Last year, in its ten year strategy, the Health and Safety Executive announced that it is looking to regulate workplace safety in 'different ways', in the light of the maturity and understanding of business in managing such risks.1 What does such an intention mean for organisations with mature health and safety systems which have conscientiously sought to ensure safety, if they experience a serious accident?
All Accidents Are Preventable
There is a notion that all accidents are preventable. 'Are they indeed?' writes the safety expert and author, Carsten Busch, 'Why then do we not see this happening in our everyday observations? Just check the news or you company's incident statistics. Why are we still having accidents after almost a century of more or less serious safety management efforts, scientific and technical progress and increased societal demands through better standards and regulations?'
Busch suggests that it would be more accurate to say that all accidents are preventable... given unlimited knowledge, resources and perfect prediction (plus quite some luck). Busch advocates realism about what Safety can and cannot achieve, in the light of the limitations of knowledge, resources, time and people. Busch is careful to note that this is not the same as fatalism, quoting Professor James Reason, a world leading expert on human error (and propounder of the 'Swiss cheese model'): 'Safety is a guerrilla war that you will probably lose (since entropy gets us all in the end), but you can still do the best you can.'
In guidance 'HSG48: Reducing Error and Influencing Behaviour', first published over thirty years ago, the HSE reflected the same insight: 'We all make errors irrespective of how much training and experience we possess or how motivated we are to do it right. Failures are more serious for jobs where the consequences of errors are not protected. However, errors can occur in all tasks, not just those which are called safety-critical.' The guidance suggests various measures that can be taken to *reduce* human errors and violations and minimise the safety risks arising from errors that cannot be prevented.
The extent to which 'error' can be eliminated or controlled - and the methodology for doing so - is hotly contested. In this context, HSG48 (1999 edition) includes this illuminating paragraph: 'Over the last 20 years we have learnt much more about the origins of human failure. We can now challenge the commonly held belief that incidents and accidents are the result of a 'human error' by a worker in the 'front line'. Attributing incidents to 'human error' has often been seen as a sufficient explanation in itself and something which is beyond the control of managers. This view is no longer acceptable to society as a whole. Organisations must recognise that they need to consider human factors as a distinct element which must be recognised, assessed and managed effectively in order to control risks.'
A few years later, in guidance 'Investigating Accidents and Incidents' (2004), the HSE went a step further: 'Blaming individuals is ultimately fruitless and sustains the myth that accidents and cases of ill health are unavoidable when the opposite is true. Well thought-out risk control measures, combined with adequate supervision, monitoring and effective management (ie your risk management system) will ensure that your work activities are safe...The root causes of adverse events are almost inevitably management, organisational or planning failures.'
If this is suggesting that all accidents are preventable - and preventable by better health and safety management - then such guidance is doing no more than reflecting how the HSE and other regulators have approached health and safety enforcement since the 1990s.
The Robens Report
In fact, the importance of cultural, organisational and behavioural matters has long been recognised. What has been doubted is the wisdom, and principled justification, for prosecuting organisations which have conscientiously sought to fulfil their health and safety duties.
The Robens Report, the culmination of an extensive review by the Committee on Health and Safety at Work which the Health and Safety at Work etc. Act 1974 sought to implement, for example includes: 'With some notable exceptions here and there, the great bulk of the existing provisions are concerned with physical circumstances - the safeguarding of machinery, the provision of adequate lighting and ventilation, and so on. These things are important. But it has long been widely accepted that equally important factors in safety and health at work are the attitudes, capacities and performance of people and the efficiency of the organisational systems within which they work. This is not yet adequately reflected in the legislation...'.
And: 'It is not to underrate the importance of physical safeguards to say that preoccupation with the physical environment has tended to dominate this field to the neglect of equally important human and organisational factors, such as the roles of training and joint consultation, the arrangements for monitoring safety performance, or the influence of work-systems and organisation upon attitudes and behaviour.'
