1. Breaches of the HSWA and the relevant statutory provisions are offences under section 33 HSWA. A summary of the maximum fines and periods of imprisonment that may be imposed for an offence under section 33 can be found in the table of penalties at the end of this section, under Model Examples. You should remember that these are the maximum penalties available to the courts and do not indicate the size of penalty that should be imposed on a defendant in any particular case, as there is no concept of a tariff in health and safety cases.
2. Failure to discharge a duty under these sections carries a maximum fine on conviction in the magistrates' court of £20,0001. In the Crown Court, the maximum penalty is an unlimited fine.
3. For breach of the terms of an improvement or prohibition notice, or of a remedy order made by the court2, the maximum penalty on conviction in the magistrates’ court is a £20,000 fine and/or 6 months' imprisonment3. On conviction in the Crown Court, the maximum penalty is an unlimited fine and/or two years’ imprisonment.
4. Certain offences, such as failing to comply with a requirement of an inspector using his/her section 20 powers and intentionally obstructing an inspector, are triable only in the magistrates’ court4. These offences attract a maximum fine of level 5 on the standard scale5, which is £5,000 at present6.
5. The maximum sentence for any other health and safety offence, unless otherwise stated (for example offences under the Employers’ Liability (Compulsory Insurance) Act 1969 – see below), is set out in section 33(3) HSWA. This includes breaches of:
6. These offences are punishable on conviction in the magistrates’ court by a fine up to £5,000, and on conviction in the Crown Court by an unlimited fine7.
7. However, where a person is convicted in the Crown Court of any of the above offences that consists of a breach of licence requirements or certain provisions relating to explosives, the maximum penalty is two years’ imprisonment and/or an unlimited fine8.
8. Many offences committed on or after 16 January 2009 are subject to higher maximum penalties (see the Summary table). For example, for offences relating to breaches of health and safety regulations, magistrates’ courts may impose a fine of up to £20,000. In addition, imprisonment is a sentencing option in respect of many offences, both in the magistrates’ court and the Crown Court. Note that magistrates are currently limited to imposing custodial sentences up to a maximum of 6 month9. Sentences of up to 2 years’ imprisonment are available to the Crown Court.
9. The maximum fines for offences under the Employers Liability (Compulsory Insurance) Act 1969 are £1,000 (level 3 on the standard scale) in respect of s.4 offences, and £2,500 (level 4 on the standard scale) in respect of s.5 offences10. These offences are triable only in the magistrates’ courts.
10. Where the defendant has been convicted of more than one offence, a magistrates’ court is entitled to impose a penalty for one offence and make an order of ‘no separate penalty’ for the remaining offences, if it is thought that an adequate sentence has already been imposed11.
11. Both the magistrates and the Crown Court have a discretionary power to make an order requiring a convicted defendant to pay compensation for any personal injury, loss or damage resulting from the offence12. If the court does not make a compensation order when it is empowered to do so, it must give reasons for its decision13.
12. The maximum sum that can be awarded by magistrates was £5,000 in respect of each offence however this limit was removed for offences committed on/after 11th December 201314; the Crown Court can order an unlimited sum to be paid as compensation. An order can be made in favour of the relatives and dependants of a deceased person, in respect of bereavement and funeral expenses15.
13. A compensation order could be imposed alongside a separate sentence or as a penalty in its own right16. Where both a fine and a compensation order are appropriate but the offender lacks the means to pay both, the compensation order payments will take priority17.
14. The amount of compensation should be such as the court considers appropriate. In making the order, the court must have regard to the defendant's means18, and the defendant and the prosecutor can make representations to the court as to the loss suffered by the victim19. A victim personal statement provided to the court after conviction may contain information that is relevant to the court in considering an order. Compensation paid to the victim is deducted from any damages received in civil proceedings. For this reason, the existence of a pending civil claim should not in itself prevent an award of compensation.
15. A compensation order should not usually be accompanied by an order which would have the effect of reducing the defendant’s ability to pay the compensation, such as disqualifying the defendant from acting as a director (see below) in circumstances where the disqualification would effectively prevent the defendant from earning the money required to pay the compensation order20.
16. The offender may apply for review of the compensation order at any time before the whole of the money under the order has been paid21. For such an application to be successful, there must have been a change to the factual basis upon which the original court based its decision (e.g. a substantial and unexpected reduction in the means of the offender).
17. In cases where a compensation order is available but the magistrates do not raise this issue themselves, you are entitled to make representations to the court as to whether an order may be appropriate. Normally, the loss will be proved to the court by way of a witness statement and/or other documentary evidence.
18. Compensation orders may be particularly appropriate where:
In these situations, the victim might prefer a compensation award in the criminal proceedings without having to resort to civil litigation. Where the loss amounts to less than the small claims limit at the county court (currently £1,000 for personal injury, £5,000 for other types of loss), the victim would have to pursue a civil case under the small claims procedure in order to recover damages.
