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Rona Jamieson, a partner at Aberdeen’s leading commercial law firm Paull & Williamsons and one of Scotland’s leading health and safety law experts, considers new tough sanctions for those convicted of serious safety breaches, which could lead to imprisonment.

The Health and Safety (Offences) Act 2008 came into force on January 16, 2009 and introduced imprisonment as a sanction for most safety offences.

Individuals convicted in relation to breaches occurring after January 16 will for the first time face the risk of imprisonment in the most serious cases, for a period of up to 2 years. Individuals can be convicted of offences under Section 7 and Section 37 of the Health and Safety at Work Act 1974 where their behaviour endangers other workers or, in the case of directors and other senior staff, if their consent, connivance or neglect leads to a company breaching the legislation.

Where a company is convicted of a general breach of duty under sections 2 or 3 of the Health and Safety at Work Act 1974 the individual directors or managers of the company may face imprisonment if convicted under section 37 of the Act. Sole traders and other individuals with employees could face imprisonment for breaches of their general duties under Sections 2 and 3 of the 1974 Act.

Introducing the sanction of imprisonment for offences under the 1974 Act raises an issue in relation to compatibility with the European Convention on Human Rights (ECHR). The Convention enshrines the presumption of innocence in relation to criminal trials whilst the 1974 Act contains a provision in section 40, which reverses the onus of proof for breaches of that Act. The effect of section 40 is to require an accused to prove that they complied with the relevant legal duty. Previously the only penalty for failing to discharge that onus was a fine. Now that imprisonment is a possible sanction the fairness of the reversal of the onus of proof is likely to be challenged.

The Department of Work and Pensions has suggested that prosecutions of individuals will not be taken lightly but that may be of limited comfort. It is essential that those responsible for the management of health and safety at work are able to demonstrate that there are appropriate systems in place to manage safety, including an effective means of monitoring safety behaviour, within their organisation.

For further information please contact Rona Jamieson at Paull & Williamsons on (01224) 621621.