Prison sentences for the negligent

Do you run or manage a business? You need to watch out as punishment for health and safety offences may no longer be an expense that you and your business can factor into your running costs, and breaches of health and safety law will very soon threaten your liberty.

The Health and Safety (Offences) Bill, when enacted, will make imprisonment possible for most health and safety offences. Previously, imprisonment was only an option in three limited areas and was rarely used. One was contravening a prohibition improvement or notice.

The bill quietly passed its final reading by the House of Lords on 10 October without amendment and will now come into force three months after it received royal assent on 16 October. The bill has progressed relatively unnoticed by the business community, despite the potentially serious ramifications for those with any responsibility for health and safety at work.

In addition to making imprisonment an option in both magistrates’ courts and the Crown Court, the bill will raise the maximum fine imposable by a magistrates’ court to £20 000.

Certain offences that are currently triable only in a magistrates’ court will now be triable in both the magistrates’ courts and the Crown Court.

Who will be imprisoned?

Under health and safety law, any individual in the workplace – and that includes employees, management and directors – can all be found guilty of health and safety offences which, under the new law, will bring with them imprisonment as an option.

Two years is the maximum term of imprisonment, and this can also be accompanied by an unlimited fine.

Beware, senior bosses

Keith Hill, Labour MP for Streatham, has said there will be a minimal increase in those going to jail as a result of this bill.

Do not be fooled. Given the new focus on the acts and omissions of senior managers in prosecutions brought under the new Corporate Manslaughter and Corporate Homicide Act 2007, it is likely prosecutors will be tempted to send more and more senior managers away at the same time, particularly when public perception plays such an important role in high-profile and multiple fatalities.

Prosecutors will think: if we cannot get individuals for corporate manslaughter, we will get them for breaches of health and safety.

Until proven innocent

Even more worryingly, the new imprisonment clauses pose a serious human rights issue. Individual defendants facing the possibility of imprisonment will also face what is called a ‘reverse burden of proof’.

As the law stands, the prosecution has to prove very little with respect to the general health and safety offences before the burden of proof switches to the defendant to show that they fulfilled their duty so far as was reasonably practicable.

The courts have already held that the reverse burden is compatible with the European Convention of Human Rights against companies. The question that arises in the context of this bill is whether the addition of imprisonment, as a possible penalty when a person is convicted of an offence to which the reverse burden applies, means the reverse burden is not compatible in these circumstances.

Unsurprisingly, the Department for Work and Pensions is of the opinion that the bill is compatible with the European Convention on Human Rights. This may well be subject to challenge in the courts later on.

What to do now

The bill does not impose additional duties on individuals or businesses. It simply deals with penalties for existing offences.

That said, with the stakes being considerably higher, businesses and individuals – particularly those in management – should be ever more concerned to ensure that they fulfil their health and safety obligations.

Individuals in firing line

The focus of the Corporate Manslaughter and Corporate Homicide Act 2007 – and now this new law – is on the acts and omissions of the individual.

This change of emphasis from corporate culpability to blaming the individual is going to shock managers and directors as they become subject to criminal inquiry by the police and the Health and Safety Executive.

The regulators will be flexing their muscles.