Health and safety enforcement: an effective deterrent?

Howard Fidderman reports on another woeful year for health and safety enforcement.

On this page:
Prosecution woes
      Fine deterioration
      Councils may be "over-cautious"
      Prosecutions by industry
      Prosecutions by legislation
      Directors still escaping sanction
      Enforcement notices down
      Notices by type
      Exceptional fines
      What Howe effect?
Bill to increase levels of fines 
      No alternatives for safety
When death is involved
      Turnover controversy
      Able to pay?
      Manslaughter convictions
      Small firms exemptions
Enforcement deficit
      Political uncertainty
      Tory u-turn?
Insignificant impact
      Linking fines to turnover
      Fines must deliver a message
Box 1: Aggravation and mitigation
Box 2: TDG (UK)
Box 3: Imprisonable offences
Box 4: A fairer basis for fines
Table 1: HSE prosecutions and fines per offence, 1986/7-2007/8
Table 2: HSE and local authority prosecutions
Table 3: Cases taken against directors under S.37 (1) of the HSW act
Table 4: Enforcement notices served 1990/91-2007/8
Table 5: Fines of £100,000 and above 1975-2009 (cases)
Table 6: The effects of the Health and Safety (Offences) Act 2008
Table 7: Death fines of £100,000 or more, profits and turnover, 1 April 2006-28 February 2009.
It is now just over 10 years since the Court of Appeal set out criteria in its Howe1 judgment to help magistrates and judges impose stiffer fines on health and safety criminals. In the ensuing years, the appeal courts have revisited the issue on at least 10 occasions; the guidelines have been formalised and sent to magistrates; and the lord chancellor, ministers and the HSE have all - politely - told magistrates and judges to get their act together. The result? The average fine in 2007/08 - "adjusted", so that penalties of £100,000 are stripped out to give a more accurate picture of everyday sentencing - is about double what it was in 1997/98: put another way, each offence successfully prosecuted by the HSE in 2007/08 cost an offender on average just under £8,000, compared with just under £4,000 a decade earlier. Deterrent, what deterrent?

Since our last annual sentencing review, new legislation has come into force that raises the levels of fines that magistrates can impose, and the Court of Appeal and its Scottish equivalent have heard two cases each that have, essentially, restated what we already know, ie most fines are too low and judges and magistrates need to address this. Unfortunately, the Sentencing Advisory Panel (SAP) is still deliberating about what to do with its guidelines for setting fines in cases of manslaughter and HSW Act offences where a death is involved. And the HSE has remained true to its initial antipathy to availing itself of new, alternative penalties to those currently used in sentencing - essentially fines, occasionally jail and, still less frequently, disqualification from acting as a director.

PROSECUTION WOES

When we reviewed, a little over a year ago, the record of the HSE, local authorities (LAs) and the courts in 2006/07, we noted that all the important indicators - enforcement notices served, cases and offences prosecuted, and the adjusted average fine imposed - were higher than the previous year's levels. Sadly, this progress lasted only for that year; in 2007/08 business returned to normal with decreases in the number of cases initiated by the HSE (but a rise in the number of individual offences), convictions secured, average fines and "adjusted" average fines2. In fact, table 1 shows that the provisional numbers of cases and convictions for individual offences (informations) achieved by the HSE in 2007/08 are the lowest on record, although late reporting might shift the latter total to only its second lowest level ever. There were, however, rises in all indicators for LA-initiated prosecutions, although the numbers are smaller than those for the HSE.

The HSE prosecuted 565 cases (dutyholders), securing at least one conviction in 95% (537) of the cases. A case against a dutyholder may comprise more than one offence and, in 2007/08, the HSE prosecuted 1,137 offences, securing 839 convictions in 1,028 completed prosecutions (offences) - an 82% success rate and one of the few bright spots during the year, following a plummet in the conviction rate in 2006/07 to 74%. (The chair of the HSE, Judith Hackitt, told a Centre for Corporate Accountability (CCA) conference in November 2008 that a success rate around 80% was a "very important benchmark - if that number were as high as 100% it might perhaps indicate an overly cautious approach in only bringing 'cast-iron' cases to court, but equally a significantly lower success rate might point to an over propensity for enforcement3.)

Further perspective on just how bad a year 2007/08 was can be gained from looking at the high point for prosecutions - in 1989/1990, under a business-friendly Conservative government, upwards of 1,500 cases and 2,600 offences were prosecuted - two to three times more than under the Labour government over the past year.

Fine deterioration

The small number of companies and individuals who face trial is only part of the reason why any deterrent effect is limited; greater concern arises once the criminals - and people sometimes forget that an HSW Act offence is a criminal offence - have been convicted. Column 5 of table 1 shows that the unadjusted average penalty per offence in a prosecution initiated by the HSE was £12,896 in 2007/08 - the second consecutive year that the average has fallen. If exceptional fines of £100,000 and over are excluded, the adjusted average falls to £7,809 (column 6); although this is the second highest on record, it is £1,202 less than the previous year, bucking a general trend that, with a couple of exceptions, has seen the adjusted average rise over time.

Although the HSE no longer provides the average fine per successful case, our calculation puts it at £20,148, which is just £1,383 higher than the last time the HSE calculated this figure, in 2004/05; HSB is unable to calculate an adjusted average per case because the HSE no longer supplies the data, but when it did so in the years to 2004/05, the adjusted average per case was consistently around £3,000 a year higher than the adjusted average for an offence, meaning that it would be just under £11,000 in 2007/08 (roughly £1,000 more than in 2004/05).

Councils may be "over-cautious"

Table 2 includes the performance of LAs and shows that while there has been a drop in the numbers of offences prosecuted by LAs and the HSE since 2003/04, the drop is less marked for LAs. Thus LA prosecutions have fallen by 14% over the five years, whereas those initiated by the HSE have fallen by 40%. As a proportion of all offences prosecuted, LAs were contributing 19% in 2003/04, but 26% in 2007/08.

Once they do go to court, LA prosecutions secure lower fines than those involving the HSE, with disparities in the adjusted average fine ranging between £1,500 and £3,000 in recent years (if fines of £100,000-plus are included, the disparity is far greater, because the HSE tends to investigate the more high-profile cases). Table 2 also shows that in 2007/08, LAs secured 334 convictions for health and safety offences (fire authorities secured a further six), resulting in total fines of £2,559,557, at an unadjusted average of £7,528. (It should be noted that this figure, which is contained in an HSE report on LA enforcement4, is slightly different to the average listed by the HSE in its web tables that we use in table 2.) The adjusted average LA fine was £5,650, which, as with the unadjusted average, represents a small increase on the previous year. The LA conviction rates were 94% of offences and 97% of 156 cases, which are higher than those achieved by the HSE; it is unclear whether Hackitt would regard an LA success rate that is verging on 100% as embodying an "overly cautious approach".

The HSE advises that the LA picture "is not complete as it contains only cases that LAs have notified to the HSE". Of the 417 LAs, only 103 provided details of prosecutions. A further 245 - more than half of all LAs - told the HSE that they had not taken a prosecution, and 69 did not even bother to respond. In simple terms, three in four LAs did not manage to mount a single health and safety prosecution in 2007/08.

Prosecutions by industry

Of the 1,028 informations laid by the HSE in 2007/08, 417 were in construction, 362 in manufacturing, 205 in services, 28 in agriculture and 16 in the extractive and utility supply industries. The numbers have decreased in all five sectors since 2003/04, with the most marked fall in agriculture where the total is now less than one-third of the 106 informations laid in 2003/04.

In court, the average adjusted fines per conviction in 2007/08 were as follows (where the sector has had one or more exceptional fines, the unadjusted averages are in brackets):

  • manufacturing, £15,233;
  • extractive and utility supply, £14,533;
  • services, £8,549 (£11,540);
  • construction £7,519 (£11,819); and
  • agriculture £5,881.

There is no clear sectoral pattern over the past five years in the unadjusted average fines, due to the ability of a handful of exceptional fines to skew the averages; for example, the average fine in 2005/06 in extractive and utility supplies was £747,868, but the exclusion of the seven fines of £100,000 or more, including a single £15 million fine, brings the average down to £6,311. The adjusted averages, as would be expected, vary significantly between the sectors, although the trends are much more in keeping with the all-industry trend. But even allowing for these caveats and disparities, agriculture continues to return consistently and markedly lower fines.

