Serious accident investigations and enforcement decisions

Will a collapsing criminal justice system return proportionality to enforcement decisions? Tom McNeill and Olivia Dwan look at the issues.

The collapse of criminal justice

It is no secret that the criminal justice system is in crisis. In January, Dame Antonia Romeo, the permanent secretary at the Ministry of Justice, confirmed that the record backlog of cases in the crown courts in England and Wales of more than 73,000 is not decreasing, but set to grow significantly. Trials are currently being listed for 2028. The backlog in the magistrates’ courts, where all criminal cases begin, was over 300,000 last year.

The enormous delays are caused and compounded by massive underfunding across all parts of the justice system, resulting in the worst of all worlds: cases collapsing; defendants and complainants waiting years for trials; and miscarriages of justice.

There is one area however where these pressures might in fact lead to better outcomes: enforcement decisions following workplace serious accidents. The issue is that even conscientious organisations have accidents. It is often disproportionate to prosecute an organisation which has done all it could to ensure safety, even if something was missed which might amount to a breach; it has no benefit as a deterrent and was not the intention when the Health and Safety at Work Act became law.

Safety regulators and the courts however are sometimes poor at assessing organisational culpability; and their approach to enforcement can result in prosecuting the worst outcomes rather than the worst failings. Significant budget shortfalls in recent years, however, and knowing that a prosecution might not be heard until 2028, together with internal recognition of the need for change, provides greater scope for persuading a safety regulator not to prosecute such cases.

Health and safety enforcement

The downward trend in safety prosecutions began long before the court backlog became critical. In 1999-00, 1,029 cases were prosecuted by the Health and Safety Executive in England and Wales; by 2011-12, that was down to 551 cases; and in 2023-24 the figure was 248 (in fact a slight increase on the previous year). This fall in prosecutions is broadly consistent with reductions in budgets.

Whilst safety prosecutions have fallen in number, workplaces have become much safer: both fatal and non-fatal (reportable) accidents have declined significantly since 2000. Since 2010, the rate of fatal accidents has more or less flatlined, with a rate of fatality per 100,000 workers never far from its current rate of 0.42.

There are many reasons for improvements in workplace safety, of course, but certainly fewer prosecutions has not led to an increase in serious accidents. It might be that in certain sectors a baseline is reached beyond which it is not possible to improve: for as long as there is activity involving people, there will be accidents.

Alternatively, it may be that further (marginal) improvements are made independently of prosecution decisions by regulators, for example due to technological changes. This would allow regulators to focus resources on guidance and education, and other priorities such as workplace health, reserving prosecutions for those organisations and individuals indifferent to their safety responsibilities.

This may explain the HSE’s 10-year strategy: “Great Britain has one of the lowest rates of fatal and non-fatal work-related injury across Europe. We have seen real progress in how businesses understand and control workplace safety risk…The maturity of business and their increased level of understanding of safety risks means that we can look to regulate in different ways. This should allow us to focus on achieving similar improvements in workplace health.”

Approach of safety regulators

Regardless of the pressures in the criminal justice system, and the exploration of different approaches to regulation, enforcement bodies will prosecute following a serious accident unless they are satisfied that a prosecution is not warranted in that particular case.

The HSE’s Enforcement Policy Statement sets out the range of factors that the HSE will consider when making an enforcement decision. The HSE will normally prosecute when one or more specified circumstances apply, including:

• “death was a result of a breach of the legislation” (although “there will be occasions where the public interest does not require a prosecution, depending on the nature of the breach and the surrounding circumstances of the death”);
• “the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it”;
• “there has been reckless disregard of health and safety requirements”;
• “there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance”;
• “a duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk”

Unsurprisingly, how the accident and safe system of work are analysed will be critical to the enforcement decision. The difficulty is that the starting assumption of the safety regulator for more than two decades has usually been that the incident was the fault of the organisations involved. HSE guidance, for example, states that “the root causes of adverse events are almost inevitably management, organisational or planning failures” – and this approach exactly reflects how the HSE and other regulators investigate and enforce health and safety.

If ostensibly “competent” workers on the front line made a poor decision, for example, that might be attributed to a failure to properly apply the hierarchy of control, and/or poor training, instruction, or supervision – where inevitably such “management” failures were found to have persisted over a long period where the risk of death or serious injury was obvious (with hindsight, which accident is not?). Hence the decision to prosecute following a serious accident.

Defending serious accident investigations

In some cases, however, analysis by the safety regulator might be unfair, or simply wrong. The hierarchy of control might have been properly applied, but in the circumstances be incapable of removing the risk. There might be unrealistic expectations in relation to training, instruction and supervision which go beyond what is reasonably practicable. The regulator might not fully understand the complexities of certain safe systems of work, the roles of third parties, or plant and machinery.

The essential point is that, when organisations have worked conscientiously to ensure safety, proactive and robust early engagement with the regulator addressing such matters now has a better chance than ever of persuading a regulator not to prosecute. Insofar as some elements of the safe system of work were not as good as they could have been, or something was missed, safety regulators can be reminded of the findings of the Robens Report, the culmination of an extensive review by the Committee on Health and Safety at Work which the Health and Safety at Work etc. Act 1974 sought to implement:

“The fact is—and we believe this to be widely recognised—that the traditional concepts of the criminal law are not readily applicable to the majority of infringements which arise under this type of legislation. Relatively few offences are clear-cut, few arise from reckless indifference to the possibility of causing injury, few can be laid without qualification at the door of a particular individual. The typical infringement or combination of infringements arises rather through carelessness, oversight, lack of knowledge or means, inadequate supervision or sheer inefficiency. In such circumstances the process of prosecution and punishment by the criminal courts is largely an irrelevancy. The real need is for a constructive means of ensuring that practical improvements are made and preventive measures adopted. Whatever the value of the threat of prosecution, the actual process of prosecution makes little direct contribution towards this end. On the contrary, the laborious work of preparing prosecutions —and in the case of the Factory Inspectorate, of actually conducting them— consumes much valuable time which the inspectorates are naturally reluctant to devote to such little purpose…”.

And again:

“We have said that criminal proceedings are inappropriate for the generality of offences that arise under safety and health at work legislation. We recommend that criminal proceedings should, as a matter of policy, be instituted only for infringements of a type where the imposition of exemplary punishment would be generally expected and supported by the public. We mean by this offences of a flagrant, wilful or reckless nature which either have or could have resulted in serious injury…”.

Tom McNeill is a Partner and Olivia Dwan is an Associate at BCL Solicitors.