The Prosecution Problem

By Greg Smith. First published here: https://www.waylandlegal.com.au/blog/the-prosecution-problem

There is concerning trajectory in the current conversation about regulating health and safety in Australia. The conversation is almost exclusively focused on the consequences of workplace accidents, specifically ongoing calls for increasing penalties and introducing a class of offence called “Industrial Manslaughter”.

At the risk of trying to close gates long after the horses have bolted, I would like to suggest some other conversations which do not simply involve more of the same.

First, I think we can agree the purpose of health and safety legislation is not to punish individuals and organisations.

To the extent that health and safety legislation provides for punishment, it is a means to an end. The “end” – the purpose of health and safety legislation – in my view is to promote “safe” workplaces. If that is right, or at least something like that, punishment in health and safety legislation should contribute to the promotion of safe workplaces.

The question is, does it? Or might there be a better way to achieve that purpose?

Whatever might be said in support of increasing penalties for breaches of health and safety legislation, we must recognise that the punishment and prosecution process does have significant limitations in the context of promoting safe workplaces.

In my view, there are at least 6 important limitations in the prosecution process which at best minimise the processes contribution to safe workplaces, or at worst undermine safety.

Higher penalties drive legal risk management

In my experience, one of the responses to increased legal liability under health and safety legislation is increased “legal” risk management. Legal risk management is not always the same thing as “safety” risk management, and while I believe meeting legal obligations goes a long way to improving safety outcomes in the workplace, there is no doubt some of the things done in the name of managing legal risk can compromise safety.

An obvious example, although I think there are many, is the use of legal professional privilege in incident investigations. While legal professional privilege is an important and legitimate part of our legal process, it often creates difficulties in an organisation when it comes to talking about and learning from incidents.

There is no real evidence penalties work

I think it is fair to say that the current state of research in Australia cannot point to a definitive prosecution/penalty regime that has a high level of certainty for improving safety outcomes. The conversation is certainly far more nuanced than the simplistic debate we see now – big penalties will drive better behaviour.

Below is a link to a folder of various articles on this subject, which I will add to over time:

Prosecution and Penalty

As a general principle, criminal penalties are designed to work in two ways – specific deterrence and general deterrence.

Specific deterrence is designed to “deter” the offender who has been charged with an offence, from offending again.

It seems to me, in many cases there is nothing to be learned from the prosecution process that would assist an offender to improve their safety outcomes, and often the legal process simply drains resources which could be better applied to improve workplace safety.

In the case of general deterrence, the idea is businesses “generally” will see these prosecutions and not breach health and safety obligations.

I do not see clear evidence for that.

More often than not, businesses (especially small and medium-sized businesses) have no idea that prosecutions have occurred and no insight into the detail of the cases to understand what has happened or why it should matter to them. I have discussed this in some more detail below.

Prosecutions are not designed to examine safety

Prosecutions are not inquiries. They deal with a narrow range of facts relative to a specific charge. Quite often, the scope of those facts is narrowed further by an agreement between the prosecutor and the defendant, this is particularly true in the case of a guilty plea.

Prosecutions do not provide meaningful lessons from incidents, nor any examination of, or conversation about, how lessons might be applied more broadly.

There is almost no examination of management conduct

It is very rare, to the point of being non-existent, for a prosecution to examine the conduct of individual managers, unless the “manager” has day to day involvement or a direct “hands-on” role in the accident (see for example Neil Foster: Personal liability of company offices for corporate Occupational Health & Safety breaches).

You do not see chief executive officers of organisations having to sit in the witness box and explain what they did or did not understand about the effectiveness of their safety management systems.

The prosecution processes effectively shield middle and upper management from scrutiny, and again, this is particularly the case in a guilty plea.

There is no learning from prosecutions

While I have already said prosecutions are not inquiries, even if they were able to provide valuable lessons, it is almost impossible for those lessons to have any resonance. There is inevitably a significant delay between a workplace accident and the outcome of a prosecution. This delay is counted in years not months.