Prosecutions by legislation

Almost half of the offences prosecuted by the HSE - 551 of 1,137 - were taken under the HSW Act, securing a total of £9,472,876 in fines out of an overall total of £10,819,475. This works out at an average of £22,826 per HSW Act offence against the overall average of £12,896, which is unsurprising given that breaches of the general duties in the Act tend to be more serious than specific regulatory breaches, and have been able to attract - until January - higher fines in the magistrates' court (see below).

The only Regulations where the HSE laid more than 75 informations were the:

  • Provision and Use of Work Equipment Regulations 1992 (107 offences, 76 convictions, with total fines of £252,275 at an average of £3,319);
  • Work at Height Regulations 2005 (90 offences, 74 convictions, with £186,250 in fines at an average of £2,517);
  • Gas Safety (Installation and Use) Regulations 1998 (88 offences, 63 convictions, with £45,500 in fines at an average of £722); and
  • Management of Health and Safety at Work Regulations 1999 (MHSW) (77 offences, 55 convictions, with £300,515 in fines at an average of £5,464).

Only 22 offences were prosecuted under the Construction (Design and Management) Regulations 1994 and 2007 (CDM), and 48 offences under the Control of Asbestos at Work Regulations 2002 and 2006. There were no prosecutions under the Health and Safety (Display Screen Equipment) Regulations 1992. The CDM deficit is partly accounted for by the fact that prosecutions for construction failings will often be taken under the HSW Act and the MHSW Regulations, where, as we note above, the maximum penalties have been higher. (The HSE does not collate similar information for LAs, although a perusal of the database indicates that the trends are similar, albeit with regulatory charges reflecting the areas that LAs enforce in.)

Directors still escaping sanction

In 2006, the HSE announced that it would amend the guidance it gives to inspectors to make it clear that they should consider prosecution of directors under s.37(1) of the HSW Act as well as their companies. Table 3 shows that this has, to date, had no effect at all. After the total almost doubled from 12 to 22 between 2005/06 and 2006/07, it fell back in 2007/08 to 13, which is consistent with three of the past four years. Rather bizarrely, the HSE notes that "s.37 cases continue to be taken against directors". The CCA's executive director, David Bergman, says that scrutiny of the revised instructions shows they are "practically identical to the previous edition". The "only substantial change", he believes, is that prosecutions should no longer be restricted to reckless disregard of health and safety or a deliberate act or omission. Inspectors, he fears, most likely have "no idea" about this change5.

Enforcement notices down

Nor is the failure of the HSE and LAs to prosecute adequate numbers of companies and directors explained by zealous enforcement activity elsewhere. As we shall see later, investigation of injuries is falling. And the record on enforcement notices is equally poor: the total number of notices issued by the two regulators and the Office of Rail Regulation (which has assumed the HSE's rail responsibilities) in 2007/08 was 13,750 - a fall of 1,484 on 2006/07 levels. Although the 2006/07 total was higher than the previous year, it now appears to be a blip, with 2007/08 returning the trend to one of overall decline since 1999/2000.

Table 4 shows that in 2007/08, the HSE issued 7,715 enforcement notices, a 6.3% reduction on 2006/07 levels and its second worst year on record (taking account of the use of "notices of intent" in 1996-98). The fall is accounted for by a drop in improvement notices of 627 to 4,512; immediate prohibition notices actually increased by 118 to 3,159. Both types of notice are at their third lowest levels on record (allowing for "notices of intent").

The number of enforcement notices served by LAs in 2007/08 fell by 950 to 6,010 - its lowest level since 2002/03 but relatively constant with the totals since 1999/2000, which have fluctuated around 6,000 by a few hundred, with the exception of 2006/07 and 2007/08, when they peaked just 40 shy of 7,000. Of the 2007/08 total, 4,470 were improvement notices.

Notices by type

The total number of notices issued by the HSE fell in all five main industrial sectors between 2003/04 and 2007/08:

  • in agriculture, from 2,029 to 295;
  • in extractive and utility supply, from 195 to 128;
  • in manufacturing, from 3,918 to 3,229;
  • in construction, from 3,487 to 2,505; and
  • in services, from 1,706 to 1,583.

The falls in HSE notices were in all three categories of notices (improvement, deferred prohibition and immediate prohibition) in all five sectors, with the exception of small rises in deferred prohibition notices in manufacturing and immediate prohibition notices in services. The most startling drops were in agriculture, where improvement notices fell from 1,475 to 155 and immediate prohibition notices from 543 to 139; taking this with the disproportionate decline in prosecutions, there are serious questions to be asked about the HSE's approach to formal enforcement in the agricultural and allied sectors.

The most common pieces of legislation that the HSE cited in its 2007/08 notices were the:

  • HSW Act (8,919 notices);
  • Work at Height Regulations 2005 (2,725 notices);
  • Provision and Use of Work Equipment Regulations 1998 (combined - includes amending and earlier versions of the Regulations) (1,607 notices);
  • Management of Health and Safety at Work Regulations 1999 (combined) (1,235 notices);
  • Construction (Design and Management) Regulations 2007 (1,138 notices); and
  • Control of Substances Hazardous to Health Regulations 2002 (combined) (898 notices).

Equally instructive are the Regulations where the HSE served few or no enforcement notices: the Health and Safety (Display Screen Equipment) Regulations 1992 (four, including one immediate prohibition notice!); the Working Time Regulations 1998 (combined) (three notices); the Health and Safety (Consultation with Employees) Regulations 1996 (two); and the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (one). As would be expected, prohibition notices account for a higher proportion of all enforcement notices where work involves work at height, construction, asbestos or electricity, and under the HSW Act.

Exceptional fines

Table 5 summarises the 266 exceptional (£100,000 and above) fines that have been imposed in health and safety prosecutions between 1 January 1975 and 28 February 2009. They refer to cases rather than individual offences. As we noted in our last review, there is a marked increase in the frequency with which courts are handing down fines of £100,000 and more. The numbers of such sentences were:

  • 83 in the 28 years to 1 April 2003 - an average of three a year;
  • 146 in the next five years to 1 April 2008 - an average of 29 a year; and
  • 37 in the 11 months to 28 February 2009.

Further evidence for this trend can be found in the fact that each of the past three years has seen 35 or more such exceptional fines. But this does not tell the whole story:

  • although the five highest fines were all imposed between 2004/05 and 2006/07, there has been nothing in the subsequent 23 months remotely approaching the level of these sentences, which ranged between £2 million and £15 million;
  • there is no indication that courts are increasingly imposing fines of £200,000 or more as a proportion of all fines of £100,000 or more. The percentage of such fines, as a proportion of all fines of £100,000 or more, was 46% between 1975 and 2003 and 29%, 55%, 63%, 30%, 42% and 43% in the following years; and
  • of the 266 fines of £100,000 and over that courts have imposed since 1975, 58% (151) were below £200,000 and 84% (221) were below £300,000. (These percentages are actually slightly lower than they were a year ago, although this is not statistically significant.)

What Howe effect?

The immediate question is whether all these figures constitute significant progress in assuaging the concerns of the Court of Appeal that fines for health and safety offences are too low. The court first set out its concerns in November 1998 in the Howe case, when it laid down criteria, including aggravating and mitigating factors (see column 1 of box 1) that judges and magistrates should take into account when deciding on the appropriate level of fine for health and safety at work offences. The Court of Appeal has revisited its own advice on at least eight occasions, each time confirming and elaborating on its 1998 criteria. In the past year alone, it has given two judgments in the cases of TDG 6 (see box 2) and Chalcroft7, and this January the Scottish High Court of Justiciary's Appeal Court twice considered the issue. Whether the appeal courts increased, decreased or left alone the fines, their judgments were all clear about one thing: the fines that the appeal judges considered appropriate hit the offenders far harder than is usually the case in courts of first instance.

When the Court of Appeal gave its Howe judgment, it was looking at unadjusted and adjusted average fines per offence of £4,694 and £3,805 in 1997/98. Ten years on, these averages have reached £12,896 and £7,809, representing increases of 275% and 205% (the rises to 2006/07 were 329% and 237%). Had the unadjusted total increased at a nominal 5% per annum - to allow for inflation - the 2007/08 adjusted average would in any case have stood at £6,198.

