Harcus Sinclair v Your Lawyers - Another nail in the coffin of solicitors’ undertakings?
The construction industry was under scrutiny on 23 March in a Parliamentary debate led by Labour MP Stephen Hepburn. Highlighting the high level of deaths in the sector - 35 deaths last year were cited - there was a call for a Health and Safety Executive (HSE) “that is effective and dedicated to protecting workers”. MPs called for better resourcing of the HSE, an increase in proactive site inspections and reduction in the length of time it takes for cases to be brought to trial.
The Parliamentary Under-Secretary of State for Disabled People (Justin Tomlinson MP) responded for the Government. Stating that the investigation of workplace fatalities is HSE’s top operational priority, he reminded MPs that HSE’s enforcement policy statement makes it clear that where a failure to comply with the law has caused death, the expectation is that a prosecution will result.
Responding to criticisms as to the time it takes to bring a case to trial the Minister stated that some investigations can be complex, involving painstaking forensic analysis, interviewing large numbers of witnesses and examining the roles and interactions between a number of parties, including workers, contractors, suppliers, architects, designers and clients, some of whom may be based overseas. He set out the HSE performance standard for completing investigations of fatal incidents within 12 months of receiving primacy. He confirmed that more than 80% of prosecution decisions for construction incidents meet this standard, and most take considerably less time. He also referred to the number of law enforcement agencies involved in such cases. Stating that the HSE recognises the need to maintain pace in all these investigations he referred to the work-related deaths protocol, which states that, “Other than in exceptional circumstances, [cases should conclude] no later than three years after the date of the death.”
He challenged the notion that there had been a fall in HSE conviction rates in recent years: “The number of HSE prosecutions being approved following fatal construction accidents is not falling over time and there has been no increase in the time taken to make a decision on prosecution”. Moreover conviction rates for those prosecuted for breaking health and safety laws in construction have actually risen in recent years from 92% to 94% he said. He went on to confirm that the average number of days between fatal incidents and prosecution approval over the last five years has reached a relatively settled position. Average figures can be heavily influenced by the fact that a small number of complex investigations take several years to conclude, but the HSE expects the average time for inspection between its taking primacy and a prosecution decision to continue to fall in future years.
This debate comes close on the announcement of new sentencing guidelines in relation to health and safety and corporate manslaughter cases that have been in force since the start of February 2016. These have already resulted in some higher fines than would have been imposed previously. These new guidelines and this debate demonstrate a commitment by the current government to continue to use criminal enforcement to put pressure on businesses in all sectors to improve safety. We can expect to see more convictions resulting in higher fines in the coming months.
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