- Maximum penalties for section 33 HSWA offences
- Breach of duties under sections 2 to 6 HSWA
- Offences in the magistrates' court only ("summary offences")
- 'No separate penalty'
- Compensation orders
- Community orders
- Disqualification orders
- Power of court to order remedial action
- Victim surcharge
Maximum penalties for section 33 HSWA offences
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, which will be determined by the application of the sentencing guideline.
2. The maximum sentence for health and safety offences depends on the date that the offence was committed and the court that passes sentence. This is because the Health and Safety (Offences) Act 2008 increased penalties for some offences committed post 16th January 2009 (by increasing the maximum fine and introducing imprisonment for certain offences) and Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (which came into force on 12th March 2015) had the effect of increasing the level of most fines available for magistrates' courts to an unlimited fine (previously 20,000 for most health and safety offences). However, the increase will only apply in respect of offences committed after 12th March 2015. It is obviously important to establish the maximum sentence which applies in your case.
Further guidance about where a case should be heard is available in the Plea before venue and allocation section.
Breach of duties under sections 2 to 6 HSWA
3. The maximum sentence for failing to discharge a duty under these sections depends on the date of the commission of the offence For offences committed before 16th January 2009, the offence carries a maximum penalty in the magistrates' court of a £20,000 fine. The maximum penalty in the Crown Court is an unlimited fine.
4. For offences committed between the 16th January 2009 and before the 12th March 2015, the offence carries a maximum fine on conviction in the magistrates' court of £20,000 or imprisonment for a term not exceeding 6 months or both. The maximum penalty in the Crown Court is an unlimited fine or imprisonment not exceeding two years or both.1
5. For offences committed on and after the 12th March 2015 the maximum penalty in the magistrates' court is an unlimited fine2 or imprisonment for a term not exceeding 6 months or both. In the Crown Court, the maximum penalty is an unlimited fine or imprisonment not exceeding two years or both.
Offences in the magistrates' court only ("summary offences")
6. Certain offences, such as falsely pretending to be an inspector or intentionally obstructing an inspector, are triable only in the magistrates' court. Offences committed before 16th January 2009 attract a maximum fine of level 5 on the standard scale. For offences committed between the 16th January 2009 and before the 12th March 2015 the maximum for pretending to be an inspector remains the same but intentionally obstructing an inspector also carries imprisonment for a term not exceeding six months.3 For offences committed on and after the 12th March 2015 the maximum penalty for pretending to be an inspector is an unlimited fine4, for an offence of obstructing an inspector the maximum penalty is an unlimited fine or six months imprisonment or both.
Employers' Liability (Compulsory Insurance) Act 1969
7. 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 offences. They are currently unaffected by section 85 and remain unaltered. These offences are triable only in the magistrates' courts.
'No separate penalty'
8. 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 imposed.
9. 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 offence5. A court must consider making a compensation order in any case where it is empowered to do so6. If the court does not make a compensation order when it is empowered to do so, it must give reasons for its decision. Loss, damage or injury has to result from the offence(s) charged, for a compensation order to be made.7
10. The maximum sum that could be awarded by magistrates was £5,0008 in respect of each offence however this limit was removed for offences committed on/after 11th December 2013; 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 expenses9.
11. A compensation order can be imposed alongside a separate sentence or as a penalty in its own right. 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 priority10 as it does over the victim surcharge.
12. 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 means, and the defendant and the prosecutor can make representations to the court as to the loss suffered by the victim. 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.
13. The prosecutor should be ready to assist the court to reach the appropriate decision as to sentence, which includes drawing the court's attention to its powers to award compensation and inviting them to make such an order where appropriate. Normally, the loss will be proved to the court by way of a witness statement and/or other documentary evidence.
14. Compensation orders may be particularly appropriate where:
- the loss is relatively small and easily quantifiable;
- the injured party is in need of immediate financial help, for example with funeral or other expenses resulting from the offence.