The Court of Appeal in Howe also looked at: the differences in the average fines imposed in magistrates' and higher courts; the average fine per fatality; and average fines per case, rather than offence. Unfortunately, the HSE stopped compiling information on these three areas after 2004/05 - allegedly because it would take too much time - thereby preventing further analysis of progress. Even without this, the unavoidable conclusion - and this is putting the case charitably - is that 10 years on from Howe, courts have made nowhere near the progress envisaged by the Court of Appeal.

BILL TO INCREASE LEVELS OF FINES 

In our last review, we flagged several possible developments that might have an impact on sanctions for health and safety crimes, including a Private Member's Bill to increase the levels of fines that, we noted, had made some "unexpected progress". The Bill, which was introduced by Keith Hill MP, started life as a "government handout Bill", which means that it is government drafted and supported. The changes were first proposed after a joint review of the maximum penalties for health and safety offences, which was carried out in 1999 by the Home Office, the HSE and the then Department of the Environment, Transport and the Regions.

The measure was, however, the fifth such Bill since 2000 to enjoy government support; its predecessors had all run out of parliamentary time, which is a polite way of saying that the government wasn't backing it as strongly as it might have done, fuelling suspicions that the Bill, for the government, was as much an annual method of getting the trade unions off its back as it was a genuine commitment to addressing repeated miscarriages of justice. This time, however, the government's support was more tangible - extending to the provision of extra committee time - and the Bill received royal assent on 16 October 2008, and came into force on 16 January this year.

Broadly, the Health and Safety (Offences) Act 20088 amends s.33 of the HSW Act so that, for most health and safety offences committed after 16 January 2009, employers face a fine of up to £20,000 in a magistrates' court. The Act also makes imprisonment an option for a majority of offences in magistrates' or Crown courts. The detailed changes are set out in table 6. Of the 17 main types of offences under the HSW Act, the 2008 Act:

  • allows magistrates to imprison offenders for 13 types of offence (previously, two);
  • increases the maximum prison term available to magistrates from six to 12 months (although this provision will not take effect until ss.154(1) and 281(5) of the Criminal Justice Act 2003 come into force, and no date has yet been set for that);
  • allows magistrates to impose a maximum penalty of £20,000 for 13 types of offences, including regulatory failures (currently, all but three offences are limited to £5,000);
  • increases the number of offences that are imprisonable on indictment (ie in higher courts) from three to 12 (although the maximum sentence remains two years); and
  • allows two of the five offences that are currently triable only in magistrates' courts to be triable on indictment.

No alternatives for safety

We also devoted considerable space in our last annual review to a government Bill that was going through parliament and which would allow regulators to use alternative penalties to fines for regulatory offences. In the event, the Regulatory Enforcement and Sanctions Act 2008 received royal assent on 21 July 2008 and came into force on 1 October 2008. It implements proposals from the Macrory review of sanctions and the Hampton review of the enforcement of business-related legislation.

The range of penalties that the Act provides for is explored. In brief, they include: fixed monetary penalties; variable monetary penalties; discretionary requirements, in which a regulator tells an offending business to implement certain actions; stop notices, in which a regulator prohibits a business from pursuing an activity where there is risk of serious harm; and enforcement undertakings, in which a business offers to implement improvements.

We noted, at the time of the Bill's parliamentary passage, that the HSE was less than keen on availing itself of any of these new powers and, true to its word, it subsequently rejected use of the measures after they reached the statute book. Each government department can elect to use any or all of the sanctions and, in the case of the HSE, the Department for Work and Pensions does not appear to have even questioned the HSE's line, despite a recommendation by parliament's work and pensions select committee that the HSE "revisit" their use. The government advises that there is "not a strong case for seeking additional sanctioning powers", although it does not categorically rule them out in the future9. Although LAs have shown greater interest in using some of the sanctions for health and safety, they would need the approval of the Local Better Regulation Office and this would be unlikely to occur without the concurrence of the HSE, which will not - understandably - countenance a system whereby similar failures were enforced by the HSE through criminal sanctions and by LAs through alternative penalties.

The HSE relies partly on the last evaluation of its Enforcement policy statement, which concluded "there were no significant gaps in its powers" and that the HSE and LAs "already effectively enforce the legislation without being driven to excessive use of prosecution through lack of alternatives". There are also genuine doubts as to the wisdom - in terms of resources and benefit - of inspectors becoming embroiled in applying a greater number of sanctions to what would generally be less serious offences. Nor is it clear that any of the sanctions are stronger than those the HSE and LAs can deploy and secure under the current criminal law. Nevertheless, some of these sanctions - on-the-spot fines, for example - might have offered a quick way of focusing employers' minds on failures that, while seemingly minor, would otherwise go unpunished and might even represent the precursor of more serious consequences if left unsanctioned. The HSE's position overall remains that efforts should be directed at getting courts to use their powers appropriately to fine, and even imprison, in the types of cases that satisfy its formal enforcement criteria.

WHEN DEATH IS INVOLVED

As welcome as the Health and Safety (Offences) Act 2008 is, we should not overstate its likely impact by itself. The major issue in sentencing is that courts have not been willing to use the powers that they already have, not that they have been hamstrung in their struggles to do the right thing. After all, judges have always been able to impose unlimited fines under the HSW Act. Nor have they shown themselves willing to jail individuals, with only 23 custodial sentences related to workplace health and safety (excluding manslaughter) since 1974 (see box 3). Interestingly, though, nine such sentences have been imposed in the past 10 months. So, while the Act is likely to bump up the average fine in a magistrates' court, the more substantial increases are likely to come where a crime has also involved a fatality.

Although whether a person is killed, injured or unharmed after a failure is often a matter of chance - no one was hurt at Buncefield, for example, but only because the explosion happened at a time when most workers were not on-site - courts have traditionally viewed death as a significant aggravating factor when setting a fine for a workplace safety failure. This was made clear in the Howe criteria and has been reiterated in successive appeal cases and in May 2008's sentencing guidelines for magistrates published by the Sentencing Guidelines Council (SGC)10.

The role of death appeared to be reaching its apotheosis when, in December 2007, the Sentencing Advisory Panel (SAP), which advises the SGC, published proposals for a "guideline" on determining fines for the new offence of corporate manslaughter and for HSW Act failures that end in death11. If these proposals are implemented in anything near the form in which they were proposed, they will have a far greater impact than any previous initiative.

But despite consultation closing on 7 February 2008, the guideline remains some way off. In September 2008, the SAP told HSB: "The panel is currently considering the consultation responses, with a view to submitting its advice to the SGC in the late autumn of this year. Our current expectation is that the council will issue a consultation guideline by the end of 2008, with a definitive guideline following in spring 2009." The timetable then slipped, although the SGC had a full discussion of the guideline on 6 March 2009, covering areas on which it had requested further research from the SAP. The SGC will next discuss the guideline in June, possibly issuing a draft guideline before parliament's summer recess for "limited" consultation. The process, which will probably be restricted to ministers and parliament, would then end in October, with the guideline published by the end of the year. Meanwhile, the Scottish appeal courts have referred to the SAP proposals in their first two reported judgments on what constitutes an appropriate fine. Both judgments were given in January by the High Court of Justiciary's Appeal Court and are covered in this issue: in Munro & Sons12, the court noted that the SAP's final guidelines had not yet appeared, so the panel's consultation paper "must be regarded as of some, but limited, assistance". And, one day later in LH Access Technology and Border Rail & Plant13, the court held that the fines imposed on both companies were appropriate, even though they amounted to several times their average annual profits and, as percentages of annual turnover, were so far above the maximum recommended by the SAP for an HSW Act offence that they were at the top end of what the panel would impose for manslaughter.

