Criminal Liability in Regulatory Contexts Responses - Law ...

1.867 Due to a series of budgetary and political pressures, Health and Safety Executive
(HSE) inspectors are increasingly likely to use penalty notices (improvement
notices and prohibition notices) as forms of enforcement in place of prosecution.
Between 1999/2000 and 2008/09, the absolute number of HSE prosecutions fell
by 48%. This decline also applies to those incidents which we might expect are
most likely to result in prosecution – fatal injures to workers. Between 1999/00
and 2006/07, the number of worker deaths that resulted in prosecution by HSE
fell by 39% (from 129 to 79). This collapse is most dramatically illustrated in the
rate of prosecutions following deaths at work – falling from 46% to 28% in six
years. An instructive context in which to place such low and declining levels of
prosecution is HSE’s own longstanding research-based finding, to the effect that
in the majority of cases of occupational injury, the primary cause is located within
management; thus, for example, the HSE’s Accident Prevention Advisory Unit
has shown that 70% of safety incidents could have been prevented by
management action. 24
Judges of the Court of Session
1.868 We agree in principle. We have some concern that some failures to attain
appropriate standards of behaviour may be seen as acceptable and that a civil
penalty may be seen as a cost. A careful system of stop notices may avoid such
risks.
HSE
1.869 The term “unjustified risk-taking” is an interesting concept that does not readily
read across to health and safety law. The law we enforce does not approach risk
in terms of justifying the level of risk that may remain. Rather, the approach is to
identify any risk and then mange that risk done to a level so far as is reasonably
practicable. The steps that should be taken will be related to the degree of risk
and what would be considered as proportionate in the circumstances. If this
proposal is in relation to offences where the duty holder is calculating how much
risk taking they can justify and still remain within the law, then we do not see how
this concept would apply within any health and safety regulatory regime.
1.870 In general, the majority of legislative requirements in health and safety law do not
require the prosecution to prove a fault element. These offences are directly
concerned with the prevention of harm to the health and safety of workers an
those affected by work activities whether the emphasis is on the management of
risks, so far as it reasonably practicable. The difficulty with this “fault element”
concept is the emphasis on linking the conduct to the harm done. Health and
Safety duties aim to reduce risk rather than focus upon harm done. This is
appropriate because it is the potential for harm that the law is addressing, not the
realisation of that harm. For example, the failure to provide instruction or training
may appear to be a minimal offence. This may be the case if the equipment in
use is a hammer, but where that equipment is a forklift truck, chainsaw or part of
a major chemical plant installation, the breach could lead to a serious
consequence.
24 Health and Safety Executive (1995) Improving compliance with safety procedures: reducing industrial
violations. Human Factors Research Group, Sudbury: HSE Books.
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