Compass Regulatory Members:
Peter Gray QC
Andrew Smith QC
Mark Stewart QC
Gary Allan QC
Jamie Gilchrist QC
Susan Duff
Amber Galbraith
Steve Love
Barry Smith
Yvonne Waugh
Graeme Middleton
Compass Clerking Contacts:
Irene McKenzie
Michelle Williamson
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The Health and Safety Offences Act 2008 Comes Into Force
The Act, which started life as a Private Member’s Bill, came into force on 16 January 2009 having attracted widespread cross-party support, and introduces highly significant sentencing and mode of trial changes to the HSWA 1974. The Act applies to breaches of the HSWA 1974 committed after 16 January. According to the Explanatory Notes to the Act the objective “ behind the changes is that sentences for health and safety offences be sufficient to deter those tempted to break the law, and sufficient to deal appropriately with those who do commit offences, in accordance with the Hampton and Macrory Reports”.
The most important provisions to note are:
• The maximum fine at summary level for breaches of Regulations is increased from £5000 to £20000.
• Certain offences under the HSWA which, hitherto, have been triable summarily only, will become indictable.
• Whereas in the past the Courts have been restricted to imposing financial penalties following conviction of an offence under the HSWA, the 2008 Act provides imprisonment as a sentencing option following conviction for most offences under the HSWA, both at summary level and following conviction on indictment. Where applicable, the maximum sentence at summary level is 12 months’ imprisonment and, on indictment, 2 years’ imprisonment.
• Included in the offences in respect of which imprisonment is now a sentencing option is a breach by a director under Section 37 of the HSWA.
To read the Act in full, follow the link:
http://www.opsi.gov.uk/acts/acts2008/ukpga_20080020_en_1
The Criminal Sentencing (Equity Fines) Bill
The Public Consultation on the Criminal Sentencing (Equity Fines) Bill closed on 1 December 2008. The Bulletin will be monitoring the progress of this Private Member’s Bill which seeks to make it a requirement that public companies convicted of health and safety offences be the subject of pre-sentence financial enquiry reports; and that fines imposed be linked to a public company’s share price.
To read the Consultation Paper in full, follow the link:
http://www.scottish.parliament.uk/s3/bills/.../.pdf
RECENT HOUSE OF LORDS JUDGEMENT on REQUIREMENTS ON CROWN IN H & S PROSECUTIONS
R V Chargot Ltd (2008) (HL) UKHL 73 (10 December)
Question for HL was in relation to prosecutions under sections 2,3 or 37 of HSWA is it sufficient that the prosecution proves merely a risk of injury arising from a state of affairs at work, or, need it go on to identify and prove specific breach or breaches of duty?
Held: (leading Opinion of Lord Hope of Craighead)
• What the prosecution must prove is that the result that those provisions describe was not achieved or prevented. Once that is done a prima facie case of breach is established. The onus then passes to the defendant to make good the defence which section 40 provides on grounds of reasonable practicability.
• However, in cases under sections 2 or 3 where the alleged risk has not resulted in injury it will be necessary to identify and prove the respects in which there was a breach of duty. This is likely to require more by way of evidence than simply an assertion that that state of affairs existed. The particular risk to which the employees, or the persons referred to in section 3(1) as the case may be, were exposed must be identified. This will require an analysis of the facts in each case. Even where an injury has occurred it may not be enough for the prosecutor simply to assert that the injury demonstrates that there was a risk. Where a prosecution is brought under section 3(1), it may be necessary to identify and prove the respects in which the injured person was liable to be affected by the way the defendant conducted his undertaking.
• A contrast may be drawn with sections 4 to 6, which set out a series of more particular measures that must be taken. Where breaches of those sections are alleged, the respects in which there was a breach must be identified.
• Obiter: that the increased penalties for directors and others for a breach of section 37, introduced by the Health & Safety Offences Act 2008, does not require any alteration of the test already set out in Wotherspoon v HMA and R v P Ltd.
To read the case in full, follow the link:
http://www.publications.parliament.uk/.../chargo-1.htm
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