19. Where the injury or loss is not easily quantifiable or is disputed by the defendant (for example, the extent of injuries suffered), the court may well require additional evidence (such as an independent medical report). In these circumstances, the court may adjourn the hearing until the injured party can provide further evidence or the court may decide not to make an order, leaving the issue of compensation to the civil proceedings.
20. For this reason, where you intend to draw the court’s attention to its power to grant a compensation order, it is advisable to inform the victim or his/her family of this in advance and invite them to collate evidence to help the court (for example, a doctor’s letter, medical report or breakdown of funeral expenses). Remember that, as the prosecutor, your role in such a situation is to assist the court and not to represent the victim. You may also be able to assist the court by providing any documentary evidence that you have of the injury (e.g. the accident report), loss or damage. Courts have received a table of suggested awards for various types of injury, although typical industrial injuries may not be included.
21. A court’s powers to impose a community sentence on a convicted offender are set out in Part 12 of the Criminal Justice Act 200322. Where a person aged 16 or over is convicted of an offence, the court may impose a community order provided it is of the opinion that the offence (or the combination of the offence and any associated offences) was serious enough to warrant such a sentence23. Such an order may impose one or more requirements on the offender, such as an unpaid work requirement24. The court must be of the opinion that the particular requirement(s) imposed are the most suitable for the offender, and that the resulting restrictions on his/her liberty are commensurate with the seriousness of the offence(s)25.
22. Whilst the court has the power to impose a community order on an individual convicted of a health and safety offence, in most cases, the court is likely to consider a fine to be a more appropriate sentence. The prosecution may advise the court on its sentencing powers and any relevant sentencing guidelines but should not seek to influence the court's discretion.
23. The court is empowered to make a disqualification order against a person convicted of an indictable offence in connection with the promotion, formation, management, liquidation or striking off of a company or with the management of a company's property26.
24. Disqualified persons must not, without the leave of the court, be a director, liquidator or administrator of a company, or manager of company property, or in any way, directly or indirectly, be concerned or take part in the promotion, formation or management of a company for a specified period27. The maximum period of disqualification is five years in the magistrates' court and fifteen years in the Crown Court28.
25. A disqualification order may be appropriate, for example, for directors or managers convicted of an offence under sections 7 or 37 HSWA where the offence relates to the management of a company’s affairs, activities or business. Such offences are indictable29 and may call into question that person’s suitability to fulfil the role of director.
26. In all cases where an individual is convicted of an indictable offence “in connection with the management of a company”, the court should be reminded of its powers to make a disqualification order30. If there is doubt as to whether an offence is “in connection with the management of a company”, you should contact your Directorate legal liaison point, who may seek further advice from Legal Adviser’s Office.
27. Under section 42 HSWA, where a person is convicted of breaching a relevant statutory provision, and it appears to the court that it is in his/her/its power to remedy any matters in respect of the offence, the court can (in addition to or instead of any other sentence) order the defendant to take steps to remedy those matters. The time for compliance with the order and the steps to be taken to remedy the matters will be contained in the order31.
28. This penalty may be particularly relevant where the case involves failure to comply with the requirements of an enforcement notice.
29. When a person is convicted of acquiring, possessing or using an explosive article or substance in breach of relevant statutory provisions, the court may order the explosive article or substance in question to be forfeited and either destroyed or dealt with in any other way the court orders32. You should note that, where the owner of the article or substance or any other interested party applies to the court on the question of a forfeiture order, the court must not make the order without giving that person an opportunity to justify why the order should not be made33.
30. It is an offence to fail to comply with an order made by the court under section 42 34.
31. Remedial orders are also available for corporate manslaughter offences35. Corporate manslaughter cases are prosecuted by the CPS, but where HSE is the relevant regulatory authority it should be consulted as to which standards are appropriate and an order may requite the organisation to supply details of compliance to the regulator.
32. Publicity orders36 are available in corporate manslaughter cases only and require the organisation to publish information about the offence and sentence. The prosecution should suggest the terms of the order by providing the court, in advance of the sentencing hearing, with a draft form of the order. Although the CPS will prosecute such cases, HSE may well have been involved in a joint investigation and is likely to be consulted about the terms of the draft order since it can provide invaluable advice about what will constitute effective publicity within the relevant industry.
33. Where a court imposes a fine in respect of one or more offences, it must also order the convicted defendant to pay a surcharge 37, the proceeds of which will be spent on services for victims and witnesses. The surcharge was £15 . However for offences committed on or after 1 October 2012 38 the surcharge is payable by a wider range of offenders and varies according to the type of sentence imposed. It is no longer just limited to fines. For those defendants who are fined the surcharge will be set at 10% of the fine value with a £20 minimum and a £120 maximum.