Moreover, in most cases, judgments from prosecutions are not publicly available – there is nothing to learn from.

Prosecutions are easily explained away

It is very easy for organisations to explain away the findings from the prosecution, to the extent they are aware of them. For example, because there is such a delay between an accident and the outcome of the prosecution it is very easy for an organisation to say something like:

“oh, that accident happened three years ago and nobody works like that anymore”

And because prosecutions focus on a narrow range of facts relevant to a specific charge, many prosecutions become even less relevant to other organisations. Common dismissals of prosecutions I have heard include:

“oh, that accident happened three years ago and nobody works like that anymore”

we don’t do that in our industry
we don’t use that specific piece of equipment
we have a checklist for that

The ease with which an organisation can explain away a prosecution, and why it doesn’t matter to them, also undermines the efficacy of general deterrence in these cases.

So, what might different look like?

What might a genuinely different response to workplace accidents look like? And, starting with the end in mind, what could be the public response to workplace accidents that might help improve workplace safety?

Let me say at this point, while I think prosecutions and penalties have a minimal contribution to make to improving safety outcomes in workplaces, I recognise there are cases where the full weight of public outrage needs to be impressed upon recalcitrant employers and individuals. But, I think we can take the prosecution and penalties out of health and safety legislation and move them into the criminal law proper.

The criminal law has shown itself perfectly capable of responding to workplace accidents, especially fatalities, and we have seen several recent convictions for manslaughter arising out of workplace accidents.

To my mind, the advantage of taking prosecutions and penalties out of health and safety legislation and moving them into the Criminal Codes is at least threefold.

First, it sends a message about the importance of health and safety legislation and that very serious breaches of health and safety obligations in the workplace will not be tolerated.

Second, it can free up the resources of health and safety regulators to allow them to focus on strategies of prevention and sharing lessons – to focus on improving safety not policing it.

Third, if we restrict a prosecution and penalty regime to only the most serious breaches of health and safety legislation it might help to create an atmosphere in the business community that is not scared of every little health and safety breach. It might generate a willingness to talk about health and safety more openly and honestly and share lessons and experience more readily.

But I’m not prepared to give business a free ride.

Business still needs to be held accountable for workplace safety, but that accountability should be focused in a way that contributes to workplace safety.

I would propose a system whereby workplace accidents are subject to a system of independent investigation, with the scope or size of the investigation determined by the nature of the incident. Not every incident would have to trigger such investigation, but we could easily identify levels or classes of incidents that should and included discretion with the health and safety regulator to require an investigation where they think it is warranted.

These investigations would have some important characteristics:

They would be paid for by the employer(s) involved in the incident;
They would require an examination of senior management in the context of due diligence;
They would have to be finalised within a mandated (short) period – months not years;
The findings and lessons for industry would have to be published.

The employers do not get a free ride – they have a financial accountability for the investigation, managers cannot hide behind the legal process and lessons become quickly and readily available.

There also needs to be a trade-off for this approach.

To ensure the best possible safety outcome from such an enquiry, I would propose that all the evidence in relation to the investigation is kept private as far as possible, and none of the evidence, nor the findings, nor anything arising from the investigation can be used against an employer or any other individual in any other legal proceedings whatsoever.

In addition, the investigation would have to make a finding about the level of cooperation by the various entities with the investigation, and cooperation with the investigation could be used as a mitigating factor in any subsequent criminal proceedings.

There is obviously a range of detail to be worked out in this approach, for example we would need to include penalty provisions for not cooperating with, or misleading, the investigation.

But in my view, on balance, this type of approach provides a truly safety focused outcome.

We would have workers compensation and other civil proceedings to compensate the victims of accidents.
We would have criminal proceedings to punish egregious breaches of health and safety.
We would have a dedicated safety process solely focused on improving safety outcomes which was not beholden to, or compromised by, any other legal process.

Or, we just keep doing what we’ve always done and hope for a different result.