HEALTH & SAFETY: An Introduction
Health & Safety Overview
Harry Vann & Katie Sage of Crown Office Chambers
Those engaged in health & safety litigation have been fortunate that so much of what had been scheduled for the past year has managed to take place, not least through the extensive use of 'Nightingale' Courts to which health & safety cases have proved themselves well-suited.
2021 began with two long-awaited manslaughter trials: the Bosley Mill Corporate and Gross Negligence Manslaughter trial in Chester; and the Eastbourne Pier collapse Gross Negligence Manslaughter trial in Brighton, both resulting in acquittals on all manslaughter charges.
From May to July 2021, the Inquest into the Croydon tram crash finally proceeded, and the Grenfell Inquiry has continued to hear Phase 2 evidence, now well into Module 3.
In that regard, the Fire Safety Bill 2020 has become the Fire Safety Act 2021, although, at the time of drafting, its commencement date is still awaited, and the draft Building Safety Bill has been published for consultation.
The latest figures for enforcement by the HSE were published in October 2020 and should reflect any changes brought about by the first wave of the coronavirus pandemic. Some may be expecting the number of prosecutions brought by the HSE and, in Scotland, the COPFS, to have reduced significantly from 2018/2019 to 2019/2020 due to the pandemic, but in fact the rate of prosecutions remained relatively steady with 373 prosecutions compare to the previous 394 in 2018/2019.
Where the impact of the pandemic is being seen is in the average fine per conviction. As we predicted last year, as a result of Courts being open to making real reductions to reflect the impact of the pandemic on companies’ financial fortunes, the average fine has fallen dramatically. The average fine in October 2019 was £149,661 but in October 2020 is only £76,600. This is the first time that the average fine per conviction has fallen since the Definitive Guideline for Health & Safety Offences et al. was first published. The figure is in fact lower than the average fine in the first full year after the Guideline was first introduced (£88,305). However, this certainly does not indicate a return to pre-Guideline levels, with the average fine still significantly more than three times the average fine in 2014/2015 before the Guidelines were introduced (£18,170).
Our experience has also been that the reductions of fines which became quite common in the second half of 2020 based on anticipated downturns of fortune have been less easily achieved in recent months in the cases of companies which have demonstrated their ability to weather the COVID storm, howsoever turbulent it may have been. There is a sense that Courts have become wary of one-off bad sets of company figures distorting the level of fine which a recovering company can actually afford to pay. It will therefore be of great interest to review the average fine figures next year to see whether there has been a return to close to pre-COVID levels.
Workplace deaths have risen this year back to pre-pandemic levels with 142 workers killed in workplace accidents in the year to March 2021. That is a rate of 0.43 per 100,000 workers which is in line with the five-year average which is 0.42 per 100,000 workers, after a small dip last year. Falls from height are still the main kind of fatal accident, accounting for 35 deaths, and followed as usual by those struck by a moving vehicle, 25 deaths.
Sadly, the construction industry remains the most perilous industry for workers. There were 39 deaths in the year to March 2021, followed by agriculture, forestry and fisheries. The two industries where the number of deaths were down when compared with the five-year average were transportation and storage and waste and recycling.
It is noteworthy that all charges of manslaughter in both the Bosley Mill and Eastbourne Pier cases were withdrawn from the Jury at the close of the prosecution case in each matter, firmly reinforcing the gulf between offences of the creation of risk and those involving a gross breach which must be proved to have caused a death; and underscoring the significance of the burden and standard of proof in such cases.
New Corporate Manslaughter prosecutions are, perhaps unsurprisingly, still relatively rare: we are aware of three listed in the next year: Deco-Pak in respect of the death of an employee in April 2017 to be heard in the autumn of 2021; Alutrade Ltd, involving the death of a single employee in July 2017 to be heard in February; and Greenfeeds Ltd, in relation to the death of two workers in December 2016 to be heard in April 2022. Individuals in each case face Gross Negligence Manslaughter and Health & Safety at Work etc. Act 1974 charges.
Prosecution of Individuals
We are still seeing numerous section 37 prosecutions of directors and officers and we consider it possible that as more companies enter administration or liquidation because of COVID-19, the HSE will renew its interest in the prosecution of individuals. The number of immediate custodial sentences as a proportion of all sentences (5%) is increasing again, having experienced a drop last year. The number of suspended sentences remained static at 9%.
Not least as a result of the Bosley and Eastbourne cases, there is still not enough data to enable any analysis of the relatively new Definitive Guideline on Manslaughter in a health and safety context.
The year ahead
The Fire Safety Act 2021 stands out as the key legislative development to come this year, in particular with respect to enforcement in respect of cladding systems, and whether the 'clarificatory' nature of the Act is subject to legal challenge. Some Enforcement Notices have already been issued in anticipation of its provisions and we are also aware that at least one Local Authority has brought a prosecution relating to cladding against a landlord using its powers under the Housing Act 2004. We have no doubt that the cladding safety scandal will continue to dominate headlines well into 2022.
But the overarching issue for 2022 will surely be the extent to which the Crown Court is able to recover ground from the pandemic – a striking feature of all the cases mentioned above is the age of the incidents concerned. The Court diary is already replete with trials adjourned from the pandemic, with listing in many centres already into the final quarter of the year. What is certain is that it will be an extremely busy period for all those involved in Health & Safety litigation, as long-awaited matters come to their conclusion and a raft of investigations suspended during the pandemic come to fruition.