Perfiles

Following the presentation there was a panelled debate on the proposed IOSH Code with members of the PEC. The focus of this debate was on legal issues contained in the new IOSH Code. There was particular disquiet about a requirement to notify IOSH of any criminal conviction. Several people expressed the view that this would lead to several thousand parking tickets becoming disciplinary matters each year. On reflection this argument did not take into account that the current IOSH Code point 18 says a relevant conviction ‘may’ (rather than ‘shall’) lead to disciplinary proceedings. There was one suggestion whether to notify IOSH should be a matter for the discretion of the individual member convicted. The PEC did not consider this approach suitable. A member could decide not to inform IOSH because they think the conviction resulted from either the wrong decision or a harsh prosecution. This would be a decision for the relevant IOSH Committee, not the individual and decisions would be made on a case-by-case basis.

In reviewing other professional bodies’ approaches to criminal convictions during the benchmarking, IOSH was not unique in requiring any conviction to be notified. The undertaking on admission to any class of RICS membership includes an undertaking to declare any criminal convictions within 30 days.

The key issue emerging out of the IOSH Council debate was whether a blanket requirement to notify criminal convictions was necessary if developed guidance is likely to point towards no further (formal) action for some relatively minor offences. It was not always easy to tell from the information on a certificate of conviction whether the member could have been sentenced to a term of imprisonment. In a case, heard by the IOSH Disciplinary Committee in May 2010, the certificate of conviction showed a guilty plea to four offences, which were all stated without reference to any legislation.

The problem with the ‘conduct unbefitting’ charge was that legal representatives for members charged would submit that this charge implied disgraceful or infamous Conduct. Thus they would further submit that burden on IOSH was to demonstrate higher culpability than usual such as bad faith or gross negligence. To establish that the Institution was brought into disrepute required evidence that the membership relationship was reported as well as the conviction.

In the disciplinary regulations of the Association of Accounting Technicians (AAT), all members are required to inform it if they have pleaded guilty to or been found guilty of an indictable offence. This term would pick up ‘indictable only offences’, which must be heard in the Crown Court, such as murder and rape. It would also pick up offences ‘triable either way’, which can be heard in either the Magistrates’ Court or the Crown Court. It would not, however, pick up ‘summary offences’, which generally may only be dealt with in the Magistrates’ Court. The AAT approach is not really suitable for IOSH as some offences under the Health and Safety at Work etc Act 1974 are summary offences. For instance intentionally obstructing an inspector contrary to Section 33 (1) (h) is a summary offence and so is impersonating an inspector contrary to section 33 (1) (n). Magistrates may send a person to prison for obstructing an inspector but not for impersonating one. It is difficult to understand

why falsely pretending to be an inspector, which must involve dishonesty, is not punishable by imprisonment.

There are other examples of summary offences that appear to involve dishonesty. Supplying false information either on an electoral registration form or on a postal/proxy application form is a summary offence contrary to Section 13D of the Representation of the People Act 1983.

The AAT approach is interesting because there are summary offences with a maximum penalty of six months’ imprisonment and / or a £5,000 fine. (It may also be the case that when certain sections of the Criminal Justice Act 2003 come into force the maximum penalty for some summary offences will be 12 months’ imprisonment.)

The recommendation to the PEC was that members should be required to notify IOSH if they have been convicted in Court (whether they were present or not) of a criminal offence. This would mean that pleading guilty to speeding by post would not be covered. There is an argument that such a process is not a conviction anyway because it is accepting a fixed penalty notice (FPN) where the effect of acceptance is to discharge any liability to criminal conviction. Speeding is criminal but in the opinion of some accepting a FPN will not result in a criminal record because it is not entered on the Police National Computer (PNC). Unfortunately what constitutes a criminal record is open to debate and conjecture.

It should not necessarily be the case that a conviction that a member is required to notify IOSH of will lead to disciplinary proceedings. For example if a member does not accept a FPN for doing 36 mph in a 30 zone and is found guilty in Court, then, in the absence of any media focus on IOSH, charging a breach of the IOSH Code may be considered too severe.

7.3.3 Sanction(s) for some convictions with publication of members’ names