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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.
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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.
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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.
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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
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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.
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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.
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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,
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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."
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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.----- |
|
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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.
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