This page looks at the guidance HSE inspectors have been given in relation to the investigation of individuals - with particular reference to directors and managers. It is contained in a document that was published in July 2003 which also gave guidance to HSE inspectors on the prosecution of individuals for health and safety offences. To read about the document, click here.

It should be noted that the HSE already has detailed guidance on the investigation of reported incidents in general. To read about these, click here.

When to investigate the conduct of individuals.
The guidance states that "the role of directors, managers, employees and other individuals should be considered in [HSE] investigations" (para 2).

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How extensive should the investigation be?
A key issue however is how far should inspectors go in investigating their conduct. Para 3 states - rather opaquely - that

"In the early stages of an investigation, if there is no indication that individuals have committed an offence that ought to be prosecuted, then you should decide not to follow that line of enquiry. Even if evidence is obtainable, but you judge that prosecution would not be warranted, resources can be put to better effect elsewhere. However, you need to keep an open mind and review your decisions (with your line manager) in the light of any additional information."

The guidance indicates that all "reasonable lines of enquiry" should be made?

"Our investigations of possible health and safety offences are criminal investigations within the meaning of the Criminal Procedure and Investigations Act 1996 (CPIA) - we investigate to find out whether a person (this includes a company) should be charged with an offence. This applies however the investigation starts. "

It goes onto say that:

"The CPIA requires us to pursue all reasonable lines of inquiry. This does not mean that we must follow every possible line of inquiry to its end. We must make judgments, and these need to take account of the likelihood of a line of inquiry producing sufficient evidence for a prosecution and, even if it did, whether prosecution would accord with the EPS .

The Commission’s EPS says that it is neither possible nor necessary for us to investigate all issues of non-compliance. We need to consider which potential breaches should be pursued, or continue to be pursued, in accordance with the EPS.

Your decisions will depend on the circumstances of the case, the information you have, the objectives of your investigation, the likely benefits from investigating further, the practicalities of continued investigation, the resources that may be needed and the likely outcome.

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General Guidance
This HSE guidance first gives some general guidance that reflects the main HSE guidance on investigation (referred to above)

The initial focus of your investigation should be the ‘event’ itself and not the involvement of any particular dutyholder. Once you have established the immediate circumstances leading to the ‘event’ you should be able to identify potential breaches and further relevant and reasonable lines of inquiry. In doing this you will need to consider the roles and possible criminal liability of all potential dutyholders, including individuals.

You need to consider all the circumstances in which employees act, particularly any responsibilities they have within the management chain, before deciding whether or not to investigate further and/or to take enforcement action under section 7. Generally therefore, your investigation should explore, and (if prosecution is the purpose) collect evidence of, what the employer has done in areas such as training, supervision, risk assessment etc.

It is important that you keep an open mind and respond appropriately to information that comes to light and changes the direction of your investigation, in terms of potential breaches and dutyholders you are considering. Not doing this wastes resources and may result in you not targeting an appropriate dutyholder.

In general, whether continuing to investigate a potential breach is warranted will depend on a number of factors, including the following, which are discussed in the investigation procedure:-

•	The practicalities of collecting sufficient evidence/information to support the objectives of the investigation, including legal proceedings;
•	Even if sufficient evidence of a breach could be obtained, whether it is likely to be in the public interest, and in accordance with the principles of the EPS , to prosecute;
•	Public expectation, for example where there has been a death arising out of a breach of health and safety law;
•	The severity of the hazard and whether it is reasonably foreseeable that a repetition of the circumstances could result in a fatality, serious ill health or serious injury;
•	The prevalence of the event, either within the control of the specific dutyholder or across industry generally.
•	The extent to which resources needed to pursue the investigation are proportionate to the hazard/risk;
•	Whether inadequate resources, or other developing priorities, prevent investigation;
•	The extent of any existing or developing conflict between the investigation and any directorate/divisional priorities;
•	The value to HSE of the information to be collected, e.g. where the investigation objective is to inform research and development;

These considerations should be applied throughout the investigation to review whether the investigation remains in line with the principles of EPS and the objectives of the investigation. Where, at any stage of the investigation, it is decided that further investigation is not appropriate; this should be recorded, with reasons.

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Investigating the conduct of directors and managers
The guidance has a section on investigating section 37 offences.

"Publicly available documents can help your investigation. Bodies corporate may have articles of association or other documents that identify directors, secretaries, managers, etc. These may include a memorandum of association, certificate of incorporation, the articles of association, and the annual return.

