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Last Updated: Tuesday, 28 August 2007, 18:19 GMT 19:19 UK
Blast firm fine 'put in context'
The 400,000 fine imposed on the operators of a factory which exploded and led to the death of nine people has been branded "inadequate" by those caught up in the tragedy.

Lawyer Aisha Anwar explains why she believes the penalty must be seen in context.

Aisha Anwar
Aisha Anwar says a different issues are considered in sentencing
The fine may seem light, when compared to those imposed in previous cases, and will come as a disappointment to many, including the families of those who lost their lives and pressure groups who have been campaigning for tougher penalties.

Fines for breaches of the Health and Safety at Work Act 1974 have increased sharply in recent years - particularly where they result in a fatality.

The Scottish courts dealt out the highest ever such fine in 2005 against Transco, which paid out 15m following an explosion in Larkhall which killed four members of a family.

However, fines imposed by the courts must be seen in context. A fine of 400,000 against a company the size of ICL might be as effective as imposing a much larger fine upon a large corporate entity, such as Transco.

As the cost of these fines cannot be picked up by insurers, they have a direct impact on the offender's bottom-line.

'Avoid redundancies'

The courts are entitled to take a number of issues into consideration when sentencing in health and safety matters.

These include whether the company in question has entered a guilty plea at the first available opportunity, whether it has shown remorse, the severity of the risk of injury or death, whether there has been a failure to heed warnings and whether the company has a poor health and safety record.

The financial position of the company is also factored into sentencing and, while wishing to impose an effective penalty, the courts will usually try to avoid sinking the business or causing redundancies.

But a conviction under the Health and Safety at Work Act is often only one of a number of legal proceedings which are commenced after a workplace fatality.

More often than not, the relatives of the deceased seek damages for their losses.

Plant rubble
The plant operators pleaded guilty to four breaches of safety laws

In addition, where it is in the public interest to do so, the prosecuting authorities will consider whether to hold a fatal accident inquiry, to learn from the accident and educate the industry.

From April 2008, all workplace fatalities will be investigated under the new Corporate Manslaughter and Corporate Homicide Act 2007.

Arising from a perception of inadequate fines and a string of failed prosecutions for culpable homicide (in Scotland) or corporate manslaughter (in England), the new law has been described by Justice Minster Maria Eagle as "a ground-breaking piece of legislation".

While many campaigners remain disappointed the new law will not allow individual prosecutions, it will grant juries greater freedom to consider the actions of senior management and the company's general "safety culture".

It is impossible to determine whether the outcome of the ICL case would have been different, had it been tried under the Corporate Manslaughter and Corporate Homicide Act 2007.

However, if the new powers of the act can encourage companies to meet their health and safety obligations, hopefully such tragedies can be avoided entirely in the future.

Aisha Anwar is a specialist in health and safety law with corporate lawyers, Maclay Murray & Spens.

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