Understanding the importance of such factors is why the HSWA is drafted in the broad terms that it is, with general duties on employers and others to take all reasonable practicable measures to ensure safety, including human and organisational. However, it does not follow that criminal prosecution is the best method of addressing perceived failings in these areas, even when there is serious harm. The limited circumstances in which prosecution is appropriate was one of the central recommendations in the Robens Report:
'One of the basic themes of this report is that occupational safety and health law should seek to promote, as much as to control. We have suggested changes in the law and its administration designed to produce a framework for stimulating and encouraging self-regulation by industry and the exercise of individual and co-operative responsibility. We have looked for ways of reducing the negative influence of an excessively regulatory approach. Amongst other things we have suggested that the basic function of the state inspection services should be, and should be clearly seen to be, the provision of advice and assistance towards progressively better standards. At the same time it must be recognised that there will always be some who are indifferent to the demands of safety and to their obligations towards others. Flagrant offences call for the quick and effective application of the law. In what follows we are not arguing in favour of a generally milder, more tolerant approach but in favour of a much more discriminating and efficient approach-constructive where appropriate, rigorous where necessary.'
And: 'The fact is-and we believe this to be widely recognised-that the traditional concepts of the criminal law are not readily applicable to the majority of infringements which arise under this type of legislation. Relatively few offences are clear-cut, few arise from reckless indifference to the possibility of causing injury, few can be laid without qualification at the door of a particular individual. The typical infringement or combination of infringements arises rather through carelessness, oversight, lack of knowledge or means, inadequate supervision or sheer inefficiency.. In such circumstances the process of prosecution and punishment by the criminal courts is largely an irrelevancy. The real need is for a constructive means of ensuring that practical improvements are made and preventive measures adopted. Whatever the value of the threat of prosecution, the actual process of prosecution makes little direct contribution towards this end. On the contrary, the laborious work of preparing prosecutions -and in the case of the Factory Inspectorate, of actually conducting them- consumes much valuable time which the inspectorates are naturally reluctant to devote to such little purpose.'.
And again: 'We have said that criminal proceedings are inappropriate for the generality of offences that arise under safety and health at work legislation. We recommend that criminal proceedings should, as a matter of policy, be instituted only for infringements of a type where the imposition of exemplary punishment would be generally expected and supported by the public. We mean by this offences of a flagrant, wilful or reckless nature which either have or could have resulted in serious injury. A corollary of this is that the maximum permissible fines should be considerably increased...'.
British Steel  2
On 29 July 1990, Mr Coullie and Mr Gascoigne were repositioning a 7.5 tonne section of steel platform at British Steel's plant at Shepcote Lane, Sheffield. The two men cut the platform free of nearly all its supports. They did not secure it to a crane or by means of temporary props. It was, said a specialist building inspector, like attempting to balance a table mat on four pencils. When Gascoigne stepped onto the platform it collapsed and fell on Coullie who was working beneath, killing him and injuring Gascoigne.
Coullie and Gascoigne had been engaged by a subcontractor. Mr Crabb, an engineer employed by British Steel, was responsible for the supervision of the task. He said that he instructed the two men to fit brackets but not remove the columns until a crane had arrived and taken the weight of the platform. He assumed that the men were skilled and competent and would carry out his instructions. He did not supervise them doing the work.
A number of questions arise, but let us focus on two: (1) was British Steel in breach of its duty under section 3(1) HSWA to ensure the safety of non-employees who may be affected by the conduct of its undertaking; and (2) if so, was this a mere technical breach, or one which warranted prosecution and a punitive fine?
In relation to the first question, the prosecution did not dispute that British Steel's supervisor was appropriately qualified or that British Steel were entitled to rely on him. British Steel called expert witnesses (including a former principal inspector at the HSE) who said that British Steel could not have done more as a company. However, the judge directed the jury that, once proved that the supervisor had failed to conduct this part of the company's duty, and thereby failed to prevent reckless behaviour which resulted in the accident, it was difficult to see how the company could argue that it had taken reasonably practicable steps. Inevitably, the jury convicted.
British Steel appealed including on the ground that the company had taken reasonable care at the 'directing mind' level by delegating supervision to a competent employee. The Court of Appeal rejected this argument. It held that, subject to a defence of reasonable practicability, section 3(1) imposed absolute liability on an employer, and a corporate employer could not avoid that liability on the basis that the company at senior management or 'directing mind' level had taken all reasonable care to discharge its duty; such an employer was liable under section 3(1) in relation to acts of employees which exposed non-employees to risk to health and safety, whatever the employee's level in the hierarchy.
The Court of Appeal explained: 'Section 3(1) is framed to achieve a result, namely, that persons not employed are not exposed to risks to their health and safety by the conduct of the undertaking. If we accept British Steel Plc.'s submission, it would be particularly easy for large industrial companies, engaged in multifarious hazardous operations, to escape liability on the basis that the company through its "directing mind" or senior management was not involved. That would emasculate the legislation.'
