UK: Safety, Health and Environment News: February 1999

Last Updated: 15 February 1999
Welcome to the February edition of Hammond Suddards' Safety, Health & Environment newsletter. In this issue, we focus upon the enforcement activities of regulatory bodies, such as the Environment Agency and the Health & Safety Executive. We look at what factors these bodies take into account when deciding what enforcement action is to be taken and what penalties a court may impose where a prosecution results in conviction.

Enforcement and prosecution policy statements have the potential to be very useful documents to those who find themselves in trouble with a regulator. They should give you some idea of what factors the regulator will consider when deciding whether enforcement is required and what measures are available e.g. criminal prosecution, caution or warning.

Whilst it has taken the Environment Agency some eighteen months to publish their enforcement policy, it is a good example of what an enforcement policy should be.

The Policy starts with a vague statement as to the Agency's approach to regulation. Skip this and go straight to what you really need to know - what does the Agency have regard to when considering if a criminal prosecution should be undertaken ?

The environmental effects

Foreseeability both of the offence and the circumstances leading to it

Intent

History of offending

Attitude

The deterrent effect of prosecution on the offender and others

The personal circumstances of the offender

Where an offence has been committed, the Agency allows an offender to make written representations and considers these before deciding what action to take. Obviously, you will want to put your case in the best possible light and highlight the positive aspects. By using the above criteria, you may also wish to address any negative and aggravating circumstances with a view to mitigating their impact.

There are, however, a number of situations where no amount of begging or pleading with the Agency will enable you to avoid that day in court. Again, the Agency has very helpfully set out a list of offences where a prosecution is "presumed".

As you would expect, these are the more serious offences and include:

  • Incidents where there are significant consequences for the environment
  • Reckless disregard for management of quality standards
  • Supplying false or misleading information
  • Carrying out operations without a relevant licence
  • Impersonation of Agency staff (so beware all you budding Rory Bremners)

If the Agency decides to take action (but not through the courts), you may be offered a "caution". This amounts to a formal admission of guilt by the offender and will be referred to if the Agency has cause to take criminal action in the future. Alternatively, the Agency may issue a warning which it may refer to in any subsequent proceedings for another offence. Unless the offender has accepted liability for the offence giving rise to the warning, he can always argue that the warning should not be referred to as guilt is denied.

The Agency's enforcement policy is well worth a look. If you would like a copy please let us know.

In terms of health and safety, enforcement by the HSE and the local authorities is again covered by a policy statement. Unfortunately, after wading through the same basic tenets of enforcement, you will find little reward for your efforts, with scant details of the factors that separate a slap on the wrist from the judicial equivalent of ten rounds with Mike Tyson.

It is, of course, in the regulators' interest to make their policies vague: to retain flexibility and to prevent decisions being challenged on the basis that they are inconsistent with their policy statement.

If you do find yourself the subject of a criminal prosecution for which you have no choice but to plead guilty, then what kind of sentence can you expect?

Cases involving health, safety and the environment often make the headlines due to the high level of fines involved. Indeed, the maximum penalties available to the court are far greater than for other criminal offences.

In general terms, this amounts to £20,000.00 in the Magistrates' Court or an unlimited fine if the circumstances and/or your criminal record are serious enough for the matter to be dealt with by the Crown Court.

As these amounts apply to each offence for which you are prosecuted, you could be forgiven for wondering why, in recent months, regulators, government ministers and even the courts have all expressed concern as to the level of fines being imposed for offences of this nature.

Ed Gallagher, Chief Executive of the Environment Agency, has remarked that whilst the Agency has brought over 1,000 prosecutions since it was formed in April 1996, the average fine for a chemical polluter weighs in at £2,000.00 a ton. The average fine for water pollution cases is just over £4,000.00 and, for waste, approximately £2,000.00.

According to Michael Meacher, Minister for the Environment, Transport and the Regions, the fault lies with the Magistrates. This has been echoed in the 1998 Annual Report of HELA (an enforcement liaison body for the HSE and Local Authorities), which notes that local authorities have "problems getting the courts to take health and safety seriously".

The solution for the Environment Agency, in the North West Region, has been to present seminars to Magistrates "stressing the significance of offences involving the environment". The North West Region has consistently demonstrated that of the Agency's eight Regions it is one of the keenest for prosecuting with a total of 827 successful prosecutions since 1979 as first the National Rivers Authority and now the Environment Agency.

The difficulty for Magistrates is that unlike other criminal offences, there are no guidelines for sentencing in environmental or health and safety cases. For the offender, this may have the benefit of courts erring on the side of caution. Equally, it can cause vast inconsistencies in sentences imposed for cases involving similar circumstances.

This is set to change with the government now announcing that sentencing guidelines are to be introduced to "ensure higher fines are imposed".

Recently, the Court of Appeal set its own sentencing guidelines for health and safety offences.

The Defendant, Howe & Son (Engineers) Ltd, had been prosecuted for four offences arising out of a fatal injury. The company received a total fine of £48,000.00 and the Court of Appeal was asked to decide if that was excessive.

The court took the opportunity to deride what they regarded as the current low level of fines. They found that the average fine in a Crown Court is almost £18,000, even though there is no limit and less than one-third of the maximum of £20,000.00 in the Magistrates' Court. Indeed, 50% of fines in the Magistrates' Court were found to be less than £5,000.00.

Detailed guidelines to be applied in sentencing were set out by the court. Whilst the court was prepared to accept that a defendant's financial weakness would be relevant in setting the level of a fine, it nevertheless went on to say that "there may be cases where offences are so serious that the defendant ought not to be in business".

Financial circumstances are an important factor and courts have not been reluctant to impose heavy fines where they have deemed an offender's pockets to be deep enough.

In November 1998, Sainsburys were also prosecuted for a fatal accident. They were ordered by Winchester Crown Court to pay a total of £500,000 in fines and costs.

The Howe decision has been widely reported in the media. Magistrates are aware of it and will use it. The level of fines is therefore likely to increase and anyone involved in a health and safety or environmental prosecution would be wise to obtain a copy of the full Court of Appeal judgment.

Increasingly, the courts are looking to non-financial penalties as a means of dealing with individuals, such as directors and company officers. Recent prosecutions by the Environment Agency have resulted in prison sentences of up to nine months, suspended sentences and community service orders. A company director was also disqualified from holding office for two years after being convicted of a health and safety offence.

The coming year will see greater fines imposed as courts invoke their new sentencing guidelines. The first warning shot of 1999 has already been fired by the Environment Agency, with Milford Haven Port Authority being fined £4 million, the largest amount ever imposed for a pollution offence. This dubious honour had previously been held by Shell with a fine of £1 million.

The prosecution followed a spillage of 72,000 tons of crude oil from a tanker, the Sea Empress. The Judge at Cardiff Crown Court remarked that a much stiffer sentence would have been imposed had the offender been a private oil company.

There has never been a greater need to take the right advice and to have staff sufficiently well trained to ensure regulatory compliance. The message from the regulators and the courts is plain and clear. Act now or you may pay dearly in the future.

For further information please contact Mike Shepherd, e-mail: Click Contact Link , Trinity Court, 16 John Dalton Street, Manchester, M60 8HS, UK, Tel: + 44 161 830 5000

This article was first published in the March 1999 Hammond Suddards Safety, Health and Environment Newsletter Update

The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.

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