HSE Scotland aims for 'limitless fines' for workplace deaths

• Assets could be seized if Scottish companies fall foul of the rules

One of Scotland's most senior lawyers is exploring ways in which businesses which fall foul of health and safety rules could be stripped of cash and assets.

According to a recently published transcript of the House of Commons Scottish Affair Committee hearing into Health and Safety in Scotland, Lord Advocate Frank Mulholland QC says he is actively considering ways to bring legal proceedings under the Proceeds of Crime Act 2002.

The Act allows the government to recover assets which are deemed to be 'proceeds of crime' and grants the police powers to seize cash which is crime-related.

Giving evidence to the committee, Mr. Mulholland QC said, "If a company is skimping on health and safety, and over a five-year period is not spending the money it should spend to prevent a particular accident, and, as a result of the savings, they make profit and it all ends in tears with a work-related death, you prosecute that particular company."

"It seems to me it is then open for the prosecution to look at proceeds of crime and what profit that company has generated as a result of the health and safety breach of duty that has taken place over a significant period of time. We are trying to develop some thinking and an approach to that."

Laura Cameron, a Partner at international law firm Pinsent Masons with over 15 years in Health and Safety matters, says that businesses would be "extremely concerned" by the development.

Cameron says, "This potentially signals a step change in the way that the prosecuting authorities are approaching the enforcement of health and safety rules. A lack of investment in health and safety could have serious consequences beyond a fine."

"This is bound to be a major concern for businesses, particularly in the energy and construction sectors where HSE investigations are relatively commonplace."

"Confiscating assets might seem somewhat draconian, particularly when there is already a lot of legislation in place to stop wrongdoing. Criminal offences already exist which potentially carry a custodial sentence for directors and unlimited fines for a company found guilty of corporate manslaughter. Adding to this is likely to cause real concern."

"Responsible businesses have nothing to fear from this initiative - there are plenty of large, sophisticated operators which take a robust and proactive approach to health and safety compliance. This appears to be aimed at is rogue operators."

"The message which seems to be coming from the HSE is that, in times of economic hardship, there can be no excuse for deliberate under-investment in compliance measures. Stripping out costs may be appealing in the short term but could be disastrous further down the track."

Cameron concludes, "It remains to be seen how easy it will be to get a successful result using the Proceeds of Crime Act. Even if you are able to prove that a particular incident was the direct result of failing to properly invest in safety procedures for financial reasons, being able to then identify the exact element of profit related to that will be incredibly difficult. It is a novel approach, but one that is not without difficulty."

 Frank Mulholland QC was responsible for setting up the Health and Safety Division in the Crown Office and Procurator Fiscal Service, based on his experience as Crown counsel. He personally prosecuted Transco in one of 2005's most high profile health and safety cases.

 According to the Health and Safety Authority there were 15 fatal injuries to workers in Scotland during the reporting year 2010-11, while 38 cases were brought by HSE, local authorities and the Crown Office and Procurator Fiscal Service in Scotland during the same period.