Alternative penalties for health and safety offences

This consultations has now ended.

Prosecution is the main means by which the health and safety enforcing authorities (mainly HSE and the local authorities) hold to account those alleged to have committed serious breaches of health and safety law.

Health and safety law provides few sentencing options for the courts, and conviction usually results in a fine.

However, the wider criminal justice system provides many ways by which to hold an offender to account. Some may be appropriate to health and safety offences. This is particularly true of those which could:

• provide incentives to comply with the law;
• enhance the role of victims;
• offer more restitution to the business community and employees; or
• help ensure that lessons are learnt and offences are not repeated.

And alternative penalties are already used in many health and safety systems in Europe and Australia, for instance.

This is why HSE is considering what the impact would be of introducing alternative penalties for health and safety offences. We have raised with some key stakeholders the possible application of restorative elements in the justice system - for example, conditional cautioning. Considerable interest was shown.

We are now expanding this debate to include other alternative penalties such as administrative fines and adverse publicity orders. We also intend to commission research into the use of alternative penalties elsewhere.

A snapshot of the alternative sanctions that have been mentioned in the health and safety context, together with some suggested issues for discussion, can be found in the area regarding alternative pentalies. This list is not exhaustive, and we would welcome your views on these or any other penalties, which you can email to enforcement.policy@hse.gsi.gov.uk

This work is part of a broader evaluation of the impact of HSC’s enforcement policy, due to be completed in 2006, that will ensure alternative penalties are considered as part of our overall approach to improving enforcement. It would be helpful to receive views on alternative penalties by the end of 2005.

This consultation has now ended.

Alternative penalties - Some initial views

Background
What they are
Why now?
The consultation process
What alternative penalties are being considered?
Administrative fines
Restorative justice
Conditional cautioning
Enforceable undertakings
Fixed penalties
Remedial orders
Probation for companies and directors
Adverse publicity orders

Background

For HSC, the purpose of enforcement is to deal immediately with serious risk, help ensure sustained compliance with the law and hold failing duty-holders to account

Fundamental to HSC’s enforcement policy are the principles that enforcement is consistent and proportional to the seriousness of the breach and the risk that the breach creates. This accords with Cabinet Office guidelines as set out in the Enforcement Concordat. HSE achieves this through a risk-based approach that reserves prosecution for the most serious offences.

It is essential that any alternative sanctions adopted must be capable of application in a proportionate, consistent manner within the existing regulatory framework. Equally essential is that they are effective in changing duty-holder behaviour and contribute to achieving HSC’s agreed outcomes (PSA targets and strategic priorities)

What they are

Penalties used instead of, or in conjunction with, criminal prosecution for breaches of health and safety law serious enough to warrant consideration of criminal prosecution, and which, in addition to a punitive and deterrent purpose, might also have a restorative or restitutive element. At present, such penalties are either not available within the health and safety system or are not used.

Such alternatives to prosecution would need:-

• to fit the purpose of enforcement – that is, be effective in changing the behaviour of duty-holders and achieving improvements in health and safety outcomes, and
• to satisfy the principles underpinning the Health and Safety Commission’s (HSC) Enforcement Policy: proportionality, targeting, consistency and transparency.

Why now?

HSC believes that alternative penalties could have a role to play within the framework of health and safety law enforcement as part of a wider overall approach to improving enforcement. We are therefore going to be examining options as part of our evaluation of the HSC Enforcement Policy Statement. The main phase of this will begin next year.

The Government wishes to see enforcement improved, coherent and effective. It believes that alternative and innovative penalties could have a role to play in this but only as part of a wider overall approach to improving enforcement.

The consultation process

We have already consulted some stakeholders for initial views on alternative penalties. And, following the Hampton Review, we are evaluating those views as well as gathering further preparatory information.

We intend to examine the evidence base in more detail via existing practices in other countries and by commissioning research to better understand the role (if any) that various alternative penalties could play in the GB health and safety system.

We would welcome views on any or all of the alternative penalty options. In particular:

1. In principle, do you think each penalty could work in practice?
2. If so, would it have a beneficial effect?
3. Which type of duty-holder would respond best to the penalty? And why?
4. For large organisations, small organisations, or workers: what benefits could you see if the penalty was introduced – compared with the current situation?
5. Similarly, what disadvantages would the penalty bring?
6. What would you like to most see introduced and why?
7. If this type of alternative penalty was being introduced, how could you see your members\employees getting involved?
8. What alternative penalty would have the most and least beneficial effect on workplace co-operation?
9. What alternative penalty would have the best economic impact – for example by:
   • putting resource back into the industry;
   • imposing less administrative burdens;
   • contributing to a level competitive playing field, by removing the economic benefit of non-compliance?
10. Is there anything wrong with the current health and safety penalties regime? If so what?

What alternative penalties are being considered?

Administrative fines

What they are

Financial penalties where the dutyholder is subject to a variable fine, rather than a fixed penalty, and which are imposed by the regulator or enforcing authority without recourse to the courts. In the most likely scenario, the dutyholder can refuse to accept the administrative fine – in which case matters revert to consideration of a criminal prosecution in the normal way.