In relation to the second question, while acknowledging that the supervisor was suitably qualified and that it was appropriate to delegate responsibility to him, the Court of Appeal stated: 'The judge imposed a fine of £100. He viewed the offence as a technical one. In urging us to grant leave to appeal against sentence counsel for British Steel Plc. submitted that the judge should have imposed an absolute discharge. We disagree. It was a highly dangerous operation. A man was killed. Mr. Crabb was negligent. In these circumstances the fine of £100 was derisory. In our view a substantial fine was required but, unfortunately, it is beyond our power to increase the fine.'
The Court of Appeal also said this: 'We have been told by Mr. Carlisle, who has great experience in this field, that the view that a company is only liable under section 3(1) for acts or omissions of senior management has tended to prolong some prosecutions greatly. He gave an example of a prosecution that lasted some 20 days, with three-quarters of the time spent on examining whether the particular employees were part of senior management or not. That is apparently not an isolated case. On the basis of our judgment such inquiries will in future not be necessary. Employers and employees ought now to know where they stand. Furthermore, a culture of guarding against the risks to health and safety by virtue of hazardous industrial operations will be promoted.'
The Court of Appeal's view that a 'a culture of guarding against the risks to health and safety by virtue of hazardous industrial operations will be promoted' by treating 'technical' failings like British Steel's as highly culpable and punishing them accordingly has been largely followed since. It came at a time when there had been public inquiries into several major disasters in the UK including the King's Cross Underground Station fire, the capsize of the Herald of Free Enterprise, the Clapham junction rail crash, and the Piper Alpha oil rig fire which had all noted management failures which contributed to the disasters.
The conclusion however that criminal sanction was the solution appears to have been an intuitive one by a bench which implicitly did not have 'great experience in this field'. The Court of Appeal appears not to have been referred to the Robens Report.
HSE guidance HSG48 estimates that up to 80% of accidents may be attributed, at least in part, to the actions or omissions of people. Research by Weick, Sunstein, Geller and Slovic concluded that 95% of all accidents and incidents are related to psychological and cultural causes.3 Professor Sidney Dekker, a well-known safety expert and author, describes 'the relentless inevitability of mistake in our organizations'.
Let us ignore, for the purposes of this article, old-fashioned legal principles such as that criminal liability should only result from personal fault.4 What is the practical consequence of punishing conscientious organisations following serious accidents, when it is inevitably found that there were errors, oversights, and failures in foresight in safety management systems? Of course, there will be punitive fines, which under current sentencing guidelines fines are commonly measured in millions of pounds for larger organisations. But what impact on the goal of ensuring that practical improvements are made, and preventive measures adopted?
The safety expert Dr Robert Long wrote: 'It is a popular idea that regulation and punishment drive learning, when in fact they create new complexities and problems which previously didn't exist.' Dr Long describes the command and control tendencies of regulatory enforcement: 'The paradigm goes something like this: 1. Here is the rule 2. Comply with the rule 3. Enforce the rule 4. Punish people who don't comply 5. Put a cop on every beat and police the rule 6. We'll catch you and watch out. Result? No ownership, limited maturity and reporting goes 'underground'. This thinking drives a 'nanny' mindset, power operates rather than influence, people don't feel recognised, people get sick and people leave. It's a model of non-motivation and most important to note, models non-learning.'
He further comments: 'It's a sad state of affairs when we create systems and audits to check on systems and audits. And so, we end up with audit checks to certify inspections and audits, inspections to certify inspections, multiple layers of regulations and authorities to validate procedures and tiers of governance to govern governance.' And then: 'Most people believe the purpose of a system is to 'cover their arse'. What does this cultural belief engender? Humans end up following systems in order to be compliant and then have an unspoken set of micro-rules which they really believe in and follow.'
Professor Dekker: 'The things that get changed when a failure is met with an "unjust" response...are not typically the things that make the organization safer. It does not typically lead to improvements in primary processes. It can lead to "improvement" of all the stuff that swirls around those primary processes: bureaucracy, involvement of the organization's legal department, bookkeeping, micro-management. Paradoxically, many such measures can make the work of those at the sharp end, those whose main concern is the primary process, more difficult, lower in quality, more cumbersome, and perhaps even less safe.'
