Focus on Health & Safety / Regulatory Law

Reorganisation of enforcement

There have been a number of significant changes in the landscape of enforcement of health and safety legislation. In Scotland, the prosecution function is with the Crown Office and Procurator Fiscal Service (COPFS). Organisations need to be aware that there is a greater political focus on achieving prosecutions for breaches of the law. The COPFS have set up three teams with specialist Fiscal Deputes to deal with health and safety prosecutions. This will allow them to build up expertise and experience in the prosecution of these offences.

The Enforcement Guide for Scotland which is used by the COPFS is available here

Corporate Homicide

The new offence in Scotland of Corporate Homicide came into force in 2008. In England the offence is Corporate Manslaughter. The first prosecution in underway in England. Conviction of this offence would have a major impact on any corporate body. Organisation should be aware of the potential sanctions open to the court of:

• an unlimited fine
• a remedial order
• a publicity order

A copy of the Act is available here

Sanctions if prosecuted

The potential level of fines on conviction is a real issue for all organisations. Although not directly applicable in Scotland, the Sentencing Guidelines Council (SGC) published its final guidelines for judges in the event of a Corporate Manslaughter conviction on 9 February 2010. This document is likely to be considered, albeit not strictly applied, in Scotland. It states that fines should “seldom be less than £500,000 and may be measured in millions of pounds”. Furthermore, the Guidelines state that the penalty for a breach of health & safety legislation will be in excess of £100,000.

Organisations have to be mindful of the £15 million fine imposed on Transco following the death of a family of four in Larkhall where that company was found to have breached health & safety legislation.

Individuals can also face prosecution and sanctions including fines and jail for breaches of health and safety legislation.

The SGC Guidelines (applicable in England and Wales only) are available here