HEALTH & SAFETY: An Introduction
2024 looks likely to see a return to pre-pandemic levels of prosecutions being brought by the Health and Safety Executive (HSE). At the same time, the record backlog of criminal cases in the Crown Court means substantial delays in new cases reaching resolution, with trial dates already being set well into 2025 at some busy courts. HSE prosecutions are now utilising the Crown Court Digital Case System (CCDCS) for uploading and managing their case through the Crown Courts, which should bring welcome modernisation and streamlining to the service and presentation of evidence at court. However, the problem of health and safety and fire safety allegations taking a backseat when considered by the listings office – compared with other competing cases – remains a source of frustration for individual and corporate defendants alike.
Another notable change for practitioners will be the continued reduction in external solicitor agents undertaking prosecutions for the HSE, following the expansion of the recently established Legal Services Division. This may lead to a decrease in the instruction of counsel to prosecute cases in the Magistrates’ Court at a time that has also seen an increased willingness on the part of district judges to retain jurisdiction for both trial and sentence. Even in cases involving fatalities, the power to impose unlimited fines for offences committed after 12 March 2015 has undoubtedly had a substantial impact on decisions regarding venue. It remains to be seen how much the change in approach by the HSE affects decisions on how cases are prosecuted and the extent to which the parties can seek to agree, for example, an approach to sentence, without advice coming to the prosecution from external counsel.
On the subject of fines, all who practise within this field will have seen a trend towards the imposition of greater penalties for health and safety offences overall. That increase has been most apparent in cases concerning what the Sentencing Guidelines terms Very Large Organisations (VLOs) – namely, those whose turnover significantly exceeds GBP250 million –and seems to show no sign of relenting. While recent appelate court decisions have provided some welcome guidance as to how the Sentencing Guidelines apply to penalties for VLOs (including confirmation that the assets of a parent company should not be taken account when it comes to a subsidiary’s turnover or available funds), the appetite of the courts for imposing headline-grabbing multimillion-pound fines has not abated.
As a result, corporate defendants will need to consider with even greater care the merits of their case from an early stage. Early legal advice and the early instruction of expert evidence is likely to become increasingly important. Where the sums concerned are so huge, fighting a case to trial may become a less appealing prospect, as the credit for an early plea – up to 30% off any fine - could be a very substantial reduction in sentence. Also, delays in listing in the criminal courts may draw the matter out far longer than would be desired. Conversely, genuine uncertainty concerning the way in which sentences will be imposed (and the level of penalty under consideration) will continue to provide many with an incentive to take on litigation risk and defend the matter at trial – even on a “litigate to mitigate” basis.
Undoubtedly, this lack of certainty around just how high fines may go for Very Large Organisations will continue to present a challenge to barristers and solicitors alike when advising clients on the potential risks involved in taking a matter to trial and the level of provision for sentence that may be required. All those working in this field will be familiar with clients’ financial controllers requesting advice on the likely level of fine at the very earliest stage of an investigation – and all will be similarly familiar with the difficulty in providing the sort of narrow range that clients and their businesses need. It seems increasingly likely that counsel, whether prosecuting or defending, will be engaged at a far earlier stage than might have historically been the case – particularly in relation to large and complex investigations. Equally, engaging a legal team to start any discussions with prosecutors can also pay dividends if guilty pleas are to be offered, as early negotiations can provide significant savings on all three heads of defence costs, prosecution costs, and – if well handled – on the sentence itself. Where agreement on sentence cannot be reached, it is the authors’ experience that expert evidence can be of crucial assistance for the judge in understanding the defendant’s industry more widely and assessing their culpability, even in cases with guilty pleas.
Also important to clients even prior to charges being brought is the matter of fees for intervention. This has in a relatively short period become a crucial aspect of any inspector’s visit to premises and some clients may feel that no visit is likely to conclude without a notice being issued and a bill received. In the authors’ experience, as the fees involved continue to rise, so does the resultant increase in the appetite that recipients have for challenging fees for intervention. Again, this provides clients with another benefit of retaining their legal team early in the event of any investigation and having experts instructed and ready to assist.