Member Article

We are increasingly being asked: “Is it more likely that individuals rather than companies will be prosecuted under the new Health and Safety Offences Act 2008?”. The new Act, which came into force in January 2009, did not introduce any further duties on either organisations or individuals, but it did dramatically increase the penalties that can be imposed for breaches of existing health and safety legislation.

With an increase in the level of fine and the option of imprisonment, will the enforcing authorities be more inclined to pursue individuals rather than companies?

The tests

When deciding whether to bring proceedings against a company or individual, the regulatory authority will need to ensure that any such prosecution can pass two tests: evidential and public interest.

The evidential test

This is the first stage. The prosecution cannot go ahead, no matter how strong the public interest is in flavour of prosecution, if the evidence is not sufficient. Providing there is enough evidence to secure a realistic prospect of conviction, the authority must then satisfy itself that it is in the public interest to bring the prosecution.

The public interest test

There are a number of factors to consider when determining whether the prosecution is in the public interest. One common public interest factor is the more serious the offence, the more likely it is that a prosecution will be required, especially if a conviction is likely to result in a significant sentence. In respect of fines, one area for debate is whether the new Act will actually result in more significant sentences. The maximum fine that can be imposed in the magistrates court, for most health and safety offences, has been increased from £5,000 to £20,000. By giving magistrates these additional sentencing powers, it may lead to more cases being retained by them, which is likely to result in higher average fines in the magistrates court. If fewer cases are committed to the Crown Court then there may be fewer large headline fines but total fines may remain constant.

Does this increased sentencing power mean that it is now more in the public interest to bring a prosecution?

It has been reported repeatedly that there is a positive trend towards personal prosecution. The new Act can only accentuate this trend. At a recent meeting of the Health and Safety Lawyers Association, Richard Matthews, Standing Counsel to the HSE, said it was his view there would be more personal prosecutions due to the increase in penalties, and the fact that it is now more likely that personal prosecutions will meet the public interest test, where they would not have done before. Previously, when the only penalty was a fine, it was considered less likely to be in the public interest to pursue a prosecution. However, the risk of imprisonment increases the significance of any likely sentence, which in turn makes it easier to pass the public interest test. In the current economic climate regulators are going to be cautious to pursue companies where a financial penalty may put the company out of business, leading to redundancies.

Our view is that they will look to the culpability of individuals and senior managers.

What will be the level of the potential fines?

The Sentencing Guidelines Council is yet to issue published guidelines on the likely penalties for breaches of the Corporate Manslaughter and Corporate Homicide Act 2007. And it is still unclear whether the guidelines will extend to breaches of other health and safety offences.

A recent case in Scotland saw a company’s fine increase from what the prosecution called an unduly lenient fine of £3,750, to £30,000. When increasing the fine, the court took into account the sentencing guidelines consultation document, and held that the sentencing judge took inadequate account of the nature of the offence itself and the need for appropriate punishment in the public interest. 2009 should see the fruits of these two Acts and significant further development in this area. We anticipate that the regulatory authorities may seek to sharpen their new teeth on a business near you...