It is no secret that the criminal justice system is in crisis. In January this year, 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 will continue 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.
Underfunding across all parts of the justice system causes and compounds the delays. The result is the worst of all worlds: cases collapsing, defendants and complainants waiting years for trials, and miscarriages of justice.
Ironically, these pressures could lead to an improvement in some enforcement decisions. Even conscientious organisations have accidents. It is often disproportionate to prosecute an organisation which has done all it reasonably could to ensure safety, even where there may be a “technical” breach.
Legal context
When the Robens Review of workplace health and safety concluded in 1972, the consensus was clear: criminal proceedings are not appropriate for the “generality” of offences arising under health and safety legislation, and should be reserved for “flagrant, wilful or reckless” breaches. The Health and Safety at Work Act 1974 followed, replacing prescriptive regulations with a general duties approach and creating the Health and Safety Executive.
The approach to enforcement has evolved over time. In the mid-1990s, following inquiries into several major disasters including the King’s Cross Underground Station fire, the Clapham junction rail crash, and the Piper Alpha oil rig fire – all of which found management failures which contributed to the disasters – the Court of Appeal decided in R v British Steel plc [1995] 1 WLR 1356. that a “a culture of guarding against the risks to health and safety by virtue of hazardous industrial operations will be promoted” by treating even “technical” failings as highly culpable and punishing them accordingly.
While the HSE and other safety regulators pursued a ‘strict liability’ approach to perceived management failures, the courts increased fines significantly. Although the number of prosecutions has steadily declined in the last few decades, prosecution remains the default, following the most serious accidents. Now, a collapsing criminal justice system and a recognition amongst safety regulators of the need for change may allow for a more discerning approach.
Downward trends
Prosecutions began decreasing long before the court backlog became critical. According to a HSE’s Annual Report of 2000, between 1999 and 2000, the HSE prosecuted 1,029 cases in England and Wales. The HSE’s Annual Report of 2011-12 showed that the figure had decreased to 551 cases; and HSE’s Annual Report of 2023-24 showed that the figure was 248 (in fact a slight increase on the previous year).
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 essentially flatlined. There are many reasons for improvements in workplace safety; however, fewer prosecutions have 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: if there is activity, there will be accidents. It may be that further marginal improvements are made independently of prosecution decisions, for example, due to technological change. This would allow regulators to focus resources on guidance and education, as well as other priorities such as workplace health, reserving prosecutions for those organisations and individuals indifferent to their safety responsibilities.
HSE’s ten-year strategy acknowledges that Great Britain now has one of the lowest rates of work-related injury across Europe, which it hopes to sustain by regulating in “different ways” given that businesses have increased in maturity and understanding of risk. This would allow HSE to focus its limited resources on guidance and education, reserving prosecutions for those organisations and individuals committing flagrant, wilful or reckless breaches.
Why prosecute?
Despite the pressures on the courts and the exploration of different approaches to regulation, safety regulators will prosecute following a serious accident unless satisfied that a prosecution is not warranted in a particular case.
The HSE’s 2015 Enforcement Policy Statement sets out the range of factors that will be considered 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 the Enforcement Policy Statement states that “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; and
- 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 approach of safety regulators since the late 1990s has been to:
- Assume that “the root causes of adverse events are almost inevitably management, organisational or planning failures,” as outlined in HSE Guidance Even if ostensibly “competent” workers on the front line made a poor decision, for example, this is liable to be attributed to a management failing – e.g. inadequate training, instruction, and/or supervision.
- Judge the failure by how far that decision, or alleged failing, fell below the appropriate standard, rather than a rounded consideration of all the efforts taken, and systems put in place to manage risk.
It follows that safety regulators will often conflate serious accidents with serious breaches worthy of prosecution. This analysis might be unfair, or simply wrong. 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. Well established cognitive biases including outcome bias, hindsight bias and confirmation bias may influence the regulator.
Practical takeaways
It would be unwise to rely on an exhausted and underfunded criminal justice system to produce optimal outcomes. When organisations have worked conscientiously to ensure safety, however, proactive and robust engagement with the regulator now has a better chance than ever of persuading them not to prosecute.
It is essential that an organisation’s defence begins at the outset. Once an investigation has built momentum, it is much more difficult to change its course. Whether or not an enforcement notice is served, it will be necessary to consider remedial actions. How the organisation reacts and the responses it gives to information requests covering the core aspects of the organisation’s systems will be key to any enforcement decision.
If there are complexities or context which enforcing authorities might otherwise not fully recognise, the need for an effective response is vital. For example, to explain complex systems; partially undocumented systems; the roles of third parties; and complex plant and machinery.
In many cases it is the approach of setting out early on, clearly and persuasively, often with expert evidence, the largely effective and appropriate nature of the organisation’s systems, notwithstanding the fact of any post-incident improvements, which provides the best chance of avoiding prosecution.
This article was first written for and published by Law360 on 25 March 2025. To read the full article, please click here.
