Posted By Robert K Lewis The headline statement and the subsequent questions by journalists,radio presenters and the like that no-one is to face criminal charges as a consequence of the accident really gets under my skin. The HSE announce that they are now to consider safety prosecutions - as if these were not criminal sanctions. The first point to recognise is that the new CM proposals will have weaker penalties, ie unlimited fine, in effect than any under Sec. 37 and they will only be exacted against the company. S 37 gives power to the courts for up to 2 years imprisonment as well as an unlimited fine for those found guilty, followed by the possible disqualification as a director. I realise that these are less than Gross Negligence manslaughter but the judicial system does require a modicum standard of proof in order to convict of such a serious offence and individual culpability has to be proved. It would be wrong to aggregate responsibilities such that one individual is sacrificed for the good of the many. The crux of the problem is that the HSE have failed to use the tools that are available seeming to think that there has to be knowledge per se of the actions causing an offence for a director etc to be in breach. The real test for me has to be one that looks at what ought competent directors have known in the situation in which they were located with the information which was available. The second point is this unseemly delay which only prolongs the agony for the victims' families. There is no bar to the HSE assessing the HASAWA etc breaches and bringing these forward at the same time. They are part of the charge list and the judge may sentence appropriately folowing any guilty verdicts. It seems to me that it is eminently possible for there to be charges under 1 or more of the HASAWA duties etc and for all charges of individual and corporate manslaughter to be brought forward at the same time. The advantage in creating a unified charge sheet would be to clearly establish, for both victims and their families, that criminal offences have been recognised and brought to court. We would not have to endure the voices heard on Radio 4 the other day when a victim talked of there being no criminal charges and they will get away with merely health and safety charges. The duties of directors for me are abundantly clear and although I support an ACoP as a means of simplifying the prosecutions required, I do not believe that the legislation is particularly weak. I am not defending recalcitrant directors though, as a Flixboro survivor I am well aware what their failings can cause on a personal basis, I want the HSE to use its powers properly so as to ease the sufferings of those left behind after the tragedy has finished its run in the papers. Bob

Posted By Richard Chalkley Bob, Sadly your ideas are probably too radical as this would involve the Government (of which ever flavour) engaging in 'Joined up thinking'. H&S not being reagarded as criminal law by the press irks me too. I'd suggest sending a letter to the press / Radio 4 feedback but I'm too cynical to think that it would get you far. Might IOSH be persuaded to take this up? Richard.

Posted By Richard Chalkley Bob, I agree wholeheartedly about the Directors visability of events leading to H&S failures. We are in the process of complying with the Sarbanes-Oxley Act (SOX) from the US which is all about Corporate Financial Accountability after Enron and World Com. The aim of this is to reduce / eliminate the ability of Directors to deny knowledge after the fact. I feel that such a piece of legislation for H&S would be far more effective than a Corporate Manslaugter Bill. The finance changes we are bringing in as a result of SOX would be very effective indeed if applied to H&S and would make enforcements and prosecutions under the existing provisions much clearer and easier to implement rather than muddying the waters. What better to remove ignorance as a line of defence? Richard.

Posted By peter gotch In practice there are very few offences where HSWA Section 37 could be used to result in a prison sentence. See http://www.hse.gov.uk/pubns/hsc15.pdf Failing to comply with an improvement or prohibition notice, or a court remedy order (issued under the HSW Act sections 21, 22 and 42 respectively): Lower court maximum £20 000 and/or 6 months’ imprisonment Higher court maximum Unlimited fine and/or 2 years’ imprisonment Contravening licence requirements or provisions relating to explosives. Licensing requirements apply to nuclear installations, asbestos removal, and storage and manufacture of explosives. All entail serious hazards which must be rigorously controlled. Lower court maximum £5000 Higher court maximum Unlimited fine and/or 2 years’imprisonment. So serious breach of e.g. HSWA Section 2 allied to S37 action against Director could not result in imprisonment. HSE are pushing for available penalties to be increased, including as regards making imprisonment a more widespread option. Regards, Peter

Posted By steven bentham Restrictions on Policy decisions are obviously made on legal advice. You may wish to consider why Section 37 is so hard to enforce and how this hinders prosecutions. Its not internal 'policy' decisions that are at fault, the basic legislation is flawed [some would say] hence the support for Corporate Manslaughter. Rather than bring in Corporate Manslaughter which I see we are now supporting [may I say without adequate thought to how this will be enforced and the impact on industry!!]perhaps we should be changing the basics of HASAWA to make Section 37 better. Its easy for safety professionals to have a go at HSE for there lack of enforcement - we could be critical of ourselves when you look at the quality of some of our 'threads' P.S. I'm not having a pop at the author of this thread; I think you should be congratulated for opening this one.

Posted By Robert K Lewis Steve I realise that it is this healthy debate that will ultimately bring us to a better position. Section 37 has none of the restrictive character, in my view, that the HSC has created in its enforcement policy document, as highlighted by Peter, and I for one am always sceptical about the advice gov's and their departments claim to receive -It is not so long ago that the detention of foreign nationals was deeemed not legal by the house of lords, and there are many dabates over the right to act in many situations claimed as legal by government - there was sound legal advice to the government at all times. S 37 has got to be better used and an ACoP would quickly make the pathway to prosecutions far more clear and straightforward. I agree about CM and whilst I acknowledge John's input I think there is a great deal of spin being placed on the supposed efficacy of the proposed changes for CM. I presume also there are political turf wars ongoing at senior levels in the CPS and HSC/E for the current situation with prosecution decisions. My start point was the pain of the victims and I believe still that they are being sadly let down by the currrent state of the enforcement of the law that we have. Bob

Posted By Robert K Lewis Peter Section 33 is probably one of the most complex piece of legalese to leave a government department. As I read it the penalties for offences have been effectively graded for seriousness but I do not see section 37 offences listed and therefore would presume that whilst say section 2 to 7 offences are finable only the section 37 duty is not one where specified penalties exist and are therefore covered by section 33.3 and would on indictment hold the potential for imprisonment. I always felt the addition of 1A to be a thoroughly retrograde step although its intent was to limit the penalty on the company to a fine for such breaches. The none inclusion of Sect. 37 must hold an argument for the courts to convict. If not we are back at my point which is that the legislation we have needs to be effectively used not circumscribed by complex rules. Bob

Posted By steven bentham I accept what you say about the impact on families in these circumstances (I have professionally been involved through work and it is the worst part of my 20 odd years in the job). I would still stick to the line that a review of documents will not change the flaws in legislation. Blaming the HSE will bring no change either, Inspectors do work very hard in these circumstances. It is necessary to look at the big picture, is the legislation robust enough now? What changes are needed or are we going onto a new ball game with corporate manslaughter. You can discuss this thread until the cows come home, cannot IOSH organise a conference or think tank??