Tougher Penalties – The only way is up!

Private Member’s Bills are Public Bills introduced by MPs and Members of the Lords who aren’t government ministers. As with other Public Bills their purpose is to change the law as it applies to the general population.

The changes made by the Bill were first proposed following a joint review of the current maximum penalties for health and safety offences, which was carried out between February and September 1999 by the Home Office, the then Department of the Environment, Transport and the Regions, and the Health and Safety Executive.

Paul Simpson, Managing Director of Safetynett (UK) Limited reviews the principal objectives of the new Bill and sets out the key proposals.

What is the overall purpose of the Bill?

The overall purpose of the Bill is to raise the maximum penalties available to the courts in respect of certain health and safety offences by altering the penalty framework set out in section 33 of the Health and Safety at Work etc Act 1974.

What is the principal objective behind the changes?

The principal objective behind the changes is that sentences for health and safety offences be sufficient to deter those tempted to break the law, and sufficient to deal appropriately with those who do commit offences, in accordance with the Hampton (1) and Macrory (2) Reports.

• "Reducing administrative burdens: effective inspection and enforcement" by Philip Hampton. HM Treasury, March 2005
• "Regulating Justice: Making Sanctions Effective" Final Report by Prof Richard B Macrory. November 2006

What are the main proposals?

The Bill sets out the following proposals:

• Raising the maximum fine which may be imposed in the Magistrates’ Courts for breaches of health and safety regulations from £5000 to £20,000 (the Crown Court’s ability to impose unlimited fines for such breaches remains unchanged)

The power to impose a fine of £20,000 is already available in respect of some offences under the Health and Safety at Work etc. Act 1974, such as breaches of the general duties arising under sections 2 to 6.

There are countless health and safety regulations in force under the Health and Safety at Work etc. Act 1974 which will be affected by this proposal. Taking one example, a failure to carry out a suitable and sufficient risk assessment would, under the proposed law, carry with it a fine of up to £20,000 in the Magistrates’ Court (or an unlimited fine in the Crown Court which remains unchanged).

• Making imprisonment an option for more health and safety offences in both the Magistrates' and Crown Courts; and
• Allowing certain offences, which are currently only triable in the Magistrates' Court, to be heard in either the Magistrates' or the Crown Court, where the fines would be unlimited.

Under the 1974 Act, it is an offence under Section 33(1)(e) to contravene any requirement imposed by an inspector under Section 20 (for example, a requirement to give information relevant to an investigation or to leave a premises undisturbed after an incident). It is also an offence to prevent another person from appearing before an inspector or from answering an inspector’s questions (section 33(1)(f)). Both offences are currently only triable in the lower courts. The Bill makes them triable in the lower or higher courts.

Does the Bill conflict with the European Convention on Human Rights?

Article 6 of the ECHR is engaged by the combination of:

• Clause 1 of the Bill, which adds the new Schedule 3A to the 1974 Act, which in turn introduces imprisonment as a penalty for certain health and safety offences: and
• Section 40 of the 1974 Act, which imposes a reverse burden of proof on a defendant where the duty giving rise to the offence with which he has been charged is subject to the statutory qualification “so far as is reasonably practicable”, often referred to as “SFAIRP)

SFAIRP is a feature of most of the duties set out in sections 2 to 6 of the Act and is also found in certain provisions made under the 1974 Act and of the "existing statutory provisions". Broadly speaking, the other duties and prohibitions which are penalised under the Act are not subject to SFAIRP.

Any provision that imposes a reverse burden of proof is an inroad into the presumption of innocence enshrined in Article 6.2.

Despite this, if the reverse burden of proof is necessary, justified and proportionate then it will not be incompatible with the presumption of innocence. The courts have recently (2007) held that the burden imposed by section 40 of the 1974 Act is compatible with the ECHR and the fact that imprisonment was not an option for lesser offences was used as part of the argument.

The question that arises in the context of this new Bill is whether the addition of imprisonment, as a possible penalty when a person is convicted of any offence to which the reverse burden applies, means that this is no longer the case.

When will the Bill come into effect?

The Bill will have effect in relation to offences committed after the end of the period of three months beginning with the day on which the Bill receives Royal Assent.