Menu Search through site content What are you looking for?

Regulatory issues - 2019 in review

  • 15 January 2020 15 January 2020
  • Regulatory & Investigations

Regulatory issues - 2019 in review

For regulatory practitioners, the key area of focus last year was the consistently high level of fines issued by the Health and Safety Executive (HSE). However, this year has seen various issues for those in the regulatory arena to get to grips with, including work-related ill health, road traffic and coroner's inquests.

Following the HSE's annual 2018/19 report on injury and ill-health statistics, we have seen a more complicated picture emerging compared to previous years. Whilst the number of fatalities has stayed broadly the same in recent years (147), we note that over the past 5 years there has been a significant fall in prosecution cases by the HSE/Crown Office and Procurator Fiscal Service (Scotland) of around 650 (2014/15) to 364 (2018/19). Total fine levels have also dropped (£54.5 million), with average fine levels appearing to stagnate, at least for the moment (£150,000).

Whilst there does not appear to be one clear reason to explain the above shift, our initial thoughts are that fines are plateauing due to the new sentencing guidelines bedding in, following an initial marked increase in the levels. Should the right case come along (as seen in the environmental sphere with the Thames Water fine of £20 million back in 2017), there will potentially be another big jump resulting in fine levels picking up across the board for serious offences.

We query whether the HSE is in a transitional phase at present, with a number of more senior Inspectors leaving, perhaps as a result of the Fee for Intervention regime. Replacing them will take time. We may be in a changeover period whilst the raft of younger/less experienced Inspectors are recruited and trained to replace the gap left by the exiting older, more experienced Inspectors. Once the new Inspectors are in place and have some time served under their belt, we may start to see a rise in prosecution levels.

We note that the Department of Work and Pension's "Tailored Review of the HSE" specifically flagged that the HSE should review its risk appetite in prosecutions and consider taking on more challenging prosecutions. It is also possible that Notifications of Contravention are being used as an enforcement response for less serious offences instead of prosecution and this has contributed to the fall.

Moving away from those key figures above, the HSE has demonstrated an ongoing focus on work-related ill health.  The HSE's Business Plan for 2019/20 draws on the previous year's work, existing sector plans and the Helping Great Britain Work Well strategy, with a continued focus on tackling three major causes of work-related ill health: musculoskeletal disorders, occupational lung disease and work-related stress.

The ongoing impact of work-related ill health was highlighted in the HSE annual figures:

  • Work-related ill health cases: 1.4 million

  • Work-related stress, depression or anxiety cases: 0.6 million

  • Work-related MSDs: 0.5 million

  • Work-related OLDs: 12,000 deaths and 18,000 new cases each year

  • Working days lost to injury and ill health: 28.2 million

In terms of work-related stress, the above figures reiterate the significant implications of ignoring this issue. It remains to be seen if the HSE shows an appetite in the future to prosecute businesses who fail to comply with their duties, particularly in light of falling rates of prosecutions. It is our initial view is that improvement notices will be used in the first instance.

With such stark figures, as well as the continuing commitment to tackling ill health in the workplace, businesses in the priority sectors can expect further focus from the HSE.  We have already seen the HSE roll out of a programme of inspections across waste and recycling, which is expected to continue across other industries going into the New Year.

Changing lanes into the issue of prosecuting serious driving offences, a number of changes to sentencing were proposed following a government consultation in 2017, increasing both the maximum penalties for existing offences, and creating a new offence of causing serious injury by careless driving.

Whilst the legislation did not proceed prior to the dissolution of Parliament in October, if the proposals are to become law, we expect to see a substantial increase in the volume of prosecutions once the new legislation is passed. Given the more extensive sentencing framework that will be in place for these offences, with prison sentences becoming increasingly likely, it remains to be seen if more drivers want to contest allegations and elect a jury trial or whether the introduction of the new offence fills the gap with more pleas being offered.

As calls were made to change how serious driving offences were prosecuted, the use of mobile phones behind the wheel was also placed under intense scrutiny, following the Transport Select Committee's inquiry into road safety which invited suggestions to help reduce road traffic collisions.

Since 2003 it has been an offence to use a hand-held mobile phone or other hand-held device while driving, yet hands-free devices remain excluded due to perceived enforcement difficulties.

It is uncontroversial that driving while using a mobile phone impairs the ability to drive safely and increases the risk of a collision. In 2017 there were 773 casualties, including 43 fatalities and 135 serious injuries, in road traffic collisions where a driver using a mobile phone was a contributory factor in the crash.

Despite the above, Ministers have for the moment ruled out extending the ban to driving with hands-free options; we suggest it is clear that mobile phone use behind the wheel is an issue that needs further consideration by the government.

The case of DPP v Barreto illustrated the importance of this issue. It was held that for a motorist to be convicted of driving a motor vehicle while using a mobile phone, the motorist must be using the phone, in their hand at some stage of the process, for "interactive communication" at the time of the driving. As Mr Barreto was using his phone to film while driving, his conviction was quashed. The government has now announced plans to close this loophole as a matter of urgency. However, it is likely that until the legislation is amended, the prosecution will seek to prosecute use of phones while driving for purposes other than interactive communication as offences of careless or even dangerous driving, which carry greater penalties upon conviction.

On the issue of interactive communication, since their introduction in 2006 the network of smart motorways, using technology to vary applicable speed limits for drivers and regulate traffic flows, has grown significantly to account for around 400 miles of England's roads. However, the government announced this year that it would undertake an urgent review of these roads.

Their stated benefits have been subject to criticism following a number of fatalities involving stranded vehicles and vehicles proceeding down closed lanes, with "dynamic hard shoulders" leaving  members of the public unsure when they can use the hard shoulder.

With Highways England potentially facing judicial review of the decision to introduce such roads, and in light of the government review, it appears that no more "dynamic hard shoulder" motorways will be constructed.

Moving from the smart motorway and into the Coroner's Court, the Court of Appeal recently confirmed in R (Maughan) v Senior Coroner for Oxfordshire, that the civil standard of proof is to be applied to findings of "suicide" (whether short form or in a narrative) and the criminal standard of proof will only apply to "unlawful killing".

Whilst permission to appeal to the Supreme Court has been granted, this decision provides welcome clarification to coroners and interested persons. The lower standard of proof will make it easier for coroners and juries to find a suicide conclusion, even where there is no positive evidence that the deceased intended to take their own life. Suicide prevention charities have long argued that the civil standard will give a more accurate picture of the problem, enabling more appropriate measures to help reduce suicide risks.  We expect that new guidance will be issued from the Chief Coroner in due course.


Stay up to date with Clyde & Co

Sign up to receive email updates straight to your inbox!