This year has seen significant change in the area of health and safety. The Corporate Manslaughter and Corporate Homicide Act came into force in April and six months later, the Health and Safety (Offences) Act appeared on the statute books and is due to come into force on 16 January 2009.

Both acts have a number of common themes and arise out of growing societal concern that those responsible for breaches of health and safety law are inadequately punished. Reassuringly, however, neither Act imposes any additional legal duties on organisations or individuals.

The Offences Act has two main effects:

It raises the maximum financial penalty for breaches of health and safety legislation in two ways:

For many offences sentenced in the Magistrates’ Court, it increases the maximum fine from £5,000 to £20,000 per offence.
It makes most offences triable not just in the Magistrates’ Court but also in the Crown Court – where fines are potentially unlimited.
Imprisonment is now a sentencing option for most health and safety offences. Certain offences will carry a maximum prison sentence of 12 months for cases sentenced in the Magistrates’ Court or two years’ for cases heard in the Crown Court.

The Act does not have retrospective effect, so will apply only to offences committed after 16 January 2009.

What does this mean in practice?

“Popular” offences such as failing to conduct a “suitable and sufficient” risk assessment or failing to keep floors free from trip or slip hazards will now attract a fine of £20,000 (previously £5,000) before the Magistrates. An individual – such as a Director or Manager – charged with the same offences gets a “double whammy” of a fine and potentially 12 months in jail.

We doubt that, just because sentencing powers have increased, Courts will automatically increase fines and impose prison sentences. However, some cases may now be sentenced by the Magistrates who previously considered their sentencing powers inadequate and sent the matter to the Crown Court. This has a number of benefits for defendants – not least reduction of legal costs and speedier resolution.

In theory, the Offences Act should not increase the number of prosecutions for health and safety offences  as duties have not changed.  However, for fatal accidents, investigations under the Corporate Manslaughter Act place the management and organisation of a company into the spotlight. This could very well lead to “satellite litigation” of directors or senior managers for health and safety offences.

The legal fraternity still awaits guidance from the Sentencing Advisory Panel on sentencing for corporate manslaughter. The panel has suggested a “starting point” of 5% of turnover for corporate manslaughter. For health and safety, it has suggested a starting point of 2.5%.

This is a real sting in the tail. The Offences Act has opened the door for more health and safety offences to be sent to Crown Court with its power to impose unlimited fines. If the panel’s suggestion is confirmed, then the door is well and truly beaten down. 2009 could very well bring higher fines for health and safety charges.

How this all affects you

Local authorities, ALMOs and housing associations need to be aware of these issues. The HSE has investigated a number of fatal incidents relating to rented housing including scaldings, explosions from redundant back boilers and carbon monoxide poisoning linked to solid-fuel range cooker and heaters. In this new era, similar incidents may result in corporate manslaughter investigations and significant fines following successful prosecution.

Take the Barrow-in-Furness Legionnaires case in which seven members of the public died. Had the Corporate Manslaughter Act been in force when this incident occurred, the prosecution against the council for corporate manslaughter may very well have been successful. Gill Beckingham, who was prosecuted for health and safety offences, was given a £15,000 fine. Under the new Offences Act, she would now also be at risk of imprisonment.

The stakes are now much higher if an offence is committed and you should seek legal advice at the earliest opportunity if an incident has occurred. We know that in this tough climate businesses have to be careful, but aversion to legal spend could have far reaching consequences.

If you require any further details about the issues discussed in this article please contact:

Kirsty Gomersal
Tel: 0845 404 1683
E-mail: kirsty.gomersal@cobbetts.com

The content of this article is for information purposes only and should not be relied upon as a substitute for legal advice.  Copyright 2009 Cobbetts - All rights reserved - December 2008