What can we expect from our judges for health and safety breaches in the future?
Madeleine Abas, chair of the Health and Safety Lawyers' Association, forecasts a tougher regime coupled with a more common sense approach.
She talks to Emma Crates
TWELVE years ago, when Madeleine Abas was just starting out as a criminal lawyer, prosecutions for health and safety breaches in construction were given short shrift by courts and journalists alike.
The fines were very low, even for fatalities. The inquests would be brief and informal, with barristers rarely involved.
'I would turn up, do a quick 'guilty' plea, and the client would be fined £1,000. Journalists would find it all extremely dull and would usually leave in search of 'more exciting' local news stories going on in other courts, ' she remembers.
But that was a world before the Hatfield crash, the appalling accident with a runaway wagon at Tebay, and other disasters such as Transco in Larkhall, Scotland, where a gaspipe exploded in 1999, killing four people.
These and other accidents have precipitated something amounting to a seismic shift in the way judges handle cases. Companies and their directors increasingly find themselves in the spotlight, with the media salivating for a full feeding frenzy in court.
These days prosecutions can go ahead, even when there has been no death or injury.
'They're prosecuting now on a risk basis, ' says Ms Abas.
Take the case of a supervisor of a major contractor who is facing prosecution.
The man was notionally supervising an excavation that did not have trench support. Although no one was injured, the work was spotted by a health and safety inspector who thought that the trench could collapse.
'The whole gang should have known that trench support was needed. Their boss should have known.
My client should also have known. He's been in construction for decades and never had an accident, never even been interviewed about one. He was distracted due to very compelling personal reasons.'
And, says Ms Abas, despite a whole array of personal circumstances that make it incredibly cruel that he is going to be prosecuted, the man is going to stand trial.
Ms Abas believes this would have been unthinkable 10 years ago. But the desire to prosecute individuals is growing. This is primarily because of changing HSE policy. It now asks its inspectors to 'stop and think' whether any individual should be prosecuted.
Fines are also rising steadily. Certain legal authorities, says Ms Abas, suggest that the starting point for a death at work could be £500,000.
'But that doesn't mean it's a black and white rule.
I've never had a sentence of anything like that, ' she comments.
But directors should beware. Recent rulings have indicated that judges are now prepared to put companies out of business if their health and safety failings are so bad that they should not be allowed to act as an employer.
The giant contractors can also expect comparatively larger fines than smaller firms 'even though they might have done 99 things out of 100 to establish a safe place of work, ' she says. 'A smaller company, by contrast, may have done nothing, and cut corners.
The larger company may have behaved much more responsibly, but it will still get the bigger fine.'
But for companies that have established a safe system of work and are unfor tunate enough to have an accident despite this, there is hope.
Previously, even if a company had done everything right but an individual had died or become injured through his or her own actions, or an unforeseeable event, companies were technically guilty of a criminal offence.
In June the court of appeal clarified this aspect of the law. Ms Abas welcomes a recent ruling in a case she was dealing with this summer.
She says: 'Trials are pretty rare in this field of work.
But we were adamant that we had done every thing we could do to prevent an accident. The judge actually stopped the case and said: 'It's clear that you have a system of work in place. You had trained everyone and inducted them all. You had given clear instructions.
And just on a one-off, someone disobeyed them.'' To be successfully prosecuted, she says, companies have to be shown to fall beneath the safety standard if they have an accident or near m iss.
'I have to say that's an ext remely welcome common sense approach, ' she adds.
The law has also changed in a less welcome way for companies. Since January, the police now have the power to arrest anybody for a criminal offence.
Previously this could only happen for arrestable offences.
So, in the world of health and safety, this applied to manslaughter charges in the cases of site deaths. Now the police's powers have been extended to all health and safety offences.
If an HSE inspector brought a police officer with him while investigating an accident, individuals could be arrested on the spot.
'It will take a while for the HSE to train its officers and for the message to disseminate. But it will be an issue for individuals and employers in the future, ' says Ms Abas.
Over the next few years she forecasts that judges could start imposing more imaginative penalties for health and safety breaches.
'We've had unlimited fines for years, there's nothing new about that. And certainly within the next five years I don't think there are going to be prison sentences for directors.'
But in legal circles, research is under way about the possibility of disqualifying negligent directors. Next year, the HSE will be issuing a code telling directors exactly what is expected of them.
This will go much further than the cu r rent guidance, which Ms Abas describes as 'very thin', and could pave the way for disqualification of individuals if they do not follow it.
Other possible scenarios are that companies could find themselves put on probation.
Probation, argues Ms Abas, works 'extremely well' in the criminal system for first time offenders, but she admits that a lot of research is needed before this would work on a corporate level.
'It's on the table for discussion. It's not a formal proposal yet, and it's going to take a lot of thinking as to how this could work.
'But having an independent observer assess whether companies are actually changing their culture for two years after the ruling is not such a crazy concept. I think it's quite interesting.'
In the mean time, she urges directors to ensure that they recruit extremely competent health and safety people, whose dedicated function is to devise systems of work and ensure that adequate supervision is in place.
'Directors have to understand a lit tle more about how the law works. New regulations are coming in twice a year from the HSE - it's really about understanding how to apply them, ' she says.
Madeleine Abas has written a tool kit for directors and health and safety professionals for dealing with investigations into fatalities.
MS ABAS warns that companies should also be aware that the Freedom of Information Act is already having an impact on cases. All documents passed to the Health and Safety Executive, which would normally be classed as commercially confidential, are now likely to be vulnerable under an FOI request.
'As soon as a criminal case is concluded, I've noticed that there has been an FOI request, either from the family's lawyers, or from the Centre for Corporate Accountability.
'And there is no doubt that organisations such as Families Against Corporate Killing will do this as well in the future, either to assist with a civil compensat ion claim, if it's not already set tled , or to make a story out of it.
'They might want to take an angle with the press about the way a company has behaved.'
CURRICULUM VITAE: MADELEINE ABAS
Madeleine Abas has been working as a criminal defence lawyer since 1994.
She is one of the founders of Osborn Abas Hunt, set up two years ago. The firm specialises in health and safety cases and is the only niche health and safety firm in the country that has been audited to carry out publicly funded work (representing individuals on legal aid).
Her practice has seven lawyers and around 55 files open at the moment, of which two thirds are on constructionrelated cases.
Ms Abas chairs the Health and Safety Lawyers' Association, which has around 400 members.