Weighing up the law
Laura White explains how code revisions might impact upon health and safety and fire prosecutions
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EFORE COMMENCING a prosecution under the Health and Safety at Work etc Act 1974 (HSWA), any regulations made under it or the Regulatory Reform (Fire Safety) Order 2005, the Health and Safety Executive or other enforcing authority (for fire safety offences, the appropriate fire authority), must be satisfied that the matter meets the requirements set out in the Code for Crown Prosecutors. This sets out general principles to be followed when deciding whether an entity or person should be charged with a criminal offence. Briefly, for charges to be brought in HSWA and related offences, a two stage test must be satisfied: • an evidential test – prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass this evidential stage must not proceed, no matter how serious or sensitive it may be. This is an objective test
• the public interest test – in every case where there is sufficient evidence to justify a prosecution or to offer an out of court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest. When deciding this, prosecutors are directed to consider various matters including: • • •
the seriousness of the offence the culpability of the suspect
the circumstances and injuries to the victim
• whether prosecution is a proportionate response
A revised code recently unveiled by the director of public prosecutions (DPP) came into force on 26 October 2018. Key changes include:
• under the revised guidelines on disclosure, prosecutors must consider whether there is any material held by the police, or available, which could affect the decision to charge a suspect with any crime. DPP Alison Saunders explained: ‘The explosion in digital evidence seen in recent years has brought real challenges for prosecutors. While it can strongly support the case for prosecution, there must also be rigorous examination of any evidence that assists the defence.’
•
for the first time, prosecutors must take into account the extent to which the suspect has benefitted from an alleged offence. Although aimed at assisting the court in recovering assets such as homes, luxury cars, designer clothes, jewellery or money, for many HSWA or related offences it will not be difficult for prosecutors to show that financial benefit flowed from non compliance – if only in notional cost savings
What all this means for fire, HSWA and related prosecutions remains to be seen, but the potential for more prosecutions can’t be underestimated. With its emphasis on improving workplace health as well as safety, and recent statistics showing a flatlining in work related ill health or even an increasing incidence for work related stress, anxiety and depression, organisations must be aware that enforcers will be looking closely at whether non compliance has reaped a financial benefit for an organisation. The net is tightening around those who
pay scant regard to health and safety obligations; the revised code is another incentive to ensure compliance. Where safety and health are sacrificed for financial gain, offenders can expect prosecution, hefty fines and potentially lengthy prison sentences. Health and safety compliance must be at the top of any boardroom’s agenda
Laura White is an associate in the health and safety team at Pinsent Masons
www.frmjournal.com MARCH 2019 47
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