As well as public documents, there are internal documents that may help:

You will need evidence of an individual’s actual ‘scope of office’ regardless of whether the person is described as a director, secretary, manager or other officer. Your investigation should explore questions such as:

Reliable documentary evidence can be valuable. Job descriptions, contracts of employment, organisation charts, safety policies, minutes of meetings, purchase orders etc. all provide good evidence, provided the status and meaning of the documentation can be verified by reliable witness evidence from, for example, document users and authors.

A document that assigns duties or responsibility to an individual should not be taken at face value. For example, individuals may be assigned responsibilities by a safety policy that is unreasonable given their competence, support and authority. You should therefore verify the document as a current, established and true working document within the body corporate. We need to protect people from being held to account by policy documents that are not implemented in practice.

A statement from a colleague and/or subordinate giving descriptions of their understanding, experience and knowledge of an individual’s role can be valuable evidence if it relates to the witness’ first hand knowledge, such as actions personally observed, instructions personally issued or received etc. Don’t forget that ‘hearsay’ evidence from a witness of fact will not be admissible. See the Enforcement Guide for information about hearsay evidence.

To be reliable, witness evidence referring to observations and instructions issued and received should be corroborated. A court will be unlikely to convict if the evidence boils down to one person’s word against another. It is also important to consider the credibility of witnesses giving evidence against an individual. A recent case failed because the court considered a key witness to be possibly biased. This was indicated by part of the witness’ evidence being inconsistent over time."

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Consent, connivance or neglect
The guidance has a section on how to investigate whether a person has consented, or connived in an offence or whether the offence is the result of neglect on his or her part.

As well as establishing the ‘status’ of individuals, investigations into possible s37 offences need evidence that the individuals consented to or connived in the offence by the body corporate, or that the offence was attributable to their neglect.

Consent and connivance: The guidance says the following in relation to consent and connivance

The legal meaning of consent and connivance is discussed in Appendix 5. The central point is awareness. Evidence of such ‘awareness’ may come from:

•	confessions
•	documentation such as minutes/notes of meetings,
•	showing that the individual sanctioned particular action, or was present when relevant matters/activities were discussed/agreed;
•	first hand witness evidence observing the individual, for example personally carrying out or observing a particular work activity, or
•	first hand witness evidence of instructions given and received.

Neglect: The guidance says the following in relation to neglect

"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.

Collecting evidence to prove neglect within s37 might involve you exploring:

•	Which director/manager was ultimately responsible for arranging risk assessments?
•	Which director/manager was ultimately responsible for arranging for providing safe systems of work and/or physical safeguards?
•	What was, or what should have been, the director/manager’s knowledge of the work activity in question?
•	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?
•	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?
•	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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Use of powers and the admissibility of confessions
The guidance says the following about the use of HSE inspector powers and the admisibility of confessions:

Where someone is suspected of an offence for which they may be prosecuted they should not be questioned in relation to that offence unless they have been cautioned in accordance with the Police and Criminal Evidence Act 1984 (PACE), or, in Scotland, in accordance with the guidance in the Scotland Enforcement Handbook. Failure to do this could result in the court excluding evidence on which the prosecution rely in legal proceedings. See the Enforcement Guide for guidance on PACE.

If you propose to prosecute an individual they should always be invited to attend an interview under PACE when questions about their involvement in the suspected offence can to be put to them, prior to submitting the prosecution report. At the end of the interview the suspect should be given the opportunity to say anything further and to give any explanation they wish to give in relation to the suspected offence.

Where possible, confession evidence - evidence obtained from the suspect in a PACE interview - should not be relied on as principal evidence. As a general rule, the PACE interview should take place in the final stages of the investigation.

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Applying the EMM

In all cases we should take action that accords with the EPS supported by the framework of the EMM. If prosecution is proposed then an EMM Enforcement Assessment Record Form (EAR) should be completed. Where particular dutyholders and strategic factors in the EMM are not relevant this should be noted on the EAR. The completed EAR should be included in the prosecution report.

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Records

It is important to keep a record of your considerations in relation to individuals - whether we prosecute them or not. The nature and extent of the record depends on the circumstances, but it is particularly important to record our decisions when we investigate deaths and very serious injuries. This is so we can show that due consideration has been given to all relevant dutyholders, and that all reasonable lines of enquiry have been followed to the extent that is necessary and appropriate. It is important that when we’ve considered individuals’ roles during an investigation this is reflected in our reports and records. Where a decision has been made to pursue (or curtail) a line of inquiry this decision, with reasons, should be recorded as soon as possible, for example as a notebook entry, on an investigation log or on a divisional database. The method is for you and your managers to decide.

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