Turnover controversy

Among the issues that the SAP was researching further were: how best to fine public bodies; the "complications" of widening the guideline beyond manslaughter to incorporate HSW Act deaths; and, crucially, its proposed "starting points" for fines. This is because where there has been a death at work - regardless of whether the offender is convicted under the HSW Act or for corporate manslaughter - the SAP controversially links the fine to the offender's annual turnover, averaged over the three years prior to sentencing, with starting points of:

  • 2.5% of turnover for HSW Act offences involving a death, with aggravating and mitigating factors (see column 2 of box 1) fixing the fine normally between 1% and 7.5%; and
  • 5% of turnover for corporate manslaughter, with the same factors fixing the fine between 2.5% and 10%.

The SAP's proposals were a significant rejection of precedent, which has steadfastly avoided linking fines to either turnover or profit in a fixed fashion. True, the Law Commission recommended in 1992 that a conviction for its then proposed offence of manslaughter - an early version of the offence that would eventually reach the statute book - should be linked to an offender's profits. The government, however, ignored this recommendation, just as it ignored calls from unions, campaigners and some small businesses to link the penalty to an offender's ability to pay, be it size, turnover or profit. The Court of Appeal too, in Howe, explicitly precluded a link between fine and turnover, although it added that a fine should - in part - reflect the ability to pay (see also box 4).

In recent years, however, the Court of Appeal has given two judgments that did look more favourably on a role for profit. In 2005 in ESB Hotels14, it said that courts should have regard to an offender's pre-tax profits rather than turnover. Then, in 2008 in Chalcroft, it cited this guidance from ESB to justify a fine that wiped out the company's annual profits, even though it had not deliberately cut safety corners to make a profit. Regrettably, this advice has rarely been reflected in the lower courts, although one notable exception - admittedly just one month later - was a £200,000 fine imposed on Edeco Petroleum Services, which the judge explicitly set at roughly the company's projected annual profits to reflect its cost-cutting and slack attitude to safety.

Able to pay?

Table 7 gives some indication why progress on the SAP's proposals has slowed. The table covers all fines of £100,000 or more that have been imposed between 1 April 2006 and 28 February 2009 for health and safety at work offences involving a death and where we have been able to obtain financial information on the offender. The table looks at the percentage of annual profits and turnover that each fine represents (columns 6 and 7), and also what the fine would have been had it been imposed at the SAP's starting point (column 8). Column 6 of the table shows that, of the 68 cases:

  • only 30 resulted in a fine that was greater than 1% of the offender's annual profits;
  • only 12 resulted in a fine that was 10% or more of the annual profits; and
  • only six fines exceeded 50% of the offender's profits.

The situation is even worse in terms of the offender's annual turnover; column 7 of the table shows that in only four instances has the fine represented more than 1% of an offender's turnover, and only two of these four cases - both of which were Scottish and went to appeal - resulted in fines that were beyond the SAP range. Put another way, even at the lower end of the SAP's scale, ie without too much aggravation, every single prosecution bar three would have resulted in a higher fine under the SAP's proposals. And it is not just a matter of a moderate increase: the range of increase is from four to several thousand times the fine that was imposed. In absolute terms, some organisations that were fined £100,000 could have been looking at fines in excess of tens of millions of pounds. (We should emphasise that this applies mainly to companies that report publicly on profit and turnover only at a group level; should the SAP proposals come into force, such companies will probably make available financial details for their individual businesses, thus reducing the fine. Even so, they will still be facing a significant deterrent.) Support for HSB's figures came in a 2008 report from the CCA, which found that only five companies received fines in 2006 and 2007 for prosecutions involving a workplace fatality that were in excess of 1% of their annual turnover. The remainder of the fines , advises the CCA, ranged between one-100th and one-100,000th of turnover.

The HSB figures look only at companies that publish profit and turnover figures, and so exclude small companies. Regrettably, the HSE decided three years ago to cease calculating the average fine per case involving a death, so the latest figures we have are for average fines per case of £42,795 in 2004/05 and £43,707 in 2003/04. In the four preceding years, the average had ranged from £21,030 to £37,727, ie there has been no clear pattern.

Manslaughter convictions

In the hierarchy of health and safety crimes, an offence under the HSW Act usually sits above a regulatory offence, but overriding both is a conviction for manslaughter. The single biggest topic around health and safety enforcement in recent years has been the failure to hold all but the smallest firms to account for the most serious of offences and convict them of the common law offence of manslaughter. Eventually, this led to the introduction of a new offence of "corporate manslaughter", which came into effect on 6 April 2008; there have been no prosecutions under this offence and the first are likely to be many months, if not years, away. Prosecutions are, however, continuing under the common law offence, with the most recent convictions of a company and individual in January this year.

The application of the common law offence of manslaughter - which will remain available in respect of individuals, but not companies - to workplace deaths met with little success. HSB's records show that there have been just 36 cases in which individuals and/or companies have been convicted of manslaughter since 1975. Of these, 35 involved the conviction of an individual (three were subsequently quashed) and 10 involved the conviction of a company (in one of the 10, a company was convicted without a parallel conviction of an individual). The 35 individuals comprised 29 directors, senior managers and owners, four employees, one teacher and one fairground inspector. (These figures exclude causing death by dangerous driving, maritime deaths, and landlords and gas fitters in domestic premises.)

In terms of the sentences imposed on individual offenders:

  • 26 were imprisoned immediately;
  • eight received a suspended custodial sentence; and
  • one was ordered to do community service.

All the suspended custodial sentences were issued between 1986 and 2003, since when all prison sentences have been immediate. The terms ranged from nine months to 12 years, but typically were between nine months and two years.

Small firms exemptions

The penalties imposed on the 10 convicted companies were all fines, ranging from £4,000 to £90,000, with no consistency in the reasons for why a particular level was deemed appropriate. All the offenders were small firms; as such, their accounts are generally protected by "small firms exemptions", so it has often not been possible to determine their annual profits and turnover.

Given that a conviction for manslaughter is more serious than an offence under the HSW Act, it might seem surprising that not even the highest manslaughter fine would make its way into the "exceptional" fines category, ie £100,000 and over. This is largely accounted for by the fact that all the convicted companies were small, because of the need to identify a "controlling mind" and link that individual personally to a grossly negligent failure. Such individuals are often synonymous with the company and, as they have usually gone to jail, presumably courts then think it not worth additionally fining the company a large sum.

One of the main points of the new offence, however, which was introduced by the Corporate Manslaughter and Corporate Homicide Act 2007, is to catch larger organisations, whose size and structure has allowed them to escape prosecution or conviction in the past. Unlike many of the HSW Act convictions, therefore, there are no examples of larger firms where we can compare the actual fine and what it might have been under the new guidelines. But, given that the Act precludes prosecution of individuals under the new offence, the only meaningful sanction will be a fine. And, with a starting point of 5% of annual turnover, that is twice that for an HSW Act offence involving death, we can see from table 7 that had any of those organisations been convicted of manslaughter, rather than under the HSW Act, at least 50 of the 67 fines would have had a "starting point" of well over £1 million, and many would have been in the tens of millions of pounds, with a few, in theory at least, in the hundreds of millions.

ENFORCEMENT DEFICIT

This feature has concentrated on prosecutions and sentencing. But these do not happen in a vacuum; the enforcement deficit is everywhere. A report15 prepared by the CCA for the Unite union in late 2008 showed significant declines between 2001/02 and 2006/07 in HSE investigations of:

  • major injuries, from 18.3% to 10.5%;
  • over-three-day injuries, from 3.8% to 1.2%;
  • dangerous occurrences, from 29% to 20% (2005/06 level); and
  • injuries to the public, from 6.2% to 2%.

In 2007/08 - the year after the period covered by the CCA report - there were 229 fatalities, 29,163 major injuries and 109,912 over-three-day injuries reported. Given that severity of injury is often a matter of chance, and that around 90% of injuries are caused by management failures, the amount of employers escaping investigation for significant failures, let alone sanction, is in the tens of thousands.

Self-evidently, inspector numbers are not going to increase to the level where the HSE and LAs investigate appropriate numbers of injuries, but the situation is hardly helped by the decrease in the number of operational HSE inspectors from 1,483 in April 2004 to 1,238 four years later16. When questioned about this, Judith Hackitt told HSB that the HSE is now "in the process of recruiting back to the level at which we believe they should be".

And, should law-abiding employers question the value of enforcement, they should look no further than the TUC's seventh biennial survey of safety reps in 200817, which found that 43% of employers reviewed "other" practices in different departments and/or work activities after their most recent enforcement notice. This was the same as in 2006.

