00.01 am, Tuesday 19th August 2003
Individuals should be prosecuted in limited
circumstances says new HSE
HSE inspectors have been told that the prosecution
of directors, managers and other individuals should
in general take place in limited circumstances.
This direction comes in detailed HSE guidance provided
to its inspectors concerned with the investigation
and prosecution of health and safety offences by individuals.
it is an 'open document' and was provided to the
CCA by the HSE on request, it is not yet available
on HSE's website and the HSE did not make public
the fact that it had created this new guidance.
This is the only website that you can obtain a
copy of it (see below).
guidance - which came into effect on 1 July 2003 -
says that prosecution is in general warranted where
the individuals have shown:
or reckless disregard for health and safety requirements,
or there has been a deliberate act or omission that
seriously imperilled their health/safety or the
health/safety of others."
see full para, click here.
none of the key offences involving individuasl actually
require evidence of "wilfulness", "recklessness",
or "deliberation". The key offence for which
a director or senior manager can be prosecuted (section
37 of the Health and safety at Work Act 1974 - to
see this click here) requires instead
only evidence of 'neglect' or in the alternative evidence
that the director or senior manager was aware that
the company was commiting an offence and simply turned
a blind eye ('connivance').
HSE justifies this approach by saying that companies
only operate through the actions of their employees,
directors and managers so that when a company commits
an offence it is likely that there will be some personal
failure by these individuals.
John Halford, a solicitor specialising in public law
at Bindman and Partners, who was provided a copy of
the guidance by the CCA said:
is a very real risk that the guidance will create
a minefield of uncertainty for HSE investigators
and prosecutors. For instance, whilst it indicates
that prosecution will normally be appropriate where
there is "wilful" or "reckless"
disregard of health and safety law or a "deliberate
act or omission" with potentially serious consequences,
these critical terms are not defined and can be
interpreted in a number of different ways."
HSE guidance also appears to contradict the Code for
Crown Prosecutors (published by the Crown prosecution
Service) to which the HSE states that it adheres.
CPS Code for Crown Prosecutors states that there are
two questions that must be considered sequentially:
first, is there sufficient evidence to provide a realistic
prospect of conviction; and secondly, and only if
the answer to the first question is 'yes', is it in
the 'public interest' to prosecute.
6.2 of the CPS code states that:
prosecution will usually take place unless
there are public interest factors tending against
prosecution which clearly outweigh those tending
in favour." (emphasis added)
CPS Code can be downloaded by clicking
HSE Guidance however indicates that a prosecution
should only take place if there are public interest
factors that justify prosecution - reversing
the normal presumption that prosecution will follow
once sufficient evidence has been gathered. It is
not clear why the HSE has decided to apply the 'public
interest test' in this manner.
relation to this, John Halford from Bindman and Partners
HSE inspectors are instructed to take into account
and apply the Code for all Crown Prosecutors, that
Code cannot easily be reconciled with the HSE guidance.
The Code creates a presumption that prosecution
will follow where there is sufficient evidence which
shows an offence has been committed: and that only
if the public interest is against prosecution will
a decision then be made not to take action. However,
the HSE guidance indicates that lines of enquiry
about actions and failures by individuals might
not even be pursued if an inspector considers that
prosecution may not ultimately be in the public
interest. This puts the cart before the horse, muddling
what should be a clear, two-stage decision making
CCA will be writing to the HSE to raise these issues.
David Bergman Director of the CCA stated:
case-work the CCA has undertaken through its Work-Related
Death Advice Service has indicated a lack of guidance
given to HSE inspectors on the investigation and
prosecution of individuals - particularly directors
and senior managers. So we are pleased that the
HSE has published this guidance. However, there
are some concerns about particular sections of the
guidance that we will raise with the HSE - which
centre on advice given to us by Bindman Solicitors
- and we hope that the HSE will consider them seriously."
by the CCA shows that between April 1999 and January
2003 only fifteen company directors or senior managers
have been convicted of health and safety offences.
In the ame period over 2600 companies were convicted.
To see details of this click here.
prosecution of Gerald Corbett (Former Chief Executive
of Railtrack plc) in relation to the Hatfield disaster
is the first time the HSE has ever prosecuted a director
of a large company. For more details on this prosecution,
HSEs 16 page guidance called "Prosecuting
Individuals" (ref: OC 130/8) is summarised in
a CCA briefing paper. To see this
obtain more information contact:
for Corporate Accountability
Halford, Bindman and Partners
general, prosecuting individual will be warranted
where there are substantial failing by them,
such as where they have shown wilful or reckless
disregard for health and safety requirements,
or there has been a deliberate act or omission
that seriously imperilled their health/safety
or the health/safety of others.
A body corporate operates only by and through
the actions of its employees and officers (including
directors and managers). If a body corporate
commits an offence then there is likely also
to be some personal failures by directors, managers
or employees. This does not mean we always prosecute
individuals. The CPS Code for Crown Prosecutors,
like the Commissions policy, makes clear
that not all offences should be prosecuted.
The public interest test, as well as to the
evidential test, should be considered.
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Section 37 states:
an offence under any of the relevant statutory
provisions committed by a body corporate is
proved to have been committed with the consent
or connivance of, or to have been attributable
to any neglect on the part of, any director,
manager, secretary or other similar officer
of the body corporate or a person who was purporting
to act in any such capacity, he as well as the
body corporate shall be guilty of that offence
and shall be liable to be proceeded against
and punished accordingly.
the affairs of a body corporate are managed
by its members, the preceding subsection shall
apply in relation to the acts and defaults of
a member in connection with his functions of
management as if he were a director of the body
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