http://www.cps.gov.uk/news/press_releases/124_09/
In 2007 Professor Frank Wright of the University of Warwick wrote that “currently, insufficient priority is given by the Health and Safety Executive to prosecutions under section 37 of HSWA.” There is a definite perception among practitioners that this is no longer the case, and that directors are increasingly in the sights of prosecutors as potential accused in prosecutions arising out of work-related accidents.
It therefore seems timely to pull together some of the recent developments which underlie this perception. They tend to show that there is more than anecdotal evidence underlying the impression, and that there is now a framework in place which both encourages the prosecution of individuals and prescribes significant penalties in the event of conviction.
At the same time, we also remind readers of published guidance as to what is expected of company directors in relation to their health and safety responsibilities.
2. S.37 Neglect – Objective Test
As readers know, section 37 is broad enough to attach criminal liability to an individual where an offence by a company is “attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate”. In R v P Ltd , the English Court of Appeal re-emphasised that to secure a conviction under s.37 it is not necessary for the prosecutor to establish wilful neglect. The correct question is whether the director or other officer ought to have been aware that a particular practice occurred rather than whether a blind eye had been turned.
For the court’s judgment in R v P Ltd, follow the link:
http://www.bailii.org/ew/cases/EWCA/Crim/2007/1937.html
3. Judicial endorsement of the importance of the duty imposed by s.37
In R v Chargot Ltd Lord Hope observed that “the fact that the penalties that may be imposed for a breach of this section have been increased [see below] does not require any alteration in this test. On the contrary, it emphasises the importance that is attached, in the public interest, to the performance of the duty that s.37 imposes on the officer.”
To read Lord Hope’s observations (@ paragraph 33), follow the link:
http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd081210/chargo-1.htm
4. Penalties – the possibility of imprisonment & disqualification of directors
Since the coming into force (16th January 2009) of the Health and Safety Offences Act 2008 a contravention of section 37 now carries with it the possibility of a custodial sentence of up to 12 months (summary) or 2 years (on indictment). In addition, the HSE Enforcement Policy Statement [see below] now expressly directs enforcing authorities to “seek disqualification of directors under the Company Directors Disqualification Act 1986” where appropriate. The maximum period of disqualification is 15 years.
To read the Act in full, follow the link:
http://www.opsi.gov.uk/acts/acts2008/ukpga_20080020_en_1
5. HSE Enforcement Policy
Crown Office has endorsed the recently published enforcement policy statement (which applies to England & Wales) and indicated that its consideration of prosecutions will reflect the approach set out in the policy. The policy statement clearly indicates (paragraph 43) that enforcing authorities should identify and recommend individuals for prosecution under section 37 if they consider that a prosecution is warranted.
To read the Enforcement Policy Statement, follow the link:
http://www.hse.gov.uk/pubns/hse41.pdf
6. Further possibilities for expanding the scope of the focus on individuals
Not all work-related fatalities occur on company premises. A fatal road traffic accident caused by an overtired lorry driver is just one such example: and may be seen as just as much a “workplace accident” as a death in a factory. The investigation of such crimes falls in the first instance to the police. However, the latest version of the (English) ACPO Road Deaths Investigation Manual stipulates that police should involve the HSE if there is sufficient indication that failures in safety management by the employer have significantly contributed to the incident. (The equivalent Scottish manual includes a protocol for liaison between police, procurator fiscal and HSE in the investigation of a work-related fatality). So it is far from inconceivable that an individual charged with causing death by dangerous driving could be sharing the dock not only with his (corporate) employer, but also with an individual director who turned a blind eye to his excessive work-load and resultant over-tiredness.
To read the ACPO & ACPOS Road Deaths Investigation Manuals, follow the links:
www.acpo.police.uk/asp/policies/Data/road_death_investigation_manual_18x12x07.pdf
www.acpos.police.uk/Documents/Policies/RP_ACPOS%20RDIM%20(version%203%203%202008).pdf
7. Guidance for directors
In the landscape summarised above, sensible individuals will look for material that will remind them of the scope of their obligations and what they must to ensure that they are complying with them. “Leading heath & safety at work”, published jointly by the Institute of Directors and the HSC, is essential reading for directors. Whilst not obligatory, the guidance provides a touchstone against which a director’s actions (or non-actions) can be assessed in the context of a criminal prosecution. In relation to the Corporate Manslaughter & Corporate Homicide Act, the guidance expressly states that the document “could be a relevant consideration for a jury” when assessing whether or not an organisation is criminally liable. In other words, a demonstrable failure to follow the guidance is going to support an inference of guilt. And there is no reason to think prosecutors might not pray in aid a failure to follow the guidance when seeking to establish a charge under s.37 brought against an individual director.
On a more positive note, the document reassures its reader that “by following this guidance, you will help your organisation find the best ways to lead and promote health and safety, and therefore meet its obligations.” And, of course, the director’s as well.
To read the Joint Guidance, follow the link:
http://www.iod.com/intershoproot/eCS/Store/en/pdfs/hse_guide.pdf
Compass Chambers