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    A LEGAL EAGLE WRITES

    Recent prosecutions suggest offences heard at ‘wrong’ venue?

    We have received the following from a solicitor, specialising in health and safety law, drawing attention to recent fines in HSE construction sector prosecutions.

    “In 1998 the Court of Appeal, in the case of R v F Howe (Engineers) Ltd, said “In our judgment magistrates should always think carefully before accepting jurisdiction in health and safety at work cases where … … serious injury has resulted from the offence”

    The Prosecutor, e.g. HSE, is entitled, and invited, to make representations to the magistrates as to whether they should retain jurisdiction or send a case to the Crown Court which can impose unlimited fines.

    The following recent cases (see HSE Construction Infonet October 2009) suggest that magistrates are retaining jurisdiction even where serious injuries have resulted from the offences.

    • Gateshead Magistrates’ 29.9.09: HSW Act. Serious incident. Fall 7m metres to the warehouse floor, sustaining serious injuries. Fines: Company £6k and Director £1k
    • Liverpool Magistrates’ 8.10.09: WAH Regulations 2005. Serious injury. Fell approximately 6m. Suffered back injuries in the fall and fractured his pelvis and chest. Long-term psychological effect. Unable to return to work. Fines: Company £3.5k
    • Newcastle-under-Lyme Magistrates’ 16.10.09: HSW Act. Fall fom the first floor, suffering life-threatening injuries. Fines:Company £8k
    • Norwich Magistrates’ 22.10.09: HSW Act. Fractured spine and metal disk required in back. Unable to work for a year and lost his sense of taste and smell. Fines: Sole trader £7.5k
    • Redditch Magistrates’ 15.10.09: HSW Act. Burns to 52 per cent of body and heart re-started. Fines: Company1 £11.9k, Company 2 £5.9k, Director of Company 2 £5.9k

    In 1998 the Court of Appeal said “Disquiet has been expressed in several quarters that the level of fine for health and safety offences is too low. We think there is force in this and that the figures with which we have been supplied support the concern”.

    The figures supplied to the Court showed that the average fine in the magistrates’ courts for breaches of the duties under sections 2 and 3 was £2,110 in 1992/93 and this had risen to £6,223 by 1998 whereas in the Crown Court the 1997/98 average fine per offence was £17,768.

    It might be as a result of the recession but clearly there has not been much change in the last 10 years.”

    Comment: These recent cases were all heard in the magistrates courts despite the apparent seriousness of the injury. There are at least two possible explanations: (a) HSE inspectors did not make representations that the cases be heard in the crown court or (b) the magistrate, having heard the facts, concluded that the overall seriousness of the offence and culpability of the offender were less than might first appear. 

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