Home
About
Newsletter
Advice & Assistance
Researh & Briefings
Deaths, Inquests & Prosecutions
Corporate  Crime & safety Database
Safety Statistics
Obtaining Safety Information
CCA Responses to Consultation Documents
CCA Advocacy
CCA Press Releases
CCA Publications
Support the CCA
Bibliography
Search the CCA site
Contact Us
Quick Links ->
STATISTICAL AUDIT OF THE HSE

Conclusion and Analysis: Enforcement Action

Chapters three and four looked at the extent to which inspectors use notices and prosecutions following inspections and investigations.

Notices and prosecutions serve different functions. The primary purpose of notices (and the provision of oral/written advice) is ‘preventative’ - that is, to ensure that changes are made that will reduce the risk of death, injury or disease in the future. The primary purpose of prosecution, however, is to ensure that an organisation or individual is held ‘to account’ for a criminal offence that has been committed – though, of course, the threat of a prosecution can, theoretically, have an important deterrent impact upon other organisations and individuals. It is therefore perfectly reasonable for an inspection or investigation to result in the imposition of both a notice and a prosecution.

Notices

Prosecutions
Prosecution Levels
Can low levels of prosecution be justified?
HSE’s New Prosecution Policies
Prosecution Criteria and the New Enforcement Policy Statement
Prosecutions and Prevention
Prosecutions against Directors and Managers
HSE’s New Enforcement Management Model
Referral to the Crown Court

Notices
In order to impose an Improvement Notice the inspector must be of the view that there has been a contravention of a provision of health and safety law. The notice will state that particular changes must be made within a particular time period. A prohibition notice can be imposed when an inspector is of the view that there is or will be a risk of serious injury. Technically, a Prohibition Notice does not require a breach of health and safety law, though, in practice, this will usually be the case. It is of course possible that an improvement and a prohibition notice can be imposed in relation to the same incident.
However, the fact there has been a breach of the law, or indeed a risk of serious injury, does not mean that an inspector must impose a notice; an inspector has discretion to simply provide oral or written advice.

Chapter three shows that in the five year period, the number of notices has increased by 42.4% from 3,721 to 6462. The number of prohibition notices has also increased, but by much less – an increase of 16% from 3,605 to 4,315. It is not clear what this increase represents – whether an increased willingness by inspectors to impose notices rather simply provide oral/written advice or an increase in the number of investigations. In its evidence to the Select Committee, the HSE said in late 1999 that "we do not set targets for issuing notices but we expect the upward trend to continue" .

In the five years covered by this audit, FOD inspectors have had no formal guidance about how to use this discretion. This is now changing with the publication of the Enforcement Management Model.

Back to Top

Prosecutions

The other response to a breach of health and safety law is a prosecution. Companies, organisations and individuals can be prosecuted for failing to comply with safety duties imposed upon them either by statutes (for example, Health and Safety at Work Act 1974) or by regulations (for example, the Management of Health and Safety at Work Regulations 1992). Most prosecutions concern breaches of section 2 or 3 of the 1974 Act which impose general duties upon employers (in relation to the provision of training, instruction, equipment and so on) to take "all reasonable and practicable care" in relation to the safety of their employees or others affected by their activities.

Over the years, the HSE has been subject to criticism about its prosecution record in relation to two main issues:

failures to prosecute a company, organisation and in particular individuals in circumstances where prosecution appears to be justified – particularly in relation to a death or injury;
failing to make appropriate attempts to ensure that a magistrate refers a case to a crown court for sentencing


It should be noted of course that in Scotland, it is the Procurator Fiscal (not the HSE) which decides whether or not to prosecute.

Back to Top

Prosecution Levels

In relation to the levels of prosecution, the HSE has never asserted that its inspectors would prosecute whenever an offence had been uncovered and when there is sufficient evidence to prosecute. In its view, the conduct in question or the circumstances surrounding the conduct had to be serious enough to justify prosecution. There is some sense to this policy: it could well be untenable if inspectors had to prosecute whenever an offence was identified and would mean, for example, that they would have to prosecute in most cases where an improvement notice was imposed . However, this obviously does raise the question of what conduct and what circumstances do, as far as the HSE is concerned, justify prosecution?

