11th December 2009
Why are some EHPs anxious about taking a prosecution to court? Fears about the costs of taking a case are understandable, but it is important to answer this question, particularly in the current climate, if we are to continue to protect the public.
While it is wrong to prosecute a business when there is no evidence, it is also contrary to the public interest to shirk from such action when the circumstances clearly warrant it.
The House of Lords said in 1938 that it is the duty of a prosecutor to determine whether or not there is a reasonable and probable cause for prosecution and not just if there is a possible defence. Since then, the High Court has said a policy of selective prosecution is not only rational, but probably the only workable policy.
Arguably, bringing home to employers the importance of maintaining high health and safety standards is very much in the public interest, and the Court of Appeal has repeatedly upheld this principle.
Use the sanction
This is why EHPs continue not only to advise businesses but also to enforce the law. As funding becomes tighter, we need to make sure we continue to use the sanction of prosecution to protect the interests of businesses that do comply.
The Code for Crown Prosecutors and the Regulators Compliance Code point to the need for this. Lord Gill’s Report, which looked into the explosion at the ICL plastics factory in Glasgow in May 2004, also shone public interest on how health and safety enforcers operate.
Researchers have suggested that to maximise the benefit from a regulatory system with only limited resources, governments should exert the highest levels of punishment possible coupled with the lowest levels of inspection possible.
However, this concept may not sit well with the views of either trade union representatives or campaigners. Indeed, research has shown that the higher the probability of detection, the higher the degree of compliance by firms.
Further research has also shown that Health and Safety Executive (HSE) inspectors see themselves as enforcers of criminal sanctions, which is no surprise.
As EHPs enforce the same laws, they would also view themselves as enforcers, although no strong research proves this.
EHPs are of great value to businesses and the public because our skills base goes beyond enforcement. As budgets are being cut, we need to recognise, and make known, the value we can bring to an organisation.
While advocates of better regulation promise more business-friendly policies, the government has given clear signs that it expects those who break the law to prepare themselves for heavy penalties. The Corporate Manslaughter & Homicide Act and the Health & Safety Offences Act both support this view.
Many politicians and judges appear, in their different ways, to be responding to a perceived demand from the public for tougher sentencing. The calls for greater corporate accountability stretch beyond the occupational safety remit.
Without a sustained and positive public profile, however, health and safety could lose ground to other regulatory functions.
Taking a prosecution is not the only way to trumpet its importance but it is a useful way, and one that should not be avoided. Self-regulation has its limits.
The Work and Pensions Select Committee recently criticised the HSE over the sustained drop in the number of prosecutions it has taken since 2003, which amounts to a 40 per cent decrease.
In contrast, the number of local authority prosecutions reflects a different picture. Over the past four years, they have achieved a conviction rate consistently greater than 90 per cent.
The numbers do indicate though that, on average, there is fewer than one case per local authority. If it can be assumed that larger local authorities are likely to take more than one case within a 12-month period, are we looking at a failure to enforce in a way that the public expects?
Poor reporting
Regrettably, all reports on local authority enforcement activity are undermined by the fact that, each year, many of them fail to provide detailed information on their enforcement activity.
The situation is improving – only 43 local authorities failed to respond in 2007-08, but it is well-known that some local authorities consistently fail to provide any information.
If we are to effectively promote the sterling work that local authorities undertake individually, and in partnership with HSE and other agencies, it is imperative that the information is put forward by all those involved.
We need to recognise that we are able to, and should only, institute a prosecution for sound reasons. It is politically sanctioned at a national
level and it is what the public expects. We should not avoid doing so because we fear the challenge. Information and guidance abounds and EHPs are armed with the skills to handle the complex cases that inevitably arise.
Ian Andrews is a former HSE partnership liaison officer. For references used in this article and to respond to the views expressed, email the author at: iantiger@hotmail.com