Political uncertainty

Fuelling much of the deficit are the mixed political messages that have been coming out of Westminster in recent years. A Labour Government that wants higher fines in the courts and reductions in the incidence of work-related ill health, injuries and absence is also the same government that is obsessed with "lighter touch regulation" and allegations of a compensation culture and burdensome health and safety requirements (despite any significant substantiation). On top of this, the government's funding of the HSE in recent years has been inadequate for the tasks that it charges the regulator with (similar shortfalls beset LAs).

The HSE's draft strategy is emphatic that "considerable resources will continue to be invested in investigations and enforcement" when accidents and ill health occur, and that the regulators will "rigorously seek justice against those who put others at risk and in particular where there is a deliberate flouting of the law". The HSE is not, says its chair, Judith Hackitt, "going to go soft on enforcement".

The problem is that it has already gone soft - albeit not necessarily of its own volition. The statistics do not lie: it is inspecting fewer premises, investigating fewer accidents, serving fewer enforcement notices, taking fewer prosecutions and securing grossly inadequate penalties. And yet the government - with the HSE's backing - felt able to tell the work and pensions select committee that the HSE's Enforcement policy statement was adequate and "there is not a strong case for seeking additional sanctioning powers." At the same time, it also rejected the committee's call for the reinstatement of the annual Offences and penalties report. Its justification - that the HSE already publishes enforcement data - ignores the fundamental criticism, long made in this journal, that the HSE broke commitments given at the time of the cessation and no longer publishes adequate data. Put cynically, without the data there is no problem.

Tory U-turn?

The political uncertainty extends to the Conservative Party, which had hardly been a friend to health and safety at work when in government in the 1980s and 1990s, both through direct attacks on regulation and HSE funding, and through its hostile approach to union organisation and safety representative training. Speeches at the party's 2008 annual conference from its leader downwards seized on the usual health and safety myths, pandering to a gullible public. But this was also the same party that supported the 2008 Act that increased the level of fines for safety offences.

Addressing the CCA conference last November, Andrew Selous, a shadow spokesperson on work and pensions, explained the party's support for the Act: "First, to prevent death and injury at work. Second, to support decent, responsible businesses who do the right thing from being undercut by rogue businesses who make the appallingly cynical calculation that it is cheaper to pay the fines and let their staff be injured, rather than protect their staff properly in the first place. And third, as MPs we should not be denying judges the levels of fines and sentencing powers that they are calling for in dealing with some of the horrific cases that come before them." Even if there is a lack of evidence as to clamouring judges, his comments are clear.

But Selous went further: "Conservatives believe the elimination of gain from law-breaking, through increased fines, is essential if businesses are to be allowed to operate on a level playing-field. Unscrupulous competitors should not be allowed to cut corners, and gain competitive advantage, without facing serious financial or other consequences. For there is a real problem with enforcement of health and safety for those contravening the law, with fewer than three offences prosecuted a day." Noting the reduction in enforcement notices and prosecutions, he added: "There have to be questions raised about the ability of [the] HSE to respond to these challenges. Reductions in the number of front-line staff are a cause for concern." Add in the role of retribution and justice for victims and their families, and there's not a lot there to disagree with.

INSIGNIFICANT IMPACT

The Health and Safety (Offences) Act 2008 was greeted enthusiastically by campaigners and unions, but it is unlikely to increase either the number or length of imprisonments significantly; magistrates have long been able to use prison for the more serious breaches - HSW Act general duties and contravening a prohibition notice - but have, like judges, who have greater powers, been reluctant to do so - and it is hard to envisage them suddenly availing themselves of custodial sentences for lesser offences. It may well be that the optimism of the under-secretary of state at the Department for Work and Pensions responsible for health and safety, Lord McKenzie, was misplaced when he said of the Act: "Jail sentences for particularly blameworthy health and safety offences committed by individuals can now be imposed reflecting the severity of such crimes, whereas there were more limited options in the past."

The effects of the 2008 Act are more likely to be felt in increased fines for breaches of health and safety Regulations (where the maximum will rise from £5,000 to £20,000). And, although magistrates and judges rarely sentence anywhere near the maximum penalty, there is precedent to show that a rise in the maximum results in a rise in the average.

In short, the Act may nudge fines in the right direction, but is unlikely to have a significant impact. The stiffer penalties available to magistrates may also, as Lord McKenzie claims, mean that "more cases will be resolved in the lower courts and justice will be faster, less costly and more efficient." This is a mixed bag, however, because some cases that would formerly have been heard in the Crown Court, where the fine would be unlimited, will now be heard before magistrates and limited to a maximum fine of £20,000.

Linking fines to turnover

The big "unknown" is what the Sentencing Advisory Panel (SAP) will do. It is the sheer size of the amounts that the SAP's proposals herald that is both exciting and the major hurdle. But although it is likely that the SAP had not thought through the full consequences of linking fines to turnover, this is not a reason for ditching them. As huge as some of these fines would be, they would be neither unjust nor disproportionate. A fine of £10,000 for a one-person operation or small firm might be far more disastrous for its chances of survival than, for example, the fine of £335 million that Shell might have faced in November 2008 had the SAP proposals been in force and required a starting point fine of 2.5% of its £13.4 billion turnover (on which it made £1.32 billion pre-tax profits). Instead, it faced a paltry £150,000 penalty.

Or take Corus, which easily tops our table of fatal fines of £100,000 and over with five entries (and it has been convicted of other offences in the same period too): by any account, this is a serial offender, yet its five penalties total just £695,000 and have clearly not stopped the killing. Had it been fined 2.5% of turnover, its fines would have totalled many hundreds of millions, enough to make any director sit up and take notice.

The SAP's proposals would also run contrary to the levels of fines envisaged by the Court of Appeal in the post-Howe cases of Friskies Petcare18 and Colthrop Board Mill19, where it noted that "it appears from the authorities that financial penalties of up to around half a million pounds are appropriate for cases which result in the death even of a single employee", and that fines above this amount tend to be reserved for major public disasters. And in Chalcroft, the court had added that the sentencing judge had not put the offender "in the most serious category of those who sacrifice safety for profit with fines at or about £600,000".

Fines must deliver a message

In the end, however, a fine, as the Court of Appeal said in Howe, "needs to be large enough to bring that message [the need for a safe workplace] home where the defendant is a company not only to those who manage it but also to its shareholders." Or as Mrs Justice Hallett said in the Court of Appeal in Brintons20: "Any penalty imposed must be high enough to make a difference to the company and to make all concerned sit up and take notice." She said this in 1999 in the second case concerning a health and safety fine to come before the Court of Appeal in the wake of Howe. Ten years on, after all the judgments and exhortations, courts remain far from making anyone sit up and take notice. The time has surely come to try a different tack and to present courts with a range within which to fix a fine and a basis for calculation; without a link to turnover or profit, small firms will continue to suffer disproportionately. And while it is true that the SAP proposals are limited to failures involving a death, a significant increase in fines here would be a giant leap that might permeate down into non-fatal incidents.            

1 R v Howe & Sons Engineers Ltd [1999] 2 ALL ER 249.

2 HSE (2008), "Health and safety statistics 2007/08" (PDF format, 1.6MB) (on the HSE website). Detailed tables on the HSE website.

3 "The future of health and safety enforcement" (on the CCA website), 24 November 2008, London, Centre for Corporate Accountability, papers.

4 HSE (2009), "Health and safety offences and penalties in local authority enforced sectors 2007/2008 (PDF format, 65K)" (on the HSE website).

5 Centre for Corporate Accountability (2009), "Corporate crime update" (on the CCA website), no.27.

6 R v TDG (UK) Ltd [2008] EWCA Crim 3032.

7 R v FJ Chalcroft Construction Ltd [2008] EWCA Crim 770.

8 "Health and Safety (Offences) Act 2008 (PDF format, 85.6K)" (on the OPSI website).

9 "The role of the HSC and HSE in regulating workplace health and safety: Government response to the committee's third report of session 2007-08 (PDF format, 183K)", (on the Parliament website) HC 837.

10 Sentencing Guidelines Council (2008), "Magistrates' court sentencing guidelines (PDF format, 1.2MB)" (on the Sentencing Guidelines website).