In 1995, the Health and Safety Commission published an Enforcement Policy Statement – which amongst other things, set out the circumstances when HSE inspectors should "consider" prosecution (see box). This statement applied during the whole five year period for which this audit is concerned.

These ‘circumstances’ have been criticised for being unduly vague and difficult to apply to individual cases . It is easy to argue, for example, that in relation to almost every breach either (i) "[prosecution] is appropriate in the circumstances as a way to draw general attention to the need for compliance with the law and maintenance of standards required by law", or (ii) that "there would be a normal expectation that a prosecution would be taken" or (iii) "through the conviction of offenders, others may be deterred from similar failures to comply with the law".

This paragraph is also circular: it states that prosecution should be considered "where there would be a normal expectation that a prosecution would be taken", but does not state what factors should exist for there to be a "normal expectation" of a prosecution.

The lack of director allowed inspectors great latitude about when, and when not, to prosecute. It provided an opportunity for extraneous issues – like the level of available resources and inspector time - to dictate when prosecutions did and did not take place.

Chapter Four shows that the levels of prosecution after reported incidents is low. Over the whole three year period under consideration – 1996/7 to 1998/9 – prosecution took place after only:
• 231 of the 789 investigated worker deaths (29%);
• 797 of the 7982 investigated major injuries to workers (10%);
• 112 of the 2825 investigated dangerous occurrences (4%).

The question is to what extent the reason for the low level of prosecution is due to (a) there being insufficient evidence to justify prosecution; or (b) due to the fact, that even though there is sufficient evidence, the cases fall outside the "circumstances" set out in the Enforcement Policy Statement that justify prosecution; or (c) other extraneous factors.

Back to Top

Can low levels of prosecution be justified?
Since it is FOD inspectors who undertake the investigations and keep the evidence, it is difficult to assess in how many cases of deaths, major injuries or dangerous occurrences, there is sufficient evidence to prosecute. The lack of judicial reviews (yet alone successful ones) concerning HSE failures to prosecute can not be taken as an indication of the correctness of HSE decisions since there is no tradition of compensation lawyers considering whether judicial reviews of prosecution decisions are appropriate.

However it is interesting to note that in the three years of prosecution data analysed in this audit the numbers of incidents that have resulted in prosecution has increased:
• deaths to workers: 23% to 34%
• deaths to members of the public: 5% to 9.3%
• major injuries to workers: 8% to 11%
• major injuries to public: 2% to 6%
• dangerous occurrences: 3% to 4.2%

It is unlikely that there has, within this period, been a sudden increase in the number of incidents where sufficient evidence exists; the rise is much more likely to be explained by the fact that inspectors are now prosecuting in circumstances where in the past they did not. In effect that the reason for the low level of prosecution (at least in 1996/7) was not due to insufficient evidence but other non-evidential factors.

It also worthwhile pointing out the differences in prosecution rate subsequent to investigation into reported incidents - deaths (34%), major injuries (11%) and dangerous occurrences (4.2%). Why should it be the case that the level of worker deaths resulting in prosecution is three times the number of prosecutions following major injury investigations and almost eight times the number after investigations into dangerous occurrences? This disparity could of course be explained if the average levels of organisational culpability depended on the type of incident - whether it be a death, major injury or dangerous occurrence. However there is no reason why this should be the case. It would be much more likely to expect that the level of prosecutions following major injuries and dangerous occurrences to be similar to that following deaths – that is close to 30% in 2000/01 - and the fact that this is not the case must be an indication that factors other than lack of evidence are intruding.

