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


History of offending


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.