11 Sentencing Advisory Panel (2007), "Corporate manslaughter: Consultation document (PDF format, 369K)" (on the Sentencing Guidelines website). Latest position (external website).

12 HM Advocate v Munro & Sons (Highland) Ltd [2009] (on the Sentencing Guidelines website) HCJAC 10.

13 LH Access Technology Ltd and Border Rail & Plant Ltd v HM Advocate [2008] (on the Scottish Courts website) HCJAC11.

14 R v ESB Hotels [2005] EWCA Crim 132.

15 Unite (2008), "Lack of investigation 2001-2007 (PDF format, 813K)" (on the CCA website).

16 "Hazards", no.104, October/December 2008.

17 TUC (2008), "Focus on health and safety (PDF format, 1.3MB)", (on the TUC website)  TUC biennial survey of safety reps 2008.

18 R v Friskies Petcare Ltd [2000] 2 Cr App Rep (S) 401.

19 R v Colthrop Board Mills Ltd [2002] EWCA Crim 520.

20 R v Brintons Ltd, case no.99/00424/X5, 22.6.99.

Box 1: Aggravation and mitigation

The Howe criteria

The Sentencing Advisory Panel

In November 1998, the Court of Appeal, for the first time, set out criteria to help magistrates and judges impose appropriate fines on employers that breach health and safety legislation. The general level of fines was, said Scott Baker J, too low: "The objective of prosecutions for health and safety offences in the workplace 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." That said, "in general", fines should not be so large as to imperil the earnings of employees or create a risk of bankruptcy, although it added that there might be cases where the offences are so serious that the defendant ought not to be in business.

The Court of Appeal also emphasised 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". The court split the "relevant factors" that judges and magistrates should consider when setting a fine into three categories - criteria, matters, and aggravating and mitigating factors (some of which overlap).

The "criteria" are:

  • the failure - "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";
  • death - "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";
  • profit - "a deliberate breach of the health and safety legislation with a view to profit seriously aggravates the offence... Financial profit can often be made at the expense of proper action to protect employees and the public"; and
  • size - the size of a company and its financial strength or weakness will affect the level of the fine, but not the standard of care.

Other matters that may be relevant to the sentence are:

  • the degree of risk and extent of the danger created by the offence;
  • the extent of the breach - whether the failure was an isolated incident or continued over a period; and
  • "importantly, the defendant's resources and the effect of the fine on its business".

Aggravating factors include:

  • a failure to heed warnings; and
  • "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".

Mitigating factors include:

  • prompt admission of responsibility and a timely plea of guilt;
  • steps to remedy deficiencies after they are drawn to the defendant's attention; and
  • a good safety record.

In cases of manslaughter or for a breach of health and safety legislation where a death is involved, the Sentencing Advisory Panel (SAP) advises that the critical factor in determining the culpability of the offender is the extent to which it fell below the appropriate standard.

Relevant factors will include a failure to keep pace with changing standards, the degree of risk, the extent of the danger, and whether the death was the result of an isolated or continuing breach of duty.

To help fix the sentence in the light of the above, the SAP states that judges will have to take account of aggravating and mitigating factors (as they do for other health and safety offences).

Aggravating factors affecting the level of harm are:

  • offences will be most serious where there has been more than one death and that this was reasonably foreseeable; and
  • serious injury has been caused in addition to the death - "indeed, it is often a matter of chance whether or not injuries are so severe as to result in death".

Aggravating factors affecting the degree of culpability are:

  • failure to act upon advice, cautions or warning from regulatory authorities (including previous incidents of a similar nature);
  • failure to heed relevant concerns of employees or others;
  • carrying out operations without an appropriate licence;
  • action or lack of action prompted by financial or other inappropriate motives (if "a standard of care has been breached deliberately with a view to profit, this will be a seriously aggravating feature". Also, while organisations such as charities and public bodies do not make profits, they "might still deliberately compromise safety standards"); and
  • corporate culture encouraging or producing tolerance of breach of duty (attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged or produced tolerance of the relevant failure).

Mitigating factors are:

  • an employee acting outside authority or failing in duties (although this is not a defence for an employer faced with a health and safety prosecution. It will also not be particularly prominent in a corporate manslaughter conviction, which is designed to exclude actions of maverick employees);
  • ready cooperation with authorities and steps taken to remedy safety failures as soon as possible after the offence, although "a court is likely to give credit only where the offender has initiated remedial action of its own volition rather than under pressure from the enforcement authorities"; and
  • a good safety record - "An excellent record might be considered relevant for some offences under the HSW Act involving death, but there may be few (if any) cases where an organisation in gross breach of its duty of care would have such a record or, even if it did, where it should have a significant effect on sentence."

Box 2: TDG (UK)

On 29 July 2008, the Court of Appeal reduced fines imposed on TDG (UK), a large warehouse distribution firm, from £325,000 to £275,000, after it decided that the judge had made insufficient allowance for the mitigating factors in the case and for the role played by the co-defendant.

The case concerned a TDG driver who had been killed by a trailer that ran back towards his own trailer, crushing him. Although the immediate cause was that the driver of the second unit - who was charged as a co-defendant - had failed to apply the handbrake, TDG had not ensured the implementation of a system that would have resulted in the application of an independent parking brake on the uncoupled trailer.

TDG was fined:

  • £250,000 under s.2(1) of the HSW Act, for failing to ensure the safety of its employee; and
  • £75,000 under reg. 3(1) of the MHSW Regulations 1999, for failing to carry out a suitable and sufficient risk assessment.

Although the Court of Appeal reduced each fine by £25,000, its judgment does not advance the law significantly. The sentencing judge, it concluded, had not properly taken into account the fact that TDG had pleaded guilty at the earliest opportunity and had taken significant steps to remedy the systemic failure after the death. The judge had, however, correctly applied the aggravating factors, which were the death of an employee and the "long-standing" nature of the systemic failures that contributed to the incident.

Box 3: Imprisonable offences

In addition to 34 immediate and suspended prison sentences for manslaughter, a further 23 individuals have been jailed for other offences that are related to health and safety at work, nine of which have been imposed since May 2008. (These sentences exclude asbestos waste and dumping, and dangerous driving offences.) Of the 23 offences:

  • 10 were for ignoring prohibition notices;
  • four were for asbestos offences;
  • two were for conspiracy offences,
  • three were for perverting the course of justice;
  • assault on an inspector, forging of a diving certificate and forging a safety certificate, each accounted for one; and
  • one was a mis-sentence under s.7 of the HSW Act, which did not carry a jail sentence at the time.

Box 4: A fairer basis for fines

Averaged annual turnovers are also likely to prove a fairer base for fines than profits, which can vary significantly from year to year and have nothing whatsoever to do with a company's underlying finances: an example from table 7 is that of Nightfreight, which was fined £150,000 in 2006 but, in the preceding two years had made a £6.2 million pre-tax loss in 2005 following restructuring and a £5.1 million profit in 2004. Its fine, incidentally, based on 2.5% turnover, would have been £3 million.

But even where profits are used, there is little consistency - not only between fines for different instances, but also for the same death. In 2008, for example, sentencing the two protagonists involved in a fatal outbreak of legionnaire's disease in 2003 in Hereford, the judge specifically apportioned blame equally and fined the two companies involved £300,000 each. But in 2006, HP Bulmer and Nalco had made pre-tax losses of £2.8 million and £4.5 million, so the fine is unlikely to be of equal impact.

