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Ignorance is no defence on danger

A recent court judgement shows ignorance is no defence if there are safety breaches in your company, says lawyer Madeleine Abas

Directors and managers who bury their head in the sand on health and safety should take heed of a recent ruling from the Court of Appeal.

Criminal liability can extend to those who are blissfully unaware of dangerous practices in their workplace. Laziness, inadvertence or negligence can be punished with an unlimited fine and a 15 year disqualification from acting as a director or manager.

Under the Health and Safety at Work Act 1974 directors can be held personally liable for offences committed by their company, where the offence was committed with their consent or connivance, or was attributable to their neglect.

While the original white paper recommended prosecutions only where offences were of a flagrant, wilful or reckless nature, this wasn’t reflected in the Act’s final words.

Dismissing the charges

In the prosecutions following the Hatfield Rail Crash, section 37 was dissected by the judge.

Before dismissing the charges against the defendants, preferring the approach recommended in the White Paper, he declared “To the extent that…section 37 goes into the boardroom.. in search of criminal responsibility, …it does not do so in search of the merely careless or purely negligent officer.

It is looking [for] those whose seniority and subjective knowledge…is such that an extension of criminal liability to them in their personal capacities is just and proper.” In other words, someone very senior who knows there is a problem, but takes no action to remedy it.

This view was put to the test recently in proceedings against a company managing director who was also chairman of his company’s health and safety committee. He faced two counts - alleging he had consented to or connived with an offence committed by his company, or that it was due to his neglect - of contravening Section 37.

Obviously dangerous

The prosecution was about the collision of two fork-lift trucks. One of them was “riding reel” - carrying a third and unclamped newspaper reel on top of two clamped reels - alleged by the HSE to be both obviously dangerous and commonplace. Like the judge for Hatfield, this judge ruled that the prosecution must prove the MD had actually known about the practice of riding reel.

The HSE took the case to the Court of Appeal. It ruled that the Hatfield judge had gone too far. To succeed on the “neglect” part of section 37, the prosecution did not have to prove any subjective knowledge of the danger.

A prosecution could succeed, the appeal court said, where the prosecution merely showed that the director should have, by reason of the surrounding circumstances and his role, taken steps to determine if safety procedures were in place. The MD now faces trial on that basis.

With the HSE promising more effective prosecutions under section 37, this case has wide ramifications. Understand what is expected of you and if you are in any doubt as to how effective you being are in identifying and eradicating dangerous practices in your workplace, take advice.

Madeleine Abas is partner with health and safety legal practice Osborn Abas Hunt. She will be writing regularly for CN on safety issues.