Where they are used

Some other EU Member States’ health and safety systems (eg, Germany, Spain, Portugal, Greece, Italy, Austria). Used in UK for some offences such as evading excise duty, carrying clandestine entrants to the UK, failure to deliver company accounts or meet pension funding requirements, and competition law contraventions.

Where the penalties go

In the UK, monies generated by administrative fines generally go to the Exchequer rather than being reserved for local restitutive purposes or retained by the regulatory body, and we anticipate this would also be the case for health and safety administrative fines.

Feasibility for use in GB health and safety system

• No statutory mechanism at present, so would need to be introduced through regulatory reform legislation.
• Would provide fast-track alternative procedure for appropriate categories of non-compliance.
• Would be acceptable to duty-holders as alternative to criminal prosecution and to enforcers if discretionary.
• But if replacing prosecution for some breaches, would require robust and independent appeals process – possibly to Magistrates Court or Employment Tribunal - to satisfy ECHR requirements for fair trial.

Possible issues for discussion

• Proportionality and consistency - what factors would point to using an administrative fine in a particular case?
• What about public interest in criminal prosecution – especially where there has been fatality, profit-driven disregard for health and safety, recklessness, etc?
• Appeals/representations by injured parties?
• Would administrative fines have same deterrent effect as criminal prosecution?
• How would the level of fine be determined? Public interest issues of open justice and transparency around closed-door negotiation between HSE and duty-holder

Restorative justice

What this is

Restorative Justice (RJ) processes typically provide the opportunity for all parties with a stake in a particular offence to resolve collectively how to deal with the aftermath of the offence and its implications for the future, in particular by enabling

• offenders to acknowledge the impact of what they have done and to make reparation, and
• victims to have their harm or loss acknowledged and amends made.

Where this is used

In the criminal justice system, and to help communities deal with conflict in schools, the workplace and neighbourhoods. In the workplace, RJ is being used by Thames Valley Police to address both intra-staff disputes and complaints by members of the public against individual police officers.

It is a relatively new idea in the UK, and is being trialed in the Youth Justice System. Abroad, RJ is often used as a diversion from prosecution; in 2002, the United Nations Economic and Social Council (UNESCO) adopted a resolution encouraging RJ and setting out basic principles for its use.

Feasibility for use in GB health and safety system

RJ may offer the following opportunities:

• giving victims and others, such as witnesses, a voice in outcomes;
• aiding rehabilitation, an important Government objective, by helping those who have been injured in the workplace back to work;
• helping to achieve behavioural and cultural change in failing duty-holders and within the sector in which they operate;
• creating tangible links between occupational health and safety and local communities;
• developing a cross-Government agenda – for example, by working with others such as the Environment Agency and using existing RJ processes and resources as developed by the police and voluntary organisations;
• demonstrating HSC/E’s response to the changing world.

Possible issues for discussion

• Trained and accredited practitioners needed to run a RJ system;
• Incentive - benefits to all parties:
  • Victim - reason and closure;
  • Company - reparation to improve CSR (corporate social responsibility) agenda and public relations; and
  • Society - input of resource otherwise lost in fines potentially going to improving H&S in industry or community;
• Both parties have to agree to participate. Parties get involved in solution.
• Who ultimately agrees solution: courts, HSE or HSE via courts, and who monitors/ensures compliance?
• If not introduced as add-on to criminal justice process, but as diversion from prosecution, offenders may be perceived as escaping proper sanction for wrong-doing.
• Transparency, consistency vital.

Conditional cautioning

What this is

A statutory scheme, introduced by Part 3 of the Criminal Justice Act 2003, for formal cautioning dependent upon certain agreed actions by the offender. An offender agrees to comply with conditions to avoid being prosecuted. The conditions which may be attached to such a caution are those which have either or both of the following objects:–

• Facilitating the rehabilitation of the offender,
• Ensuring that he makes reparation for the offence

Failing to comply with the conditions attached to the caution will result in criminal proceedings and the caution being cancelled.

Where this is used

Restorative Justice pilots in Thames Valley and West Mercia

Feasibility in the GB health and safety system

• Restorative Justice can be used as part of the Conditional Cautioning process, either as a condition of the offender's caution, or as the means by which the victim and offender propose the conditions that could be attached to the Conditional Caution.
• Used with those offenders who have ‘good records’ and where conventional prosecution may well serve to discourage and not encourage health and safety improvement and performance
• For use by enforcing authorities to relieve administration time and Court time.

Possible issues for discussion

• Consistency of use across health and safety enforcing authorities?
• Who checks compliance with the conditional caution?
• Admission of guilt by defendant, which means full evidence will have to be gathered prior to caution in order to allow criminal proceedings if caution not followed.

Enforceable undertakings

What these are

An Enforceable Undertaking (EU) is a legal agreement in which an organisation has to carry out specific activities to improve worker health and safety and deliver benefits to industry and the broader community. An EU is an alternative to court action for an alleged breach of health and safety law.