Table 1: HSE prosecutions and fines per offence, 1986/87-2007/08

 

Cases prosecuted

Informations (offences)

Convictions (offences)

Average fine (per offence)

Adjusted fine (per offence)1

1986/87

n/a

2,199

1,771

£410

£410

1987/88

1,350

2,337

2,053

£792

£427

1988/89

1,409

2,328

2,090

£541

£541

1989/90

1,557

2,653

2,289

£783

£739

1990/91

1,397

2,312

1,991

£903

£728

1991/92

1,425

2,424

2,126

£1,181

£970

1992/93

1,324

2,157

1,865

£1,390

£1,390

1993/94

1,156

1,793

1,507

£3,103

£2,447

1994/95

1,111

1,803

1,499

£2,873

£2,677

1995/96

1,087

1,767

1,451

£2,572

£2,572

1996/97

861

1,490

1,195

£5,274

£3,266

1997/98

935

1,627

1,284

£4,694

£3,805

1998/99

1,038

1,759

1,512

£4,861

£3,349

1999/00

1,096

2,115

1,616

£6,820

£4,651

2000/01

1,025

1,973

1,490

£6,226

£4,869

2001/02

1,059

1,986

1,522

£8,234

£5,468

2002/03

908

1,659

1,273

£6,251

£5,555

2003/04

963

1,720

1,317

£9,633

£6,524

2004/05

712

1,320

1,025

£12,525

£7,010

2005/06

573

1,056

840

£28,790

£6,412

2006/07

613

1,051

852

£15,436

£9,011

2007/082

565

1,137

839

£12,896

£7,809

1 Average fine adjusted to exclude exceptional fines of £100,000 and over.  
2 Provisional figures.

Source: Compiled from HSC annual reports, annual statistical supplements, HSE reports on penalties, online tables and supplementary information requested from HSE/National Statistics.

Table 2: HSE and local authority prosecutions

 

Offences prosecuted

Convictions

Average fine per conviction

Average adjusted fine per conviction1

 

HSE

LAs

HSE

LAs

HSE

LAs

HSE

LAs

2003/04

1,720

410

1,317

354

£9,633

£4,375

£6,524

£3,963

2004/05

1,320

332

1,025

281

£12,525

£5,899

£7,010

£4,848

2005/06

1,056

257

840

247

£28,790

£9,674

£6,412

£4,935

2006/07

1,051

340

852

314

£15,436

£6,982

£8,723

£5,602

2007/082

1,028

354

839

334

£12,896

£7,663

£7,809

£5,650

1 Average fine adjusted to exclude exceptional fines of £100,000 and over.  
2 Provisional figures.
Source: HSE online tables.

Table 3: Cases taken against directors under s.37(1) of the HSW Act

Year

2002/03

2003/04

2004/05

2005/06

2006/07

2007/08

Guilty

9

13

6

8

17

8

Not guilty

3

2

2

3

0

0

Adjourned or not concluded

2

0

0

0

5

2

Withdrawn or not taken

6

2

4

1

0

3

Total

20

17

12

12

22

13

Source: HSE Board paper no.HSE/08/80 (PDF format, 714K) (on the HSE website).

Table 4: Enforcement notices served 1990/91-2007/08

Notices issued by type

Improvement (HSE)

Deferred prohibition (HSE)

Immediate prohibition (HSE)

Total notices (HSE)

Total notices (HSE, LAs, ORR)

1990/91

8,489

227

4,022

12,738

n/a

1991/92

8,395

222

3,802

12,419

n/a

1992/93

7,462

201

4,251

11,914

n/a

1993/94

6,484

144

3,961

10,589

n/a

1994/95

6,512

124

4,172

10,808

n/a

1995/96

5,219

82

3,385

8,686

n/a

1996/971

3,770

165

3,509

7,444

n/a

1997/981

4,411

181

4,319

8,911

n/a

1998/99

6,353

199

4,348

10,900

n/a

1999/00

6,972

196

4,172

11,340

17,440

2000/01

6,671

147

4,238

11,056

16,866

2001/02

6,712

116

4,254

11,082

17,042

2002/03

8,140

113

5,071

13,324

19,104

2003/04

6,798

81

4,456

11,335

17,415

2004/05

5,186

49

3,236

8,471

14,891

2005/06

3,925

38

2,630

6,593

13,363

2006/07

5,139

54

3,041

8,234

15,2342

2007/083

4,512

44

3,159

7,715

13,7502

1 During these two years, inspectors could serve "notices of intent" as an alternative to improvement notices. Had the former not been available, the number of improvement notices would have been 540 higher in 1996/97 and 630 higher in 1997/98.  
2 Includes figures from the Office of Rail Regulation (ORR) (following transfer of railway responsibilities from the HSE in April 2006). ORR served 26 improvement notices in 2006/07 and 14 immediate prohibition notices. In 2007/08, the totals were 16 and nine respectively.  
3 Provisional figures.
Source: HSE penalties reports, online tables and previous HSBs.

Table 5: Fines of £100,000 and above 1975-2009 (cases1)

Fine imposed

1.1.75-31.3.03

2003/04

2004/05

2005/06

2006/07

2007/08

1.4.08-16.2.09

£15 million

0

0

0

1

0

0

0

£7.5 million

0

0

0

1

0

0

0

£4 million

0

0

0

0

1

0

0

£3.5 million

0

0

0

1

0

0

0

£2 million

0

0

1

0

0

0

0

£1 million-£1,999,999

3

0

0

1

1

0

0

£800,000-£999,999

0

0

0

0

0

0

0

£700,000-£799,999

1

1

0

0

0

0

0

£600,000-£699,999

0

0

0

0

0

1

2

£500,000-£599,999

5

0

0

0

0

0

0

£400,000-£499,999

2

0

0

2

1

0

1

£300,000-£399,999

6

1

3

2

2

2

3

£200,000-£299,999

21

5

8

7

7

12

10

£100,001-£199,999

26

12

6

3

11

13

14

£100,000

19

5

4

6

17

8

7

Total

83

24

22

24

40

36

37

1 Cases can include more than one offence.
Source: Howard Fidderman.

Table 6: The effects of the Health and Safety (Offences) Act 2008

HSW Act duties, sections and offence

Present

Changes introduced by the 2008 Act

 

Summary

Indictment

Summary

Indictment

General duties on employers (ss.2-6)

Maximum fine £20,000

Unlimited fine

12 months' imprisonment, or maximum fine £20,000, or both

2 years' imprisonment, or unlimited fine, or both

Duties on employees (s.7)

Maximum fine £5,000

Unlimited fine

12 months' imprisonment, or maximum statutory fine, or both

2 years' imprisonment, or unlimited fine, or both

Duty not to interfere with, or misuse, things provided for health and safety (s.8)

Maximum fine £5,000

Unlimited fine

12 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

Duty not to charge employees for meeting statutory health and safety requirements (s.9)

Maximum fine £5,000

Unlimited fine

Maximum fine £20,000

Unlimited fine

Contravening requirements of health and safety regulations, licences or authorisations (s.33(1)(c))

Maximum fine £5,000

Unlimited fine

12 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

Contravening requirements imposed in relation to public inquiries or special investigations (s.33(1)(d))

Maximum fine £5,000

n/a

Maximum fine level 5 on Standard Scale (£5,000)

n/a

Contravening requirements imposed by an inspector (s.20 and s.33(1)(e))

Maximum fine £5,000

n/a

12 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

Contravening requirements imposed by an inspector (s.25 and s.33(1)(e))

Maximum fine £5,000

Unlimited fine

12 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

Preventing a person from appearing before an inspector or answering questions (s.33(1)(f))

Maximum fine £5,000

n/a

12 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

Contravening an improvement or prohibition notice (s.33(1)(g))

6 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

12 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

Obstructing an inspector (s.33(1)(h))

Maximum fine £5,000

n/a

51 weeks' imprisonment (England, Wales), 12 months imprisonment (Scotland), or a fine not exceeding level 5 on the standard scale, or both

n/a

Contravening any notice relating to the HSE's general powers to obtain information (s.27(1) and s.33(1)(i))

Maximum fine £5,000

Unlimited fine

Statutory maximum fine

Unlimited fine

Disclosing information in breach of s.27(4) or 28 (s.33(1)(j))

Maximum fine £5,000

2 years' imprisonment, or unlimited fine, or both

12 months' imprisonment, or statutory maximum fine, or both

2 years' imprisonment, or unlimited fine, or both

Offences relating to deception (s.33(1)(k), (l), (m))

Maximum fine £5,000

Unlimited fine

12 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

Pretending to be an inspector (s.33(1)(n))

Maximum fine £5,000

n/a

Maximum fine level 5 on Standard Scale (£5,000)

n/a

Failure to comply with a court remedy order (s.42 and s.33(1)(0))

6 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

12 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

Offence under "existing statutory provisions" for which no other penalty is specified

