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HSE: The force is strong

Posted on 17th October, 2016

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One consequence of working in the criminal justice system is you get a ringside seat of the battle the courts have to keep pace with public opinion and the shocking revolution in communications. Like it or not we now live in a society where everything is on such fast forward mode that tomorrow’s technology is already here leaving the legislature and judiciary stumbling on behind as they reach out to try and bridge an ever growing expanse to the coalface. Indeed such is the pace of change that no sooner does the establishment move to plug one hole in society than another two appear. A good example of this is the overdue increase of penalties to address text/driving. A step in the right direction, certainly, now how about reviewing the law on sexting, the reposting/retweeting of revenge porn, aggressive internet trolling, cyber bullying and ‘lonely hearts’ cyber fraud?

One area where the law has evolved to keep pace with public opinion is the court’s revised approach to health and safety offences. In this regard it is helpful to look at sentencing history. When the Forth Rail Bridge was opened in 1890 by the future Edward V11 it was to such huge acclaim that the 78 workers who died and the hundreds seriously injured during its construction were almost a footnote. Health and Safety had vastly improved by the time the Forth Road Bridge was built in 1964 but even so a further 7 workmen died during its assembly which today would be a wholly unacceptable price to pay no matter how iconic the structure.

The Health & Safety at Work Act 1974 came about partly because of the perception that many industries were putting profit before safety and it was considered that if all employers had a statutory duty to ensure the welfare of their employees, the UK workforce as a whole would greatly benefit. It is now 42 years since HSEWA but the legislation remains a touchstone for workers’ rights with its penal provisions (which were always sharp) immeasurably enhanced not only by new guidelines introduced by the sentencing council in February 2016 but also the court’s interpretation of those guidelines. In a drive for consistency and to reflect public concern that businesses had often been perceived to be “getting away too lightly”, a structured framework of penalties has now been introduced taking into account the size of the organisation, the risk involved, the level of harm and the offender culpability. These changes are cutting edge and in future regulatory fines will be proportionate not only to the seriousness of the offence but also the means of the offenders with the Court of Appeal leaving businesses in no doubt that they must implement the reforms and improvements for which they say they are striving “…because if they do not the sentences passed upon them will be sufficiently severe to have a significant impact on their finances.”

The message could not be clearer. The £1.6m fine imposed this week on Foodles Production (UK) Ltd for crushing Harrison Ford together the eye watering £6m imposed on Merlin Attractions (Alton Towers collision) merely confirm, if indeed confirmation was needed that at least here the law is in step with public opinion and for organisations in breach of Health & Safety legislation, the Indian Summer in the Crown Courts is well and truly over.

Simon Catterall, Head of Regulatory and Safety

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