Prosecution is the main means by which the health and safety enforcing authorities (mainly HSE and the local authorities) hold to account those alleged to have committed serious breaches of health and safety law.
Health and safety law provides few sentencing options for the courts, and conviction usually results in a fine.
However, the wider criminal justice system provides many ways by which to hold an offender to account. Some may be appropriate to health and safety offences. This is particularly true of those which could:
And alternative penalties are already used in many health and safety systems in Europe and Australia, for instance.
This is why HSE is considering what the impact would be of introducing alternative penalties for health and safety offences. We have raised with some key stakeholders the possible application of restorative elements in the justice system - for example, conditional cautioning. Considerable interest was shown.
We are now expanding this debate to include other alternative penalties such as administrative fines and adverse publicity orders. We also intend to commission research into the use of alternative penalties elsewhere.
A snapshot of the alternative sanctions that have been mentioned in the health and safety context, together with some suggested issues for discussion, can be found in the area regarding alternative pentalies. This list is not exhaustive, and we would welcome your views on these or any other penalties, which you can email to firstname.lastname@example.org
This work is part of a broader evaluation of the impact of HSC’s enforcement policy, due to be completed in 2006, that will ensure alternative penalties are considered as part of our overall approach to improving enforcement. It would be helpful to receive views on alternative penalties by the end of 2005.
What they are
The consultation process
What alternative penalties are being considered?
Probation for companies and directors
Adverse publicity orders
For HSC, the purpose of enforcement is to deal immediately with serious risk, help ensure sustained compliance with the law and hold failing duty-holders to account
Fundamental to HSC’s enforcement policy are the principles that enforcement is consistent and proportional to the seriousness of the breach and the risk that the breach creates. This accords with Cabinet Office guidelines as set out in the Enforcement Concordat. HSE achieves this through a risk-based approach that reserves prosecution for the most serious offences.
It is essential that any alternative sanctions adopted must be capable of application in a proportionate, consistent manner within the existing regulatory framework. Equally essential is that they are effective in changing duty-holder behaviour and contribute to achieving HSC’s agreed outcomes (PSA targets and strategic priorities)
Penalties used instead of, or in conjunction with, criminal prosecution for breaches of health and safety law serious enough to warrant consideration of criminal prosecution, and which, in addition to a punitive and deterrent purpose, might also have a restorative or restitutive element. At present, such penalties are either not available within the health and safety system or are not used.
Such alternatives to prosecution would need:-
HSC believes that alternative penalties could have a role to play within the framework of health and safety law enforcement as part of a wider overall approach to improving enforcement. We are therefore going to be examining options as part of our evaluation of the HSC Enforcement Policy Statement. The main phase of this will begin next year.
The Government wishes to see enforcement improved, coherent and effective. It believes that alternative and innovative penalties could have a role to play in this but only as part of a wider overall approach to improving enforcement.
We have already consulted some stakeholders for initial views on alternative penalties. And, following the Hampton Review, we are evaluating those views as well as gathering further preparatory information.
We intend to examine the evidence base in more detail via existing practices in other countries and by commissioning research to better understand the role (if any) that various alternative penalties could play in the GB health and safety system.
We would welcome views on any or all of the alternative penalty options. In particular:
Financial penalties where the dutyholder is subject to a variable fine, rather than a fixed penalty, and which are imposed by the regulator or enforcing authority without recourse to the courts. In the most likely scenario, the dutyholder can refuse to accept the administrative fine – in which case matters revert to consideration of a criminal prosecution in the normal way.
Some other EU Member States’ health and safety systems (eg, Germany, Spain, Portugal, Greece, Italy, Austria). Used in UK for some offences such as evading excise duty, carrying clandestine entrants to the UK, failure to deliver company accounts or meet pension funding requirements, and competition law contraventions.
In the UK, monies generated by administrative fines generally go to the Exchequer rather than being reserved for local restitutive purposes or retained by the regulatory body, and we anticipate this would also be the case for health and safety administrative fines.
Restorative Justice (RJ) processes typically provide the opportunity for all parties with a stake in a particular offence to resolve collectively how to deal with the aftermath of the offence and its implications for the future, in particular by enabling
In the criminal justice system, and to help communities deal with conflict in schools, the workplace and neighbourhoods. In the workplace, RJ is being used by Thames Valley Police to address both intra-staff disputes and complaints by members of the public against individual police officers.
It is a relatively new idea in the UK, and is being trialled in the Youth Justice System. Abroad, RJ is often used as a diversion from prosecution; in 2002, the United Nations Economic and Social Council (UNESCO) adopted a resolution encouraging RJ and setting out basic principles for its use.
RJ may offer the following opportunities:
A statutory scheme, introduced by Part 3 of the Criminal Justice Act 2003, for formal cautioning dependent upon certain agreed actions by the offender. An offender agrees to comply with conditions to avoid being prosecuted. The conditions which may be attached to such a caution are those which have either or both of the following objects:–
Failing to comply with the conditions attached to the caution will result in criminal proceedings and the caution being cancelled.
Restorative Justice pilots in Thames Valley and West Mercia
An Enforceable Undertaking (EU) is a legal agreement in which an organisation has to carry out specific activities to improve worker health and safety and deliver benefits to industry and the broader community. An EU is an alternative to court action for an alleged breach of health and safety law.
Typically, an EU will only be used for minor offences and where no-one has been harmed, and compliance with an EU will cost an organisation considerably more than the amount they could expect to be fined in court. An EU will likely involve strict educational and safety promotion obligations for participants, as well as the cost of carrying out safety upgrades, audits and specified training. It will include a commitment to future safety standards, including steps taken to ensure the specific type of incident does not recur.
Used in several Australian States Health and Safety systems – for example, see the following information:
issued by enforcing authority, typically subsequent to a health and safety inspection or investigation, as opposed to ‘on the spot’.
Used in several Australian States’ health and safety systems.
HSE has commissioned research to explore the scope for devolving an enforcement role over unregistered installers to the Council of Registered Gas Installers (CORGI) possibly through the use of fixed penalty fines.
imposed by the health and safety inspector ‘there and then’.
Both variants of fixed fine typically involve smaller sums than would be available to the court upon conviction of an offence.
Court orders to ensure that remedial work is undertaken by duty-holders.
It is already the case that section 42 of the Health and Safety at Work etc Act gives the court, following conviction of an offender, power to order the cause of the offence to be remedied. This may be done in addition to, or instead of, otherwise imposing a punishment.
It has been suggested that greater use should be made of this power. However, a person who is the subject of a remedial order made under section 42 then has no liability under health and safety law in respect of the matters covered by the order insofar as they continue during the time fixed by the order or any further time allowed by the court.
Companies and Directors on conviction being placed on probation for offences committed. Any further offence within a set limit of time would result in the original offence being punished.
Companies Act but rarely invoked. Used in health and safety systems in USA.
Offenders are required to publicise their failings. This could fit in with restorative justice and conditional cautions. These contain the key elements of reasoning in criminal justice: deterrence, retribution and rehabilitation.
Used in a health and safety context in some states in Australia.
This list is not exhaustive, and its purpose is to promote discussion rather than provide a policy perspective. There may be other options for alternative penalties – for instance equity fines, anti-social behaviour orders – you would like to raise. If so, we would welcome your views.