A new frontier in the boundary between professional and private life – solicitors’ undertakings
The FT reported at the end of October that the number of company directors and senior managers prosecuted for health and safety offences has shown a marked increase. Figures obtained from the Health and Safety Executive (HSE) show that in the year to 31 March 2016, 46 company directors and senior managers were prosecuted for health and safety offences. In earlier years the equivalent numbers were 15 (2015), 23 (2012), and 31 (2011).
Company directors and senior managers can commit health and safety offences if their own actions amount to a breach of relevant health and safety legislation, but also if the company for which they work is guilty of a health and safety offence, and they can be said to have contributed to that offence through their consent, connivance, or neglect. Consent and connivance generally denote actual knowledge of facts or circumstances relevant to the offence while neglect does not. Whether a person can be said, through their neglect, to have contributed to the company’s offending will generally turn on the specific facts of the case. For example, whether a person conducted their role in the location where the company’s offence occurred, and whether their role had some connection to the offending behaviour, are factors that might be relevant.
Of the 46 directors and senior managers prosecuted, 34 were convicted. At 74% this is a considerably lower conviction rate than is generally the case for health and safety cases (at around 95%). This is doubtless a reflection of the fact both that individuals prosecuted for health and safety offences are more likely to defend those prosecutions (where as the vast majority of companies plead guilty) and that juries are likely to be less inclined to convict an individual than a company.
Separate figures reproduced in another recent article suggest that the number of people receiving prison sentences for health and safety offences has also increased significantly. In Health and Safety at Work Magazine it was reported that between February and September 2016, 23 people received sentences of imprisonment (though in the majority of cases these were suspended sentences). This compares with an average of less than five per year in the period 1974 to 2016. A change in the law in 2009 gave judges the option to impose prison sentences for a much wider range of health and safety offences than previously.
Health and safety prosecutions historically have focused predominantly on corporate rather than human offending. These latest figures suggest a greater appetite to prosecute individuals and a greater willingness to impose custodial sentences on those individuals convicted.
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