Due to come into force in January 2009, the Health and Safety (Offences) Act in no way alters existing health and safety requirements, but it will transform sentencing for H&S breaches, increasing significantly the number of offences for which individuals may be imprisoned. Those now at risk include directors, managers, the self-employed, partners and employees.
Historically, the criminal courts have readily distinguished H&S offences as regulatory breaches where the accused could be convicted for simply failing to meet a standard of care, in marked contrast to truly 'criminal offences', which required proof beyond reasonable doubt of the accused's criminal intent or recklessness, e.g. theft or violence offences.
The counterbalance to this position has always been that whereas lengthy terms of imprisonment await those convicted of 'criminal offences', the maximum penalty for breach of the general duties of the Health and Safety at Work Act (HSWA) 1974 and supporting regulations has only ever been a financial one.
The new legislation allows the imposition of a maximum penalty of imprisonment of up to two years for any person convicted of breaches of the HSWA, and the supporting health and safety regulations, as well as offences relating to obstructing inspectors and breaching prohibition and improvement notices.
Additionally, the maximum penalty for breaches of regulatory offences in the magistrates' courts has been increased from £5,000 to £20,000 and a significant number of offences have been upgraded in gravity to allow them to be tried before a Crown Court. The penalty of an unlimited fine before the Crown Court remains unchanged.
Directors and managers
The well established provisions of section 37 of the HSWA enable individual prosecution of any director, manager, secretary or other similar officer of a corporate body where the corporate body itself is alleged to have breached a duty and the breach is proved to have been committed with the 'consent, connivance or neglect' of the individual in question.
Liability does not attach to an individual because of the name that is attributed to their role in the company, but because of the authority and responsibility that they have within it. Prosecutions using section 37, while not routine, are equally not uncommon. Also, following the introduction of the statutory offence of