Although there is very little independent evidence to indicate what, on average, should be the approximate level of prosecutions following reported incidents, the evidence that does exist does supports the contention that at least, as far as deaths are concerned, the percentage should be higher than at present. HSE’s research in the late 1980’s indicated that 70% of deaths in agriculture and construction were the result of ‘management failure’. This does not necessarily mean that 70% of the deaths should result in prosecution since it is not clear what the HSE meant by ‘management failure’. However it certainly does indicate that a figure closer to 70% would be appropriate for prosecution. In addition, research by the West Midlands Health and Safety Advice Centre also indicated that there was sufficient evidence in 70% of West Midlands deaths (between 1988 and 1992) for a health and safety prosecution to have taken place.

One must assume, therefore, that either the incidents are not being adequately investigated or that FOD inspectors must have considered the cases to have fallen outside the criteria of the Enforcement Policy Statement, or there are other reasons for the low level of prosecution. In relation to the first argument, it is simply not possible for us to know how adequate the investigations were into these incidents. In relation to the second, it is difficult to see how FOD could justify non-prosecution – assuming sufficient evidence existed - in relation to any case involving death or major injury, since the Statement says prosecution should be considered when "there is judged to have been potential for considerable harm arising from breach." It is therefore far more likely that extraneous issues like financial factors have determined levels of prosecution in the years under analysis.

To see HSE’s Response on Prosecution Levels, Click Here

Back to Top

HSE’s New Prosecution Policies
In January 2002, the HSC published a new Enforcement Policy Statement. This includes a much clearer set of criteria for when prosecution – assuming sufficient evidence exist - should take place (see Box). It states, for example, that whenever there is sufficient evidence to prosecute in relation to a death, a prosecution should take place. However the Statement does not have a similar position in relation to major injuries, industrial diseases or dangerous occurrences

Prosecution Criteria and the New Enforcement Policy Statement
Para. 39 sets out when, assuming there is sufficient evidence, it would be ‘expected’ in the public interest for prosecution to ‘normally’ take place. These are where:

‘death was a result of a breach of the legislation;
the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it;
there has been reckless disregard of health and safety requirements;
there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;
work has been carried out without or in serious non-compliance with an appropriate licence or safety case;
a duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk;
there has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a formal cautions;
false information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives risk to significant risk;
inspectors have been intentionally obstructed in the lawful course of their duties.’
The EPS also states at para 40 that, it would also be in the public interest to prosecute if one or more of the following circumstances apply:
‘it is appropriate in the circumstances as a way to draw general attention to the need for compliance with the law and the maintenance of standards required by law, and convictions may deter others from similar failures to comply with the law;
a breach which gives rise to significant risk has continued despite relevant warnings from employees or their representatives, or from others affected by a work activity.’
However, prosecutions will not "normally" take place in the above two circumstances; the enforcing authorities only have to "consider prosecution".

In addition to the new Enforcement Statement, London and South East Region are piloting a new way of dealing with prosecutions. Currently, FOD inspectors (other than those in London and South East) decide themselves whether or not to lay criminal charges against an organisation or individual – without necessarily gaining any assistance from HSE lawyers. Inspectors are also responsible for conducting the case in court – unless it is likely to go to the Crown Court. This practice has been criticised for three main reasons:

since inspectors are responsible for the investigation they should not – for reasons of public policy – be involved in making decisions about prosecution;
inspectors are not necessarily in the best position to evaluate the evidence and determine whether or not a prosecution should take place;
it is very time consuming for inspectors to be involved in the whole process of prosecution – time that could otherwise be use for inspections and investigations.

In 1999, the Select Committee looked into the involvement of lawyers in the prosecution process and concluded that it would not be "in the public interest to replace inspectors with lawyers to prosecute cases in the lower courts, primarily due to the significant resource implications" (see Appendix 4). Instead, they welcomed "HSE proposals to have fewer, better qualified specialist prosecuting inspectors in the lower courts."

However the new Pilot "Prosecution Branch" goes further than what the HSE had initially intended to do. In London and the South East, whenever a Principal Inspector has approved of an inspector’s decision that a prosecution should take place, the case must be referred to the Prosecution Branch, comprised of lawyers. These lawyers will check the evidence and advise the inspector if further enquiries are necessary. The Branch will also, in most cases, take over the prosecution of the case (see appendix)

This pilot project however does not go far enough. If HSE inspectors do not think a prosecution should take place, there is no independent oversight to check whether this is a correct decision. It is not clear why the Pilot has been limited in this manner.