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, £10,000 for other types of loss), the victim would have to pursue a civil case under the small claims procedure in order to recover damages.
15. 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.
16. 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 (eg the accident report), loss or damage. Courts are guided by a table of suggested awards for various types of injury, although typical industrial injuries may not be included.
17. A community sentence combines punishment with activities carried out in the community. It can include one or more requirements of an offender. Overall, the requirements aim to punish offenders, to change offenders' behaviour so they don't commit crime in the future, and to make amends to the victim of the crime or the local community.
18. A court's powers to impose a community sentence on a convicted offender are set out in Part 12 of the Criminal Justice Act 2003. 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 sentence11. Such an order may impose one or more requirements on the offender, such as an unpaid work requirement. 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).
19. 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.
20. 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 property.12
21. "Connection with" does not require the offending to take place within the company, rather the offender's status at a company and the offence itself must be related to a company. The defendant does not need to have been a director, shadow director or de facto director of the company. The offence does not need to involve misconduct of a company's affairs or dishonesty. The court does not need to find that the individual is unfit to act as a company director.
22. 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 period. The maximum period of disqualification is five years in the magistrates' court and fifteen years in the Crown Court.
23. 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 indictable and may call into question that person's suitability to fulfil the role of director.
24. 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 order. If there is doubt as to whether an offence is "in connection with the management of a company"13, you may seek further advice from Legal Adviser's Office.
Power of court to order remedial action
25. 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 order. Such orders are comparatively rare as matters have usually been remedied during the investigation either voluntarily or after the service of an enforcement notice.
26. This penalty may be particularly relevant where the case involves failure to comply with the requirements of an enforcement notice.
27. 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 orders14. 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 made.
28. It is an offence to fail to comply with an order made by the court under section 42.
29. Remedial orders are also available for corporate manslaughter offences. 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 require the organisation to supply details of compliance to the regulator.
30. Publicity orders15 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.
31. Where a court imposes a fine in respect of one or more offences, it must also order the convicted defendant to pay a surcharge16, the proceeds of which will be spent on services for victims and witnesses. 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 offences committed before 8 April 2016 for those defendants who are fined, the surcharge will be 10% of the fine value with a £20 minimum and a £120 maximum. For offences committed on and after 8 April 2016, For those defendants who are fined the surcharge will be set at 10% of the fine value with a £30 minimum and a £170 maximum.
- See HSWA 1974 Schedule 3A. Back to reference of footnote 1
- Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Back to reference of footnote 2
- See HSWA 1974 Schedule 3A. Back to reference of footnote 3
- Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Back to reference of footnote 4
- Sections 130 - 133 Powers of Criminal Courts (Sentencing) Act 2000. Back to reference of footnote 5
- Section 130(2A) into the PCC(S)A 2000. Back to reference of footnote 6
- Section 130(1) PCC(S)(A) 2000. Back to reference of footnote 7
- Section 40 (1) Magistrates' Courts Act 1980. Back to reference of footnote 8
- s.130(1)(b) PCC(S)A Compensation for bereavement is limited to those who can claim under the provisions of the Fatal Accidents Act 1976, that is, the spouse of the deceased, or, in the case of a minor, his parents (or mother in the case of an illegitimate child). Back to reference of footnote 9
- Magistrate's Court Sentencing Guidelines. Back to reference of footnote 10
- Section 148 Criminal Justice Act 2003. Back to reference of footnote 11
- Company Directors Disqualification Act 1986, s.2. Back to reference of footnote 12
- The test whether an offence is in "connection with the management of a company" is decided by looking at whether it has some relevant factual connection with the management of the company R v Goodman (1993). Back to reference of footnote 13
- HSWA Section 42(4). Back to reference of footnote 14
- Corporate Manslaughter and Homicide Act 2007 s.10. Back to reference of footnote 15
- Section 161A (1) of the Criminal Justice Act 2003. Back to reference of footnote 16