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Case studies: custodial sentences for health and safety breaches

Following recent statistics showing an increase in the number of custodial sentences imposed for health and safety offences, this article reviews two recent court cases which appear to illustrate this surge in penalisation.  

The two cases below illustrate the potential for individuals in management positions to receive prison sentences for health and safety breaches, part of an increasing trend towards prosecutions of individuals.

Case one

In the first case, the owner of a scaffolding business was jailed for 15 months and fined for two counts of failure to disclose essential documents, following the death of a worker at a scaffolding site.

Mark Hayes was found guilty of breaching the Working at Height Regulations 2005 following the incident in July 2012, in which one of Hayes’ workers fell 14 metres from tower scaffolding sustaining fatal injuries. 

The Court heard that edge protection was missing from the scaffolding with no alternative measures in place, such as a fall arrest harness, to prevent or mitigate the fall.

Hayes was deemed responsible for the scaffolding and found guilty for failing to properly plan, supervise and carry out work at height in a safe manner. 

Hayes also received combined fines of £12,000, including fines for breaches of the Health & Safety at Work etc Act 1974 (HSWA), after failing to comply with a Notice to Produce served by the HSE. When eventually supplied, the documents requested by the HSE highlighted that Hayes could and should have done more to prevent the fall. 

Hayes is the tenth recipient of a custodial sentence for health and safety offences in the past two months. To put this in perspective, prior to July 2014 there had been just over 100 custodial sentences for such offences in the previous 40 years. 

Case two

In the second case, businessmen Paul O’Boyle and Russell Lee were handed custodial sentences in August 2014 for health and safety offences arising from the death of a worker at their company’s foundry in September 2010.

The worker at Aztech BA Limited was crushed by a metal sand moulding box that fell from a crane he was operating at the time. The HSE identified a series of concerns with systems of work and the lifting equipment, and found that the fatality could have been avoided had the system of work been reviewed and properly addressed. 

The Court heard that at the time of the worker’s death the foundry was subject to three previous HSE improvement notices; few improvements had been satisfactorily implemented and the HSE considered that the fatality could have been avoided had the necessary improvements been actioned.

A joint investigation was also undertaken by BIS (the Department for Business Innovation and Skills) into Companies Act offences identified during the HSE’s investigation.

At Winchester Crown Court, O’Boyle was sentenced to 26 months in prison - including a 16 month custodial sentence for breach of HSWA. Lee received a 12 month custodial sentence suspended for two years for breaching HSWA. Finally, the company was sentenced for breaching Section 2(1) HSWA and a fine of £100,000 was imposed.

These cases serve to illustrate the increasing trend towards custodial sentences being imposed for health and safety offences, but it should be noted that there were aggravating circumstances in both.

Aggravating circumstances

Hayes’ refusal to co-operate with the HSE investigation caused delays in the investigation itself and the Coroner’s Inquest. Hayes was also already serving a life sentence for murder, from which his 15 month custodial sentence will run concurrently.  

In the case of Aztech BA Limited, previous HSE enforcement notices had not been complied with and O’Boyle and Lee were also found guilty of Fraud and Company Act offences. In addition, during their investigation into the fatality HSE found that workers were exposed to harmful levels of lead.

It would seem that although the number of custodial sentences imposed for health and safety breaches is increasing, the Court continues to reserve the most severe penalties for serious and prolific offenders. This highlights the need to co-operate with investigators, demonstrate a proactive attitude towards health and safety, and to seek legal advice when confronted with the prospects of a prosecution.

If you have any questions or would like more information, please contact Gary Smith.

Author: Siân Musker

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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Gary Smith

Director

I am a Director at DWF and head up the Criminal Regulatory team in the Liverpool office.