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The
Investigation of Directors - Cosent/connivance/Neglect
In
relation to consent and connivance, Appendix 4 of
the guidance states that:
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The
legal meaning of consent and connivance is discussed
in Appendix 5. The central point is awareness.
Evidence of such ‘awareness’ may come
from:
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confessions, |
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documentation such as minutes/notes of meetings, |
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showing
that the individual sanctioned particular
action, or was present when relevant matters/activities
were discussed/agreed; |
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first
hand witness evidence observing the individual,
for example personally carrying out or observing
a particular work activity, or |
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first
hand witness evidence of instructions given
and received. |
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In
relation to Neglect, Appendix 4 of the guidance states
that:
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To prove neglect, we have to prove that the accused
has failed to take some steps to prevent the commission
of an offence and that the taking of those steps
either expressly falls, or should be held to fall
within the scope of the functions of the office
which he holds. A court would need to consider
this in light of the whole circumstances of the
case including the accused’s state of knowledge
of the need for action, or the existence of a
state of fact requiring action to be taken of
which he ought to have been aware. |
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You therefore need to establish whether:
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the
particular matters under investigation are
within the true ‘scope of office’
of the suspect. This goes beyond the questions
explored to satisfy that the person comes
within the scope of s37, including the Boal
tests. (See legal commentary on s37 in Appendix
5). The role of a managing director, for
example, is not predetermined by his title
and he/she is entitled to delegate responsibility,
and to make a reasonable assumption that
what another officer of the company tells
him/her is accurate, without checking that
it is in fact accurate; |
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the suspect was aware, or should have been
aware, of the risk and the need for action |
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the offence was directly attributable to
the particular steps that the suspect failed
to take. |
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In
addition to the scope of office and the knowledge/awareness
of the individual, you should also explore the
risk gap (as set out in the EMM) existing at the
time of the alleged offence and how far the individual
personally fell short of what was expected of
him in relation to this gap. For example, a complete
or near complete absence of safe systems or physical
safeguards in relation to a risk of serious personal
injury that should be obvious to any reasonable
person with the knowledge and skills of the individual
concerned would normally trigger concerns about
neglect. |
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Collecting
evidence to prove neglect within s37 might involve
you exploring:
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Which
director/manager was ultimately responsible
for arranging risk assessments? |
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Which
director/manager was ultimately responsible
for arranging for providing safe systems
of work and/or physical safeguards? |
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What
was, or what should have been, the director/manager’s
knowledge of the work activity in question?
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Was
the director/manager, or should he/she have
been, aware of the risk? Any advice and
warnings (that can be proved) from HSE or
others? |
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Were
there steps that the director/manager could
have taken to avoid the offence by the body
corporate that were, or should have been,
obvious to a person in his/her position?
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If the director/manager did take some steps
to avoid the commission of the offence,
how far did these steps fall short of what
was expected? |
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