Carsten Busch challenges the view that the more safety measures, the better: 'More safety measures add complexity to the system, make systems less tractable, create more opaque systems and may cause effects that you have not anticipated...'. And: 'Over-regulation of risk can generate complacency in managing risk, simply because people trust the regulation to do the work for them, or people become flooded by the volume of bureaucracy.' And: 'It is impossible to make rules for every situation and no rule can cover every eventuality, since it is impossible to foresee everything. So rules are either written for specific exceptions or for the great majority of situations. This means that there will always be exceptions to a rule because rules by definition have to compromise between completeness and efficiency.'
This feeds into a widespread concern that the criminal justice process is not understanding of the complexities and paradoxes of safety management. Professor Dekker again: 'Doubts...exist about the ability of a judiciary to make sense of the messy details of practice in a safety-critical domain, let alone resist common biases of outcome knowledge and hindsight in adjudicating people's performance.'
Health and safety investigations are particularly susceptible to bias because they are frequently more subjective and complex than other criminal investigations. The fundamental question is usually 'why' (rather than for example 'who'); and the 'why' concerns the behaviour of organisations and not merely individuals. Common biases include: confirmation bias, where evidence is searched for and interpreted to confirm the existing case theory (for example, that accidents are almost invariably due to management, organisational or planning failings); outcome bias, where an evaluation of the systems is coloured by the fact that they did not prevent the harm; and hindsight bias, where knowledge of the outcome causes people to overestimate the likelihood of past events, and to judge failings with bad outcomes as more culpable. Courts, however, are generally undaunted by the complexity and uncertainty.
Dekker posits: '...as Nietzsche pointed out, few things make us as anxious as not having a cause for things that go wrong. Without a cause, there is nothing to fix. And with nothing to fix, things could go terribly, randomly wrong again - with us on the receiving end next time. Having a criminal justice system deliver us stories that clearly carve out the disordered from order, that excise evil from good, deviant from normal, is about creating some of the order that was lost in the disruption by the bad event. Such narratives reflect, said White, "a desire to have real events display a coherence, integrity, fullness and closure of an image of life that is and can only be imaginary."
Dekker concludes: 'There is no evidence...that the original purposes of a judicial system (such as prevention, retribution, or rehabilitation - not to mention getting a "true" account of what happened or actually serving "justice") are furthered by criminalizing human error.' Which takes us back to the Robens Report.
In July 2022, on its 50th anniversary, the HSE stated that the Robens Report has not only stood the test of time, but "still matters. And will still matter over the next 50 years."5 This may be a conclusion which few disagree with. In deciding to review its approach to regulating workplace safety, it is possible therefore that the HSE has reminded itself of what the Robens Report described as 'the negative influence of an excessively regulatory approach.'
Organisations which do not work conscientiously to ensure safety will doubtless continue to face prosecution in the event of a serious accident, and sometimes if there is no accident at all. There is certainly scope, however, for the HSE and other regulators to be far more discriminating in which cases they prosecute even in the event of serious accidents. And, if it is decided to bring a prosecution, to be far more reasonable in how cases are brought. The Sentencing Guideline for Health and Safety Offences includes as an indicator of low culpability, 'significant efforts were made to address the risk although they were inadequate on this occasion', and yet almost inevitably the regulator's starting point will be high culpability even for organisations which do make significant efforts.
Professor Reason wrote: 'I once heard a speaker say, 'Safety management, that's not rocket science.' He was right. Rocket science is trivial compared to managing safety'. One does not have to agree on the best methodology to ensure safety (even some of the experts quoted above disagree vehemently with one another) to recognise that while lawyers applying a legalistic analysis of failings based on principles of absolute liability, before a judge more used to dealing with murders and mortgage frauds, will often produce outcomes which the Court of Appeal finds unobjectionable, it may do little for Safety.
1 'Protecting People and Places: HSE strategy 2022 to 2023'. The intention is to allow the HSE to shift their focus to workplace health.
2 R v British Steel plc  1 WLR 1356.
3 Referenced in 'Risk Makes Sense: Human Judgment and Risk', Dr Robert Long and Joshua Long.
4 Interesting discussion of corporate criminal liability in the regulatory context can be found here: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/08/No.030-Codification-of-the-Criminal-Law-Strict-Liability-and-the-Enforcement-of-the-Factories-Act-1961.pdf. Not to mention the leading judgment of Tesco Supermarkets Ltd v Nattrass  2 WLR 1166, in particular the reasoning of Lords Morris, Reid and Diplock.
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