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  Crime and punishment: Do the proposed new penalties for health and safety offences fit the crime? asks British Safety Council

16  February  2015

  In a recent presentation, Neal Stone, Acting Chief Executive of the British Safety Council addressed the issues:-

"The main theme of my presentation is the issue of ‘crime and punishment’ concerning those organisations and individuals who break the law – specifically health and safety law.

The issue revolves around the level of fines that are appropriate who are prosecuted, convicted and punished for breaking the law. The Sentencing Council comprising representatives from the judiciary, magistracy, practicing lawyers and academics are currently consulting on new guidelines on sentencing for higher courts in England and Wales with the aim of delivering greater consistency. The consultation document can be accessed at www.sentencingcouncil.org.uk/consultations/

But first I would like to say a few words about the British Safety Council. We were founded as a charity some 58 years ago. Our founder, James Tye, the feature of a One Show piece last Autumn, wanted to see a sea change in the prevention of workplace injuries and ill health occurrences and was an ardent campaigner for tougher laws and a massive improvement in the management of risks in the workplace and wider society.

We have some 6,000 corporate members mainly in the UK but also in the Middle East and India. Our vision is that no one should be injured or made ill at work. We provide a range of products and services concerning health, safety and the environment – these are delivered with the aim of improving the competence of organisations to prevent ill health and injury.

Our activities include seeking to influence thinking, policy and law concerning health and safety. This is what our members expect of us, that is, trying to influence Government and the regulator. We believe in proportionate and sensible health and safety. Properly managed and regulated workplace health and safety can be an enable rather than as some see it as an impediment or an obstacle.

We use our public voice to get across the argument that good health and safety produces real benefit for society, organisations and individuals. Our review of the business benefits of health and safety – see www.britsafe.org/news/save-lives-save-money-business-benefits-health-and-safety - cites extensive evidence gathered by respected experts and institutions over the past twenty years that show informed and targeted interventions in workplace health and safety produce tangible and measurable benefits.

We and our members have been active over many years, and the last four years in particular, in setting out our views on our legal framework to countless Government and HSE consultations including Lord Young’s review, Professor Ragnar Löfstedt’s review and the review of HSE’s role and operation led by EEF Chair Martin Temple.

For the record the British Safety Council and our member organisations overwhelmingly believe that our regulatory framework for workplace health and safety is effective and that the main regulator, HSE, is carrying out its statutory responsibilities well. The thinly veiled political attacks on particular aspects of our regulatory framework, under the guise of easing the burdens on business, are myopic and unjustified.

What HSE statistics show is that there have been considerable improvements in GB’s performance in cutting injuries and ill health occurrences over the last forty years, that is, since the enactment of the Health and Safety at Work Act 1974.

While there has been a significant reduction in fatal injuries over the last forty years, from almost a thousand a year to 133 in 2013/2014, we do need to look at the totality of the statistics. It is estimated that 13,000 people are dying each year in Great Britain as a result of occupational disease. An estimated 2 million people are suffering from an illness they believe was caused or made worse by work.

Our members agreed with the introduction by HSE of ‘Fee for Intervention’, that is, the recovery of HSE’s enforcement costs from duty holders as employers who are found to have been in breach of health and safety law. Those who break the law, in their and our opinion, should bear the cost of enforcement.

The central question today is this. Does punishment, including fines and even imprisonment, serve an important role in deterring wrong-doing? Let’s keep a sense of proportion about the real extent to which criminal prosecutions are used for breaches of health and safety law.

As the Sentencing Council’s consultative proposals note, only 420 offenders were sentenced for health and safety offences in England and Wales in 2013. We have seen an increase in the level of fines imposed for the most serious offences over the last six years since the enactment of the Health and Safety (Offences) Act in 2008. However concerns remain about inappropriate small fines.

The Lord Chief Justice, Lord Thomas, set out a clear marker in the case of R v Sellafield and Network Rail, where both organisations were appealing against “excessive” fines, that the level of fines imposed by higher courts in serious cases involving large organisations were not excessive ... probably quite the opposite. Something had to be done.

The consultation document, which runs to 122 pages, poses 33 separate questions concerning sentencing for health and safety offences and for corporate manslaughter. The document makes the case for clearer guidelines with the argument for a comprehensible framework for categorising culpability and harm.

In the introduction to the consultative document the Sentencing Council recognised, “.. that speaking to sentencers around the country that, as a result of the relative infrequency with which magistrates and judges sentence these cases, there was a lack of familiarity with them..... The Council identifies some inconsistency in how various factors were weighted and applied in reaching sentencing decisions across the country.” (see www.sentencingcouncil.org.uk/consultations/)

The Council went on to acknowledge past criticism, “that fines imposed on organisations for health and safety offences were too low relative to the harm caused, the culpability of the offender and, on occasions, the means of the offender.”  

The suggested sentencing guidelines are as follows:

• for micro organisations (turnover of less than £2million pa) the level of fines should range from £50 for low culpability where harm was remote to £450,000 where there was very high culpability and very serious harm

• for small organisations (turnover between £2million and £10 million pa) the level of fines should range from £100 for low culpability where harm was remote to £1.6 million where there was very high culpability and very serious harm

• for medium organisations (turnover of between £10 million and £50 million pa) the level of fines should range from £1,000 for low culpability where harm was remote to £4 million where there was very high culpability and very serious harm

• for large and very large organisations (turnover over £50 million pa) the level of fines should range from £3,000 for low culpability where harm was remote to £10 million where there was very high culpability and very serious harm

We have surveyed our members on the sentencing proposals. 195 responded. There was overwhelming support from our respondents for culpability and seriousness of harm to be key factors in determining the level of fines.

Concerns were raised by some respondents that higher level fines could result in businesses having to close with the consequent loss of employment.

But there were respondents who saw this as the price that organisations must pay for serious wrong-doing, “The higher level fine, resulting in the closure of the business, may be justified in certain circumstances in the public interest.”

We are in the process of formulating our response to the 33 questions posed concerning health and safety offences. The question for us is what will be the effect of the proposed changes to sentencing practice. Are deterrence and punishment the main aims of sentencing?

I refer to one HSE press release as illustrative of the complexity of sentencing.

A Lincolnshire agricultural machinery manufacturer has been fined after employees were put at risk of developing asthma through the spraying of a hazardous chemical.

Grantham Magistrates’ Court heard in October 2013 ) that Marston Agricultural Services Ltd allowed trailers to be sprayed with isocyanate-containing paint without fully assessing the potential dangers and implementing adequate controls to protect workers from the effects of the chemical. My question is what level of fine do you thinks was imposed. See press.hse.gov.uk/2013/lincolnshire-agricultural-firm-in-court-for-safety-failings/ As HSE noted, “continued exposure may lead to permanent and severe asthma for which there is no cure.”

Marston Agricultural Services Ltd, of Toll Bar Road, Marston, Grantham, was fined £10,000 and ordered to pay a further £13,420 in costs after pleading guilty to breaching Section 2(1) of the Health and Safety at Work etc Act 1974.

Was that the appropriate level of fine?

In conclusion the full text of our submission to the Sentencing Council will be posted in the Policy section of the British Safety Council website."

For more information, please visit: www.britsafe.org
   
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