Back to Top

Prosecutions and Prevention

Prosecutions are not just concerned about accountability, as is shown by a recent research report published by the HSE. This made the following conclusion:

"A number of studies shed light on issues surrounding how the HSE achieves maximum impact. Although this was not directly part of our remit it seems sensible to report the main findings, if only in passing. In so doing we look at issues related to the role of regulation and enforcement as a factor motivating employers to take action on health and safety. The evaluations of specific legislation generally concluded that compliance with the law was the most important reason that employers took actions to improve their health and safety practices and procedures (eg Honey et al., 1996b, Lancaster et al. 2001). Hillage et al. (1997) found that among SMEs the threat of prosecution can raise awareness and understanding of workplace risks and can lead to the adoption of better health and safety practices. The two most influential factors identified by Lancaster et al. in their examination of the factors motivating practice health and safety management were the fear of loss of credibility and the belief that it is morally necessary and correct to comply with health and safety regulations. Ashby and Diacon (1996) found that the most influential factors motivating companies to take action to limit the risk of occupational harm were compliance with government health and safety regulations and limiting possible legal liabilities. These were found to be far more influential than business factors such as reducing wage costs or improving productivity. The evidence therefore seems to suggest that there are at least two related factors at work here:
• the fear of being taken to court and/or receiving claims for compensation if found to be in breach of the law;
• the acceptance that the law is an expression of what should be done and that there is a moral duty to meet it.

Back to Top

Prosecutions against Directors and Managers

Another concern about HSE’s prosecution policy relates to the low number of prosecutions against a director or manager.

Individuals can be prosecuted in three main ways
• if the individual is a sole trade or part of a partnership, the person can be prosecuted as the ‘employer’;
• if the individual is a director or senior manager of a company , they can be prosecuted if it can be shown that an offence by the company was the result of that individual person’s neglect or was committed with their consent or connivance or was attributable to their neglect
• if the individual is an employee, that person can be prosecuted for failing to take reasonable care in complying with a duty. This can include a shop floor worker, a manager or indeed a director who is employed by the company.

Paragraph 20 of the 1995 Enforcement Policy Statement stated that:

"enforcing authorities should identify and prosecute or recommend prosecution of individuals, including company director and managers, if they consider that a conviction is warranted and can be secured."

However, the audit shows how rarely prosecutions under section 37 took place – only 34 prosecution in 3 years.

The new Enforcement Policy Statement indicates that there might be a real change in the emphasis that FOD inspector give to this issue. Paragraph 41 states that

‘… enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted. In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so in accordance with this policy. Where appropriate, enforcing authorities should seek disqualification of directors under the Company Directors Disqualification Act 1986.’

We will have to wait and see whether this section results in more prosecutions under section 37.

Back to Top

HSE’s New Enforcement Management Model

In May 2002 – a year after the end of this audit - the HSE launched its ‘Enforcement Management Model’ which is supposed to help guide inspectors in deciding what is the appropriate enforcement action in individual cases and ensure that there is greater consistency in the enforcement action that inspectors take (see appendix 5).

The EMM takes inspectors though a series of risk tables and flow charts which requires the inspector to imput the following information:

the seriousness of any risk identified – in terms of the nature of the harm that could be reasonably expected to occur (serious personal injury, significant injury, minor injury) and the probability of it happening (probable, possible, remote, negligible);
the level of risk that the law allows and the gap between this and the actual level of risk identified by the inspector;
the reason for non-compliance with the law;
whether harm has actually been caused by the non-compliance;
current levels of compliance over a range of health and safety issues
attitude of the duty holder;
previous enforcement action taken against the duty holder;

Dependent on what information is entered, the EMM will then suggest to the inspector that one of the following enforcement actions is appropriate to the circumstances:

•give a verbal warning;
• provide advice in a written form;
• impose a notice;
• prosecute as well as imposing a notice;

FOD requires its inspectors to use the EMM in relation to all decisions involving deaths, major injuries, and prior to making any decision to prosecute (for example in relation to an inspection or other injuries). Line managers will in addition be able to require their inspectors to use the EMM in other circumstances.

