The aim of this new book is set out within the first few pages and is to: ‘give an introduction to the issues involved in a health and safety prosecution, and to suggest some of the practical matters that need to be considered’.
Mr Appleby is an experienced author and solicitor, and Mr Forlin is a barrister with special insights into work-related manslaughter cases, and between them they have produced a text that does indeed meet their stated aim. The book contains 20 short chapters, three useful appendices and a not very extensive set of literature references.
Without doubt the arrival of this book is particularly timely as health and safety prosecutions, in whatever industry, are of increasing importance for a range of reasons. First, there is the level of fines that are now imposed by the courts for serious offences against the UK health and safety law, which can be measured in millions of pounds, and no company can afford not to sit up and take notice. Second, convictions for health and safety offences are correctly seen as being bad for business and can result in companies or organisations being struck off tender lists and thus being deprived of the ability to bid for work. Third, some accident rates remain stubbornly high; in the construction industry in particular the total of fatal accidents for 2006/07 has just risen by 28% over the previous years total, which is not a good sign given Health and Safety Executive (HSE) and industry campaigns since 2000.
Without doubt the most informative chapters are those in which the depth of the authors' legal experience and expertise is obvious. These are
Chapter 4–Prosecuting employers
Chapter 5–Prosecuting individuals
Chapter 10–Manslaughter
Chapter 12–Investigation.
Chapter 4 is, in essence, the heart of this useful publication as it is where the authors focus on the detail of sections 2 and 3 of the Health and Safety at Work (HSW) Act 1974; the legal niceties of precisely when these Sections are breached by employers or organisations; what exactly does ‘so far as reasonably practicable’ really mean in both practical and legal terms; how health and safety responsibilities can or cannot be delegated; and whether employers can escape conviction by blaming the exposure to risk on the failures of their employees. Chapter 5 is also timely and important as there seems to be an increasing trend by the HSE to accuse individuals of failures under the HSW Act, and particularly under the wide terms of section 7(a). Another often ‘grey area’ is the business of the ‘reverse burden of proof’ under section 40, which is often mistaken by employers, and design companies in the construction field ought to brief themselves on this matter as section 40 has been added throughout the 2007 Construction (Design and Management) Regulations (CDM). Chapter 10 on manslaughter is also welcome although written before the royal assent was given to the new Corporate Manslaughter and Corporate Homicide Act 2007. Key legal cases are discussed in detail where issues of ‘gross negligence’, ‘substantial’ cause of death and ‘directing minds' of corporate bodies are explored.
On the critical side, first there is a very minimal chapter on experts consisting of only three pages, which is disappointing; second, there is, as far as this reviewer can detect, not one word of criticism of the HSE and its drafting of UK legislation, enforcement policy or prosecution practices, and investigations, although there are lots of critics out there; and third, the readability of the book could be improved by the re-ordering of the chapters including swapping the last chapter with the first chapter. Text on the old 1994 CDM Regulations and the 1996 Construction (Health, Safety and Welfare) Regulations is now redundant.
This is a valuable book with significant and important insights, warnings and expert information for all those who have to handle or even contemplate the possibility of a health and safety prosecution—and that means just about everybody.
