Penalties

• Maximum penalties for section 33 HSWA offences
• Employers' Liability (Compulsory Insurance) Act 1969
• Compensation orders
• Community orders
• Disqualification orders
• Power of court to order remedial action
• Fixing the sentence
• Appeals against sentence
• Table of maximum penalties under s.33 HSWA1974 (as amended)
• Table of maximum penalties under Health and safety (Offences) Act 2008

Maximum penalties for section 33 HSWA offences

Breaches of health and safety legislation are offences under section 33 HSWA.  For offences committed before 16 January 2009 offences are established by section 33 HSWA as amended by s 4(2) of the Offshore Safety Act 1992.  The penalties are summarised in table 1.
For offences committed after 16 January 2009, the penalties are set out in the Health and Safety (Offences) Act 2008 and are summarised in Table 2 below.

Employers' Liability (Compulsory Insurance) Act 1969

The maximum fines for offences under the Employers Liability (Compulsory Insurance) Act 1969 are £1,000 (level 3 on the standard scale) in respect of s.4 offences, and £2,500 (level 4 on the standard scale) in respect of s.5 offences. ¹ These offences are only triable summarily.

Compensation orders

Courts have a discretionary power to make an order requiring a convicted defendant to pay compensation for any personal injury, loss or damage resulting from the offence. Though no compensation order can be made in respect of loss suffered in consequence of the death of any person. ²

The maximum sum that can be awarded following summary proceedings is £5,000 in respect of each offence. Following solemn proceedings there is no limit in the amount of compensation which may be awarded. ³

A compensation order can be imposed alongside a separate sentence or as a penalty in its own right. Where both a fine and a compensation order are appropriate but the offender lacks the means to pay both, the compensation order payments will take priority.

The amount of compensation should be such as the court considers appropriate. In making the order, the court must have regard to the defendant's means, and the defendant and the prosecutor can make representations to the court as to the loss suffered by the victim.

The offender may apply for review of the compensation order at any time before the whole of the money under the order has been paid ⁴. For such an application to be successful, there must have been a change to the factual basis upon which the original court based its decision (eg a substantial and unexpected reduction in the means of the offender).

Community orders

Where a person is convicted of an offence punishable by imprisonment, and the court considers that a custodial sentence is appropriate, the court may alternatively make a community service order, requiring the offender to perform unpaid work on behalf of the community for a specified period (minimum of 80 or maximum of 300 hours) ⁵. Before an order can be made the offender must have consented to it and the court must have considered a pre-sentence report assessing offender's suitability for community service. A community service order may be combined with other orders if the court deems it appropriate.

Disqualification orders

The court is empowered to make a disqualification order against a person convicted of an indictable offence in connection with the promotion, formation, management, liquidation or striking off of a company or with the management of a company's property⁶.

Disqualified persons must not, without the leave of the court, be a director, liquidator or administrator of a company, or manager of company property, or in any way, directly or indirectly, be concerned or take part in the promotion, formation or management of a company for a specified period. The maximum period of disqualification is five years on summary conviction and fifteen years in solemn cases.

Power of court to order remedial action

Under section 42 HSWA, where a person is convicted of breaching a relevant statutory provision, and it appears to the court that it is in his/her/its power to remedy any matters in respect of the offence, the court can (in addition to or instead of any other sentence) order the defendant to take steps to remedy those matters. The time for compliance with the order and the steps to be taken to remedy the matters will be contained in the order. ⁷

This penalty may be particularly relevant where the case involves failure to comply with the requirements of an enforcement notice.

When a person is convicted of acquiring, possessing or using an explosive article or substance in breach of relevant statutory provisions, the court may order the explosive article or substance in question to be forfeited and either destroyed or dealt with in any other way the court orders. ⁸

You should note that, where the owner of the article or substance or any other interested party applies to the court on the question of a forfeiture order, the court must not make the order without giving that person an opportunity to justify why the order should not be made. ⁹

It is an offence to fail to comply with an order made by the court under section 42. ¹⁰

Fixing the sentence

Sentencing is entirely a matter for the sheriff or judge. The prosecutor is not entitled to make representations on this matter or to remind the court of their sentencing powers. The sheriff or judge should fix penalty which, in his opinion, reflects the circumstances of the offence. In so doing he must take into account all the circumstances of the case, including the financial circumstances of the accused, whether an individual, a partnership, or a company, and whether or not this has the effect of increasing or diminishing the amount of the fine.

The court may not pass a custodial sentence unless it is of the opinion that no other method of dealing with the offender is appropriate.

Unlike the position in England and Wales, the prosecution is not entitled to recover the costs of the investigation and an accused person who is acquitted is also unable to recover costs.

Appeals against sentence

On appeal, the High Court can affirm, quash or vary (including increasing or decreasing) a sentence appealed against, including a compensation order, ¹¹ and an order for disqualification of a director. ¹²

Table 1 Maximum penalties under s.33 HSWA1974 (as amended)

Note that: s.33(4)(d) and s.33(5) are repealed

Table 2 Summary of maximum penalties under Health and Safety (Offences) Act 2008 for offences committed on or after 16 January 2009

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Footnotes

1. 1. Employers' Liability (Compulsory Insurance) Act 1969, ss.4(3) and 5, as amended by CJA 1982, ss.37 & 46, as amended by CJA 1991, s.17(1). Back to reference of footnote 1
2. 2. s.249(4) Criminal Procedure ( Scotland) Act 1995. Back to reference of footnote 2
3. 3. Criminal Procedure ( Scotland) Act 1995, s.249(7). Back to reference of footnote 3
4. 4. Criminal Procedure ( Scotland) Act 1995 s.251. Back to reference of footnote 4
5. 5. Criminal Procedure ( Scotland) Act 1995 s.238. Back to reference of footnote 5
6. 6. Company Directors Disqualification Act ( CDDA) 1986, s.2(1). The test of whether an offence is in connection with the management of a company is whether it has "some relevant factual connection with the management of the company" R v Goodman [1993] 2 All ER 789, CA.
   A disqualification order cannot be made where the person has only been convicted of a summary-only offence, such as intentionally obstructing an inspector, but such an order can be made where an indictable (either way) offence has been tried summarily. See the table of penalties at the end of this section.
   See OC130/8 on Prosecuting Individuals for further guidance, in particular Appendix 6. Back to reference of footnote 6
7. .7 Section 42(1) HSWA 1974. Back to reference of footnote 7
8. 8. Section 42(4) HSWA 1974. Back to reference of footnote 8
9. 9. Section 42(5) HSWA 1974. Back to reference of footnote 9
10. 10. Section 33(1)(o) HSWA 1974. Back to reference of footnote 10
11. 11. Brown -v- Normand 1988 sccr.229. Back to reference of footnote 11
12. 12. Secretary of State for Trade and Industry v Bannister (1995) TLR, 26 July. Back to reference of footnote 12