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Although HSC's proposed Enforcement Policy Statement is an improvement upon the current policy, it is still inadequate and requires significant improvement. The main failures of the current statement are:

Powers of Enforcing Authorities

• It fails to distinguish between those powers which are concerned with the prevention of harm (oral/written advice, improvement and prohibition notices), from those concerned with the accountability of companies that have committed a criminal offence (written warnings, formal cautions or prosecution). This is in contrast to the enforcement statement of the Environment Agency.

See Paras 2.1 - 2.11

Prevention and Accountability

• It fails to state that enforcing authorities should concern themselves with both prevention and accountability. When an inspector undertakes an inspection of a company or an investigation of an injury, the inspector should consider both:
  
  
  • which of its preventative powers should be used to prevent harm from taking place or prevent it from re-occurring and;
    
    
  • if, in addition, a criminal offence has been committed, what action should be taken in relation to the offence.
    
    

  This is in contrast to the enforcement statement of the Environment Agency.

See Paras 3.1 - 3.6

Resource Based Preventative and Prosecution Policy

• It fails to state that financial budgeting of enforcing authorities should have no bearing upon the decisions made by the enforcing authorities in relation to:
  
  
  • which of their preventative powers are used in any particular situation
    
    
  • in relation to the commission of a criminal offence, whether they prosecute or issue a formal caution or written warning.
    
    

  See Paras 1.4 - 1.8

Use of Preventative Powers

• It fails to lay out the criteria that should guide inspectors in its use of its preventative powers. This allows inspectors far too much discretion in determining whether they should use their informal powers (i.e. oral or written advice) rather than their formal powers (i.e. improvement or prohibition notices).

See Paras 4.1 - 4.6

Response to a Criminal Offence

• It fails to set out those circumstances where formal cautions and written warnings should be issued, rather than undertaking a prosecution.

See Paras 5.29 to 5.32

• It fails to state clearly what is the purpose of prosecution. The policy should state that:

  "Prosecution aims to punish wrongdoing, to bring to account those who have committed a criminal offence and to act as a deterrent to the offender as well as to others that may offend."

See Paras 5.2 - 5.25

• It fails to state clearly those circumstances which should result in a prosecution. In particular, it fails to state that a prosecution should be expected where a criminal offence has been committed that has resulted in death or major injury.

See Paras 5.8 -5.28

Investigation

• It fails to explain clearly the purpose of Investigation. It should state that:

  "The purpose of an investigation into a death, injury or dangerous occurrence which has been reported to the authorities, is to

  • determine the cause of the incident;
    
    
  • determine whether action needs to be taken to remedy the situation and, if an injury has taken place, to make sure it does not recur;
    
    

  determine whether a criminal offence has been committed and whether a warning, caution or prosecution should be issued or undertaken;"

See Paras: 9 - 9.4

• It fails to have clear criteria to determine which reported incidents should be investigated

See Paras: 11.1 - 11.18

Sentencing

• It fails to set our clearly the criteria to determine when enforcing authorities should press for cases to be referred to the Crown court for trial or sentencing.

See Paras: 6.1 - 6.6

Transparency

• It fails to ensure that the decisions made by the enforcing authorities are made "transparent" to workers and others affected the decisions of the enforcing authorities.

See Paras: 8.2 - 8.6

Informing Company Directors

• It fails to ensure that the enforcing authorities inform company directors of the enforcement action taken by the enforcing authorities in relation to their company.

See Paras: 7.1 - 7.3