Over the last 18 months health and safety enforcement, like so many regulatory processes, has changed dramatically. Prosecuting authorities have had to consider the merits of cases that they were bringing for prosecution more closely than ever before, and whether any alternative disposals could be properly entertained.
Health and Safety Executive Inspectors, like most of us, have been home working, which meant that investigations have not been at the level that they were pre-pandemic. This, coupled with the backlogs we are seeing at courts across the country, has created an unprecedented level of pressure in the health and safety enforcement process.
The Code for Crown Prosecutors, which the HSE follow, requires prosecutors to consider the seriousness of the offence, culpability of the suspect and whether a prosecution is a proportionate response. During the height of the pandemic, a greater focus was placed on consideration of whether it was a proportionate response to bring a prosecution, especially considering the backlog of cases and the time it was taking to get a case to court; made much worse by the near shut-down of the criminal justice system. Unfortunately, with the enormous number of criminal cases outstanding, health and safety cases fell towards the bottom of the pecking order. As it stands now, more substantial cases are now being listed for trial in the Crown Court for late 2022 or early 2023.
What this means for companies or individuals being investigated for alleged breaches of legislation is that they are going to be left in limbo for a significant period of time, particularly with the less serious incidents. Compliance with health and safety law should be achieved through engagement with the HSE by way of advice, reviews and letters; formal enforcement should be taken by way of improvement or prohibition notices. Prosecutions are currently reserved for the most serious of offences.
The gradual re-opening of business and the courts coupled with the increased chance for Inspectors to proactively investigate does not mean that everything from the pandemic should be forgotten and that the default position must be prosecution.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.