It will be interesting to see how this new policy will impact upon enforcement decisions,

Back to Top

Referral to the Crown Court
A further issue concerning HSE’s prosecuting policy relates to the extent to which FOD inspectors have attempted to persuade magistrates that they should refer cases to the Crown court.

Our analysis in Chapter Five showed that whilst in relation to deaths of workers, there has been an increase in the number of cases that were sentenced in the Crown Court over the three year period (from 40% to 60%), in relation to major injuries the level remained at a low 20%.
It is difficult to know whether the increase in the number of worker deaths sentenced in the Crown Court is due to FOD inspectors making increased submissions to the magistrates, or due to a changed attitude of the magistrates themselves, or indeed a combination. During the period under examination, HSE inspectors had not received any guidance as to when they should recommend to the court that, following a guilty plea, whether a case should be sentenced in the Crown court. The new Enforcement Policy Statement however states the following:

"In case of sufficient seriousness, and when given the opportunity, the enforcing authorities in England and Wales should consider indicating to the magistrates that the offence is so serious that they may send it to be heard or sentence in the higher court higher penalties can be imposed."

It does not however state what is a case of "sufficient seriousness".

It is likely that even more cases will result in sentencing in the Crown court. In the 1999 case of R v Howe and Son (Engineer) Ltd, the Court of Appeal stated:

"In our judgment magistrates should always think carefully before accepting jurisdiction in health and safety at work cases, where it is arguable that the fine may exceed the limit of their jurisdiction where death or serious injury has resulted from the offence".

In addition in September 2000 – subsequent to the period under examination - the Magistrates Association published sentencing guidelines for magistrates that stated that "it is important to be careful when accepting jurisdiction as to whether the cases ought properly to be heard in the Crown court. This is especially so when dealing with large companies. … Simple cases can, of course, be dealt with."


Back to Top


Prosecution Criteria from Enforcement Policy Statement (1995-2002)

18 Enforcing authorities must use discretion in deciding whether to initiate a prosecution. Other approaches to enforcement can often promote health and safety more effectively, but where the circumstances warrant it, prosecution without prior warning and recourse to alternative sanctions may be appropriate.
19 The Commission expects that enforcing authorities will consider prosecution when
it is appropriate in the circumstances as a way to draw general attention to the need for compliance with the law and the maintenance of standards required by law, where there would be a normal expectation that a prosecution would be taken or whether, through the conviction of offenders, others may be deterred from similar failures to comply with the law;
or there is judged to have been potential for considerable harm arising from breach;
or the gravity of the offence, taken together with the general record and approach of the offender warrants it, for example apparent reckless disregard for standards, repeated breaches persistent poor standards.-----

.


HSE’s Response on Prosecution Levels
In a letter to us, the HSE stated the following
"We prosecute about one third of cases following a fatality. Decisions not to prosecute following a fatality are now reviewed by our Heads of Operations to ensure inspectors are adhering to the Enforcement Policy Statement. There are a number of factors that influence our prosecutions rates. … [A] few examples may help illustrate the points:

Incident attributed to action of the deceased:

• worker fell in the grain pit under the influence of alcohol.
• self employed window roofing contractors fell off unsecured ladder.

Not in public interest

• Farmer ran over own child on farm

Lack of Evidence

Elderly patient fell down stairs after moving wheel chair forward. No witnesses. Unable to identify any evidence, which indicated that the carer has failed to provide adequate supervision of hadn’t applied brakes.

No Breach identified

Motorway worker struck by a private car whilst working in a coned off area on motorway carriage. Driver prosecuted by police for road traffic offences. No HSE case as no weakness with traffic management or other health and safety issues."
1.

Home -> Research & Briefings -> Government and Regulatory Bodies -> The Health and Safety Executive
Page last updated on June 9, 2003