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R
v Howe and son (Engineers) Ltd
Extract from decision
We turn next to make some general observations about
cases of this nature. First, the employers general duties
under the Health and Safety Act are qualified by taking
steps so far as is reasonably practicable. Thus the
law requires employers to do what good management and
common-sense requires them to do anyway i.e. look at
what the risks are and take sensible measures to tackle
them. Failure to fulfil the general duties under the
Act are particularly serious as those duties are the
foundations for protecting health and safety.
In the early 90's Parliament introduced the exemplary
maximum fine of £20,000 for breach of the general
duties under sections 2-6 of the Act where the offence
is dealt with summarily. Following this the average
fine in the magistrates courts (per offence prosecuted)
for breaches of the general duties increased from £844
to £2110 in 1992/93 and this has since risen to
£6223, but it is still less than one third of
the maximum. And almost half the fines in magistrates
courts for these offences in 1997/98 was below one quarter
of the maximum of £20,000. In the Crown Court
where the level of fine is unlimited the 1997/98 average
fine per offence was £17,768.
Disquiet has been expressed in several quarters that
the level of fine for health and safety offences is
too low. We think there is force in this and that the
figures with which we have been supplied support the
concern. There has been increasing recognition in recent
years of the seriousness of health and safety offences.
The circumstances of individual cases will, of course,
vary almost infinitely and very few cases have reached
this court. Accordingly it is difficult for judges and
magistrates, who only rarely deal with these cases,
to have an instinctive feel for the appropriate level
of penalty.
We shall endeavour to outline some of the relevant factors
that should be taken into account. In doing so we emphasise
that it is impossible to lay down any tariff or to say
that the fine should bear any specific relationship
to the turnover or net profit of the defendant. Each
case must be dealt with according to its own particular
circumstances.
In assessing the gravity of the breach it is often helpful
to look at how far short of the appropriate standard
the defendant fell in failing to meet the reasonably
practicable test.
Next, it is often a matter of chance whether death or
serious injury results from even a serious breach. Generally
where death is the consequence of a criminal act it
is regarded as an aggravating feature of the offence.
The penalty should reflect public disquiet at the unnecessary
loss of life.
Financial profit can often be made at the expense of
proper action to protect employees and the public. Cost
cutting is a crucial tool in achieving a competitive
edge. A deliberate breach of the health and safety legislation
with a view to profit seriously aggravates the offence.
There is some evidence that safety standards in small
organisations may generally be lower than in larger
ones and that proportionately more accidents occur in
companies with less than fifty employees than those
with a large staff. We wish to emphasise that the standard
of care imposed by the legislation is the same regardless
of the size of the company. A man who, for example,
works with a circular saw should be no less safe if
he works for company A than for company B. The size
of a company and its financial strength or weakness
cannot affect the degree of care that is required in
matters of safety. Otherwise the employee of a small
concern would be liable to find himself at greater risk
than the employee of a large one. How an individual
company discharges its health and safety obligations
will depend on the particular circumstances. A large
organisation with a health and safety department will
approach matters differently from a smaller one with
perhaps one safety officer or none at all. Those organisations
who do not have their own expertise in house can obtain
it, if necessary by seeking assistance from the Health
and Safety Executive.
Other matters that may be relevant to sentence are the
degree of risk and extent of the danger created by the
offence; the extent of the breach or breaches, for example
whether it was an isolated incident or continued over
a period and, importantly, the defendant's resources
and the effect of the fine on its business..
Particular aggravating features will include (1) a failure
to heed warnings and (2) where the defendant has deliberately
profited financially from a failure to take necessary
health and safety steps or specifically run a risk to
save money.
Particular mitigating features will include (1) prompt
admission of responsibility and a timely plea of guilty,
(2) steps to remedy deficiencies after they are drawn
to the defendants attention and (3) a good safety record.
Any fine should reflect not only the gravity of the
offence but also the means of the offender, and this
applies just as much to corporate defendants as to any
other. See section 18 (3) Criminal Justice Act 1991.
Difficulty is sometimes found in obtaining timely and
accurate information about a corporate defendant's means.
The starting point is its annual accounts. If a defendant
company wishes to make any submission to the court about
its ability to pay a fine it should supply copies of
its accounts and any other financial information on
which it intends to rely in good time before the hearing
both to the court and to the prosecution. This will
give the prosecution the opportunity to assist the court
should the court wish it. Usually accounts need to be
considered with some care to avoid reaching a superficial
and perhaps erroneous conclusion. Where accounts or
other financial information are deliberately not supplied
the court will be entitled to conclude that the company
is in a position to pay any financial penalty it is
minded to impose. Where the relevant information is
provided late it may be desirable for sentence to be
adjourned, if necessary at the defendant's expense,
so as to avoid the risk of the court taking what it
is told at face value and imposing an inadequate penalty.
The objective of prosecutions for health and safety
offences in the work place is to achieve a safe environment
for those who work there and for other members of the
public who may be affected. A fine needs to be large
enough to bring that message home where the defendant
is a company not only to those who manage it but also
to its shareholders.
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