Prosecution being able to prove that they consented, connived or neglected in an offence by their company. The main offences usually prosecuted against companies are for breaches of s2 and s3 of the HSWA. Both of these contain a reverse burden, set out at s40, meaning that once a risk has been established, a company has effectively to prove its innocence by showing that it took all reasonably practicable steps.
The explanatory notes to the Bill state that the Department for Work and Pensions is of the opinion 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 namely, the right to be treated as innocent until proven guilty.
This is extremely difficult to understand. This difference in evidential burden attribution creates a presumption of guilt rather than one of innocence. In this context the use of imprisonment as a penalty appears to be both contrary to the fundamental principles of justice under the British legal system as well as contrary to the European Convention on Human Rights.
In R v Davies  EWCA Crim 2949 the Court of Appeal considered the compatibility of section 40 HSWA (the reverse burden) with the ECHR. In this case the Defendant 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 finding 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.
The proposed Bill would, therefore, fundamentally undermine the rationale of the Court of Appeal’s decision that section 40 was compatible with the ECHR by making the breach ‘truly criminal’.
This could easily be corrected by introducing a specific duty on a Director to take reasonable care for persons who may be affected by his work, similar to the duty on employees under s7. The offence could then be proven to the usual criminal standard namely the presentation proving beyond all reasonable doubt that the Director has failed in this duty.
It is not clear currently whether these proposals will become law but they are already substantially through Parliament and there is a strong possibility that the Bill will be enacted. If it is, then this will have a significant impact on the liability of directors and officers in the UK, as well as employees. Up to now, most health and safety offences under the HSWA could only be punished with a fine. If enacted, Directors and other company officers will face the possibility of imprisonment for such a breach of duty. This is turn is likely to make them want to fight allegations of failure even more so than now because their liberty may be at stake. It will make it even more important for Directors and Officers to have proper insurance provision for their liability for health and safety.
In addition, the issues of the reverse burden for s37 offences needs to be urgently considered and resolved.
In conclusion, whilst the principle of the Bill can probably 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 issued with the Bill to the effect that the use of imprisonment should only be in the very worst cases.