We have reviewed reports of prosecutions in this industry over the past year, during which there has been a significant increase in the number of prosecutions brought under the Construction (Design and Management) Regulations ("CDM") (for both the 2007 and 2015 versions).

Fig. 1 CDM 2007 and CDM 2015 Prosecutions

In 2016, CDM 2007 prosecutions were more common than their 2015 re-incarnation, which is understandable given it was always going to take time for prosecutions under the 2015 Regulations to come though.

Prosecutions over the past year, under both CDM 2007 and CDM 2015 were focussed upon Principal Contractors ("PCs") and Sub-Contractors ("SCs"), most notably upon a failure to plan, manage and monitor the work being undertaken. Indeed, a total of 42 prosecutions during 2017 encompassed a breach by either a PC or SC:

Fig. 2 CDM 2007 and CDM 2015 Principal and Sub-Contractor prosecutions

Of the 46 prosecutions over the past year, only 4 did not involve either a PC or SC and none of those 4 cases involved the prosecution of a Principal Designer.

Work at height continued to be the most prolific source of prosecutions, with nearly half of all CDM cases in 2017 involving either unsafe work or falls from height.

Most significantly for duty holders, there appears to be an increasing level of punishment for such offences. 22 of the 46 prosecutions last year resulted in fines of £100,000 or over. This should be partly attributed to the continued effect of the health and safety sentencing guidelines, following their February 2016 inception. However, construction duty holders must also view this as a metaphorical red flag from the courts, which appear to be taking an increasingly dim view of breaches of the CDM regulations.

It is also clear that the HSE are becoming more adept at enforcing CDM 2015. The figures for this past year illustrate that CDM 2007 investigations are still concluding, although the number of prosecutions under this legislation have diminished and should continue to do so over the coming year. Conversely, the proportion of CDM 2015 prosecutions should be expected to rise during 2018.

What messages should the construction industry take from these statistics? The increasing number of prosecutions and fines for CDM 2015 breaches means that companies must take prosecutions extremely seriously and devote time to work with their legal representatives in preparing a case. With the heightened impact of the sentencing guidelines, cases where a company is pleading "guilty" should also not be neglected by senior management when preparing for sentence. In addition, the marked focus of PC and SC prosecutions should serve to highlight the paramount importance of planning, managing and monitoring construction projects.