Sentencing for Health and Safety Offences: Is the Court of Appeal Going Soft?

DOI10.1350/jcla.2008.72.5.523
Date01 October 2008
AuthorEdwin Mujih
Published date01 October 2008
Subject MatterComment
COMMENT
Sentencing for Health and Safety Offences:
Is the Court of Appeal Going Soft?
Edwin Mujih*
Keywords Health and safety offences; Sentencing guidelines; Mitigating
factors; Aggravating factors; Level of culpability and degree of harm
A review of recent cases decided by the Court of Appeal reveals a trend
by the court to reduce f‌ines imposed by lower courts on companies for
health and safety offences.1This development may be a source of
consternation among observers who advocate heavy f‌ines for com-
panies for breach of health and safety rules. It is worth asking whether
this development conf‌irms the general perception that the level of
sentencing for health and safety offences is too low.2By virtue of their
artif‌icial legal form, companies are commonly punished with f‌ines and it
is felt that the f‌ines should be high enough to bring home to companies
or other employers the message that the objective of health and safety
rules is to ensure a safe working environment for employees and mem-
bers of the public who may be affected by the employer’s activities. But
why has the Court of Appeal consistently adopted a lower level of
sentencing for companies in recent cases? In determining the level of
sentence, the courts are faced with the diff‌icult task of balancing the
seriousness of the offence with any mitigating factors in order to arrive
at what would be an appropriate f‌ine in the circumstances. The starting
point in this analysis is the case of Rv F. Howe & Son (Engineers) Ltd3
where the Court of Appeal, while warning that each case must be dealt
* Senior Lecturer in Business Law, London Metropolitan University; e-mail
e.mujih@londonmet.ac.uk.
1 For example in Rv Southampton University Hospital NHS Trust [2007] 2 Cr App R (S)
9, the Court of Appeal allowed an appeal by the hospital trust and reduced a f‌ine of
£100,000 to £40,000. In Rv Switchgear Engineering Services Ltd [2007] EWCA Crim
2758, the Court of Appeal allowed an appeal and reduced a f‌ine of £35,000 and
cost of £30,000 to £10,000 and £10,000 respectively. In Rv Clifton Steel Ltd [2007]
EWCA Crim 1537, a f‌ine of £150,000 was held to be manifestly excessive and
reduced to £100,000. In Rv Transco plc [2006] EWCA Crim 838, the Court of
Appeal reduced a f‌ine against Transco from £1 million to £250,000. Similarly, in Rv
Farrell and Hough Green Garage Ltd [2007] EWCA Crim 1896, the court reduced
f‌ines of £96,000 and £14,000 to £80,000 and £10,000 respectively.
2 It is signif‌icant that in the case of Rv F. Howe & Son (Engineers) Ltd [1999] 2 All ER
249 the Court of Appeal stated in strong terms that the level of f‌ines is too low.
Scott Baker J observed as follows: ‘As to the level of f‌ines imposed generally for
offences of this nature, it is the view of each member of this court that they are too
low and therefore not an appropriate yardstick for determining the level of f‌ine in
the present case. . . . Disquiet has been expressed in several quarters that the level
of f‌ine for health and safety offences is too low. We think there is force in this
argument and that the f‌igures with which we have been supplied support the
concern. There has been increasing recognition in recent years of the seriousness of
health and safety offences.’
370 The Journal of Criminal Law (2008) 72 JCL 370–386
doi:1350/jcla.2008.72.5.523
with according to its own particular circumstances, accepted the follow-
ing mitigating factors for sentencing: the previous safety record of the
company; prompt admission of responsibility and an early guilty plea;
the means of the company and the effect of the f‌ine on it; the extent of
the danger created by the offence and of the breach, for example was it
an isolated incident or a persistent one and steps to remedy def‌iciencies
after they are drawn to the defendants attention. On the other hand,
the court identif‌ied the following aggravating factors: the deliberate
breach of a duty to maximise prof‌its; where death results from the
breach and a failure to heed warnings. The court observed that the level
of risk involved and the size of the company and its lack of ability to
provide its own safety equipment do not count as mitigating factors. So
were the Court of Appeals decisions in the recent cases inf‌luenced by
the above mitigating factors? This comment analyses the factors that the
courts will consider when sentencing and examines recent cases where
the Court of Appeal has reduced f‌ines imposed on companies for breach
of health and safety laws with a view to determining whether this
development means that the judiciary is going soft on health and safety
offences. It is proposed to begin by examining brief‌ly the legislative
framework for health and safety offences.
The legislative framework
The main piece of legislation that regulates health and safety at work is
the Health & Safety at Work, etc. Act 1974. Most of the cases under
review concern a breach of the Act. The Act requires employers to
ensure the health and safety of employees and the public. Under s. 2(1)
of the Act, a failure to ensure, as far as is reasonably practicable, the
safety and welfare at work of employees is an offence. Section 3 creates
an offence in relation to the safety of other persons at the workplace.
Section 40 provides that in respect of breaches of the general duties it
shall be for the accused to prove that the requirement to do something
so far as is reasonably practicable to ensure the health and safety of
others have been met.4
The 1974 Act provides for three main systems of enforcement. These
are improvement notices, prohibition notices and f‌ines or imprison-
ment.5Of these three, improvement notices have a compliance effect
while f‌ines and imprisonment have a punitive effect. The Act is enforced
by the Health and Safety Executive (HSE) which adopts a compliance
approach6and hence prefers regulation through the issuing of enforce-
ment notices to prosecution. However, a comparison of f‌igures pub-
lished recently in 200506 with those published in the previous year
reveals a 25 per cent decrease in the number of enforcement notices
issued, a 23 per cent decrease in the number of offences prosecuted by
4 F. B. Wright, Criminal Liability of Directors and Senior Managers for Deaths at
Work [2007] Crim LR 949 at 961.
5Health and Safety Law 2007, Labour Research Department, 12, see http:/
/www.lrd.org.uk/index.php, accessed 2 August 2008.
6 E. Mujih, Implementing Corporate Social Responsibility: Punishment or
Compliance? (2007) 3(3) Social Responsibility Journal 79 at 81.
Sentencing for Health and Safety Offences: Is the Court of Appeal Going Soft?
371

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