We often hear the complaint that safety fines are too low, but very little is heard about the HSEs’ prosecutions dropping by a half over the last decade, to around 1,000 a year.
Preparing court cases is expensive and a drain on resources for any regulator. But as fewer cases are brought it becomes harder to justify why particular organisations and individuals are singled out for prosecution, while others escape scot-free. Rationing prosecutions sacrifices fairness.
Regulators face the same budgetary pressures as most of the public sector, and even the criminal justice system is not exempt from proposed spending cuts. For example, the Government wants to axe up to 103 magistrates’ courts.
The time is ripe to question whether a system that relies on criminal fines is not just unaffordable but fails to hold dutyholders properly to account.
Administrative fines for health and safety offences (where the defendant does not actually appear in court for trial and sentencing) are used in the US and some EU and Commonwealth countries. In these jurisdictions, the regulators have the power to impose whatever fines they deem appropriate, up to a maximum limit. The fines may be subject to appeal and most of these countries also retain prosecution in criminal courts as an option for serious cases.
These fines have a number of advantages. Firstly, they result in streamlined investigations, since the regulator is encouraged to focus on the reasons for the contravention.
Secondly, the investigation is faster because there is no need for regulators to assemble extensive formal evidence (witness statements, expert reports, etc), or to involve lawyers. Contraventions are also dealt with swiftly, and a penalty is imposed as soon as an investigation is complete.
Thirdly, offenders have an incentive to admit breaches promptly, since their case will be diverted from the criminal process and they will avoid disproportionate legal costs. And finally, legislators can set out in advance the criteria for realistic fine levels.
If we adopted this approach in the UK, money raised from safety fines could be re-directed to a fund managed by the HSE. It could help to better fund inspection and investigation – and encourage regulators to reverse the decline in enforcement. In these straightened times, is it such a bad thing if offenders have to bear a greater share of the cost of enforcement?
Partner, Shook Hardy & Bacon, legal practice
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