Health and Safety – November 2016Print publication
Sentencing and recent cases, latest HSE statistics and recent action on product recalls and safety.
A chemical company was fined £3 million following the release of a toxic vapour cloud on two separate occasions. The Health and Safety Executive (HSE) said that the company still did not learn lessons from the initial incident in 2010 which killed one employee, caused life changing injuries to another, and could have caused a local disaster. As we reported in our earlier briefing, the new sentencing guidelines introduced in February 2016 are already having a profound impact on the sentencing of businesses convicted of health and safety offences.
A port terminal operator has successfully appealed the £1.8 million fine it received following an incident in which a worker was seriously injured when his left hand got caught under a rope and his arm was dragged around the capstan he was using while mooring a vessel . The company was fined in January 2016, just before the new sentencing guidelines came into force. Key points are:
- the sentencing judge’s conclusion that there was a risk of serious injury by use of the capstans and that such a risk was clearly foreseeable was correct
- in the pre-guideline regime governing this type of case it is well established that consistency is not a primary aim in this area of sentencing – attempts to make comparisons with other cases was not helpful
- beyond the mitigation of the company’s guilty plea, co-operation and action to remedy failures identified, there was also mitigation in the company’s general attitude to health and safety matters and its absence of previous convictions
- the need for a fine to be of a size which would achieve the statutory purposes of sentencing by bringing home to a company’s directors and shareholders the gravity of an offence or offences committed and by providing a real incentive to directors and shareholders to remedy failures which had existed, appeared to the Court of Appeal to be a highly material factor in sentencing a relatively prosperous company such as this one, where there had been serious failings resulting in a very serious injury to an employee (the latest figures showed turnover of £23.3 million and gross profits of £10.3 million)
- looking at all the circumstances, including the significant mitigation available to the company, a fine of £1.8 million was simply too high, even making allowance for the need to send an appropriate message to directors and shareholders. An appropriate financial penalty of £750,000 was reduced to £500,000 after giving full credit for an early guilty plea.
The HSE recently published its Health and safety at work summary statistics for Great Britain 2016. The number of cases prosecuted by the HSE and, in Scotland, the Crown Office and Procurator Fiscal Service, has shown an upward trend in recent years. It is also interesting to note that, while there has been a long-term downward trend in the rate of fatal injury, this shows signs of levelling off.
Product recalls and safety
A government-backed working group on product recalls and safety, set up in October following a serious fire involving a faulty Whirlpool tumble dryer, met for the first time earlier this month. The meeting was attended by the Consumer Minister Margot James. The aim of the group is to deliver urgent recommendations to improve the safety of white goods. See the full press release here.
 Regina v CRO Ports London  EWCA Crim 1589