We last updated you on the Offences Act in our September Briefing, at which time it was a Private Members Bill still making its way through the parliamentary process. After a relatively speedy passage, the Offences Act received Royal Assent last month and Explanatory Notes to the Act were published last week.  

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 is surprising that so little attention has been given to the Offences Act which gives rise to the possibility of individuals being sent to prison for breaches of the Health and Safety at Work Act.  

The purpose of the Offences Act is to raise the maximum penalties available to the courts for certain health and safety offences. The Notes to the Offences Act states that the objective of the changes it introduces 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”

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 and will also be a possible penalty for an offence committed by a body corporate,
  1.  The maximum fine available in the Magistrates’ Court for breaches of Regulations will be increased from £5000 to £20,000,
  1. Certain offences, which are 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 s7 of the Health and Safety at Work Act. s7 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 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 such legislation has been proposed. 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 failed because the Government did not provide sufficient parliamentary support and, crucially, time and there have been objections to the principle of the legislation. The difference this time was that the Government gave time for the Offences Bill, it had all party support, and most importantly, the support of the Government.

In a letter regarding the Offences Bill, the Government explained that it felt that the law needed to be reformed to bring health and safety offences in line with other regulatory offences. It did seem strange that individuals could go to prison for breaches of environmental, trading standards, planning, water resources and food safety law, yet the potential was not 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 [sic] 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”

In the circumstances, perhaps the main surprise is that it has taken 14 years for the Judge’s aspiration to be realised.  

In the letter to accompany the Offences Bill, the Government used 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. Most of us would probably agree that this type of conduct should carry the option of imprisonment for 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.  

There is also one significant difficulty with the Offences Act, 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 to ensure safety.  

The explanatory notes to the Offences Bill stated that the Department for Work and Pensions was 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 difficult to understand. The 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 principles of justice under the British legal system as well as contrary to the European Convention on Human Rights.  

In R v Davies [2002] EWCA Crim 2949, the Court of Appeal considered the compatibility of s40 HSWA (the 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 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 Offences Act does, therefore, fundamentally undermine the rationale of the Court of Appeal’s decision that s40 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, i.e. beyond all reasonable doubt.  

Conclusion  

From January next year, the Offences Act 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 in 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 will need to be resolved, whether by further legislation or through judicial decisions. Finally, whilst 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 issued to the effect that the penalty of imprisonment should be reserved for only the very worst cases.  

The Health and Safety (Offences) Act will apply to offences committed after 16 January 2009.