Typically, an EU will only be used for minor offences and where no-one has been harmed, and compliance with an EU will cost an organisation considerably more than the amount they could expect to be fined in court. An EU will likely involve strict educational and safety promotion obligations for participants, as well as the cost of carrying out safety upgrades, audits and specified training. It will include a commitment to future safety standards, including steps taken to ensure the specific type of incident does not recur.

Where these are used

Used in several Australian States Health and Safety systems – for example, see the following information:

• Western Australia – Worksafe Bulletin 4/2005: Enforceable undertakings
• Queensland – Dept of Industrial Relations: Law and penalties

Feasibility in the GB health and safety system

• Used with those offenders who have ‘good records’ and where conventional prosecution may well serve to discourage and not encourage health and safety improvement and performance.
• For use by enforcing authorities to relieve judicial system.
• Increasing compliance beyond legal requirement to help produce productive and exemplar workplace.

Possible issues for discussion

• May well generate innovative ideas from duty-holders, since companies apply for enforceable undertaking, submitting plan to be agreed.
• Who would check enforceable undertaking? How would checks be conducted? What standard of competence would there be?
• How to ensure objectivity and impartiality?
• Enforcing authorities acting as judge and jury

Fixed penalties

Distinguishing between:

Fixed fines

issued by enforcing authority, typically subsequent to a health and safety inspection or investigation, as opposed to ‘on the spot’.

Used in several Australian States’ health and safety systems.

HSE has commissioned research to explore the scope for devolving an enforcement role over unregistered installers to the Council of Registered Gas Installers (CORGI) possibly through the use of fixed penalty fines.

On-the-spot fines

imposed by the health and safety inspector ‘there and then’.

Both variants of fixed fine typically involve smaller sums than would be available to the court upon conviction of an offence.

Feasibility in the GB health and safety system

• Might be used to underpin health and safety requirements – perhaps so-called ‘paperwork’ requirements: risk assessments, employee consultation arrangements, provisions for safety reps, compulsory insurance possibly, business registration, welfare provisions, and perhaps RIDDOR requirements.
• If used in conjunction with improvement notices, fixed penalties might have the effect of helping to change duty-holder behaviour - since, in the absence of a new approach, prosecution is rare in these areas.
• For use by enforcing authorities to relieve judicial system

Possible issues for discussion

• Would provide swift form of justice for all concerned.
• Impact of ‘on-the-spot’ fines on relationship between inspectors and duty-holders
• Very difficult to ensure proportionality and consistency. The offences perhaps most suited to fixed fines are ‘paperwork’ offences.
• No current statutory mechanism, so some form of legislative change would be required.
• According to Australian research, fixed penalty fines:
  • Felt to lie below prosecution but above enforcement notices
  • Greater impact on small firms.

Remedial orders

What these are

Court orders to ensure that remedial work is undertaken by duty-holders.

It is already the case that section 42 of the Health and Safety at Work etc Act gives the court, following conviction of an offender, power to order the cause of the offence to be remedied. This may be done in addition to, or instead of, otherwise imposing a punishment.

It has been suggested that greater use should be made of this power. However, a person who is the subject of a remedial order made under section 42 then has no liability under health and safety law in respect of the matters covered by the order insofar as they continue during the time fixed by the order or any further time allowed by the court.

Feasibility in the GB health and safety system

• Could be adopted as existing legislation in place.
• Would not relieve pressure on judicial system

Possible issues for discussion

• Not only able to require employers to take action within specified timescales, but also to tackle specific risks and, where appropriate, make changes to organisation and arrangements for managing H&S.
• Problems of checking compliance - as with enforceable undertaking

Probation for companies and directors

What this is

Companies and Directors on conviction being placed on probation for offences committed. Any further offence within a set limit of time would result in the original offence being punished.

Where this is used

Companies Act but rarely invoked. Used in health and safety systems in USA.

Feasibility In the GB health and safety system

• Would require legislative change
• Has been proposed by several respondents to the Home Office consultation on Corporate Manslaughter Bill

Possible discussion points

• Proving individual or corporate culpability.
• Feeling by business community of growth of individual blame culture.
• May be appropriate in health and safety enforcement regimes which do not empower Inspectors to issue improvement or prohibition notices.
• Would investigation effort by enforcing authorities be seen as proportionate to what would be - in effect - a warning.

Adverse publicity orders

What these are

Offenders are required to publicise their failings. This could fit in with restorative justice and conditional cautions. These contain the key elements of reasoning in criminal justice: deterrence, retribution and rehabilitation.

Where this is used

Used in a health and safety context in some states in Australia.

Feasibility in the GB health and safety system

• Would require legislative change.
• Would fit with Restorative Justice and Conditional Cautioning

Possible discussion issues

• Who would agree the wording, publication mediums and timing?
• Would engage CSR (corporate social responsibility) as a driver.
• Protection of the victim.

This list is not exhaustive, and its purpose is to promote discussion rather than provide a policy perspective. There may be other options for alternative penalties – for instance equity fines, anti-social behaviour orders – you would like to raise. If so, we would welcome your views.