Maximum fine £5,000

Unlimited fine

12 months' imprisonment, or maximum £20,000 fine, or both

2 years' imprisonment, or unlimited fine, or both

Table 7: Death fines of £100,000 or more, profits and turnover, 1 April 2006-28 February 2009

Date

Company convicted

Annual turnover

Pre-tax profits2

Fine

Fine as % profit2

Fine as % annual turnover

Fine @ 2.5% turnover

Jan 09

Coastal Container Line1

£108.5m

£36.8m

£150,000

<1%

<1%

£2.7125m

Dec 08

RS Components1

£924.8m

£96.4m

£100,000

<1%

<1%

£23.12m

Dec 08

SITA UK

£733m

n/a

£180,000

n/a

<1%

£18.325m

Dec 08

Oakwood Leisure

£5.8m

(£58,221)

£250,000

(loss)

4.3%

£145,000

Dec 08

Taylor Woodrow

£600m

317.8m

£200,000

1.1%

<1%

£15m

Nov 08

Western Power Distribution

£261.6m

£115.8m

£200,000

<1%

<1%

£6.54m

Nov 08

PC Richardson & Co

£10.9m

£502,060

£100,000

19.9%

<1%

£272,500

Nov 08

Sellafield

£35m

(£7m)

£150,000

(loss)

<1%

£875,000

Nov 08

Shell UK

£13.4b

£1.32b

£150,000

<1%

<1%

£335m

Nov 08

Amec Group

£941m

£236.2m

£150,000

<1%

<1%

£23.525m

Oct 08

MITIE Engineering Services

£1,407.2m

£67.9m

£300,000

<1%

<1%

£35.18m

Oct 08

Aker Kvaerner Offshore Partner

£5.4b

n/a

£600,000

n/a

<1%

£135m

Oct 08

Talisman Energy

£1.13b

n/a

£600,000

n/a

<1%

£28.25m

Sep 08

Network Rail

£5.96b

1.6b

£120,000

<1%

<1%

£140m

Sep 08

Curot Contracts

n/a

£1.17m

£125,000

10.7%

n/a

n/a

Jul 08

HP Bulmer

n/a

(£2.8m)

£300,000

(loss)

n/a

n/a

Jul 08

Nalco

£144.9m

(£4.5m)

£300,000

(loss)

<1%

£3.6225m

Jun 08

Saint Gobain Building Distribution

£1,102m

n/a

£120,000

n/a

<1%

£2.755m

Jun 08

Dennis Eagle

£116m

£9.8m

£166,000

1.7%

<1%

£2.9m

May 08

LH Access Technology

£2.72m

£1.2m3

£240,000

500%3

8.8%

£68,000

May 08

Border Rail & Plant

£2.6m

£70,955

£240,000

338%

9.2%

£65,000

May 08

Oldbury (Banbury)

£64.3m

£23.8m

£100,000

<1%

<1%

£1.6075m

May 08

Tulip

£952m

£18.7m

£265,000

1.4%

<1%

£23.8m

May 08

Balfour Beatty Rail Projects

£7.49b

£201m

£200,000

<1%

<1%

£187.25m

Apr 08

MRX Engineering Support Services

£54.2m

£3.7m

£100,000

2.7%

<1%

£1.355m

Apr 08

Corus Group

£9.7b

£313m

£170,000

<1%

<1%

£242.5m

Apr 08

Edeco Petroleum Services Ltd

£11m

£119,300

£200,000

167.6%

1.8%

£270,000

Mar 08

First Capital East

£20.8m

£1.67m

£120,000

7.2%

<1%

£520,000

Mar 08

Alfred McAlpine Capital Projects1 (Carillion)

£3,951.7m

£94.4m

£250,000

<1%

<1%

£98.725m

Mar 08

JCB Earthmovers

£112.3m

£2m

£200,000

10%

<1%

£2.8075m

Mar 08

JC Bamford Excavators

£386.3m

£11.2m

£260,000

2.4%

<1%

£9.6575m

Feb 08

Corus Group

£9.7b

£313m

£225,000

<1%

<1%

£242.5m

Jan 08

ASDA Stores

£15.6b

£388m

£225,000

<1%

<1%

£390m

Nov 07

George Wimpey (North East)1

£2,671.9m

£140.9m

£300,000

<1%

<1%

£66.7975m

Nov 07

Port of Tilbury London

£72m

£38m

£100,000

<1%

<1%

£1.8m

Oct 07

WH Malcolm

£162m

£15m

£100,000

<1%

<1%

£4.05m

Oct 07

FJ Chalcroft (Construction)

n/a

£219,026

£260,000

119%

n/a

n/a

Oct 07

TNT Logistics UK

£450m

£2.4m

£120,000

5%

<1%

£11.25m

Oct 07

Prime Life

£23.2m

£4.6m

£100,000

2.2%

<1%

£580,000

Oct 07

AGC Automative (UK)

£13.3m

£2.4m

£150,000

6.25%

<1%

£332.,500

Sep 07

BSN Medical

£44.9m

(£5.7m)

£175,000

(loss)

<1%

£1.1225m

Sep 07

Permasteelisa (UK)

£45.7m

(£59,470)

£100,000

(loss)

<1%

£1.1425m

Sep 07

Dawson-Wam

£20.5m

£1.3m

£100,000

7.7%

<1%

£512,500

Aug 07

Corus UK1

£9.7b

£313m

£100,000

<1%

<1%

£242.5m

Jul 07

John Pointon and Sons

n/a

£1.2m

£620,000

43%

n/a

n/a

Jun 07

AEI Compounds

£14m

£900,000

£125,000

13.9%

<1%

£350,000

Jun 07

PJ Carey Contractors

£124m

£3.4m

£100,000

2.9%

<1%

£3.1m

May 07

CFR Group

£11.8m

£120,755

£100,750

83.4%

<1%

£295,000

May 07

Well Ops (UK)

£43m

£1.6m

£110,000

6.9%

<1%

£1.075m

Mar 07

Corus Group

£10.1b

£580m

£100,000

<1%

<1%

£252.5m

Mar 07

Network Rail

£3,873m

(£232m)

£4m

(loss)

<1%

£96.825m

Feb 07

Balfour Beatty Rail Infrastructure1

£2,026m

£66m

£180,000

<1%

<1%

£50.65m

Feb 07

Southern Cross Healthcare Group

£610.9m

(£17.4m)

£175,000

(loss)

<1%

£15.2725m

Jan 07

Nexen Petroleum UK1

£263m

n/a

£400,00

n/a

n/a

£6.575m

Dec 06

Corus UK1

£10.1b

£580m

£1.33m

<1%

<1%

£252.5m

Dec 06

Kubota (UK)

£82.6m

£6.8m

£175,000

2.6%

<1%

£2.065m

Nov 06

Pin Croft Dyeing and Printing Co

£34.9m

£3.45m

£100,000

2.9%

<1%

£872,500

Nov 06

Network Rail1

£3,873m

(£232m)

£130,000

(loss)

<1%

£96.825m

Oct 06

Nightfreight (GB)

£123.5m

(£6.25m)

£150,000

loss

<1%

£3.0875m

Sep 06

ENSCO

£22.45m

£1.5m

£115,000

7.7%

<1%

£561,250

Aug 06

Scottish Power

n/a

£805m

£400,000

<1%

n/a

n/a

Jun 06

Royal Mail Group

£9.056b

£395m

£150,000

<1%

<1%

£226.4m

Jun 06

Romec

£191.96m

£3.019m

£100,000

3.3%

<1%

£4.799m

May 06

John Doyle Construction1

£137.4m

£4.53m

£250,000

5.5%

<1%

£3.435m

May 06

Clifton Steel

n/a

£123,056

£150,000

122%

n/a

n/a

May 06

Exterior International

£61.9m

£2.23m

£100,000

4.5%

<1%

£1.5475m

Apr 06

Otis1

$9.6b

$1.7b

£400,000

<1%

<1%

$240m

Apr 06

Joseph Ash Galvanising

£30.8m

£1.24m

£150,000

12.1%

<1%

£770,000

1 Turnover and profit figures are for parent or holding company (or similar) returns
2 Brackets indicate the company made a loss in the year
3 Approximate figures
Source: Howard Fidderman.