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Crown
Bodies can not be prosecuted under health and safety
law - though individual ministers snd civil servants
can be
This
page deals with how the HSE deals with offences committed
by Crown Bodies and their employees. To read more
generally about how HSE deals with crown bodies, click
here.
In
relation to employers who are crown bodies, the HSE
have developed a procedure to deal with those situations
where a Crown body would in ordinary circumstances
have been prosecuted. It is called a Crown Censure.
It has the following characteristics
| • |
It
is not a trial. |
| • |
No
witnesses are called. |
| • |
Members
of the public can not attend them. |
| • |
It
is not chaired by a judge but a Senior HSE inspector.
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| • |
The
aim of the hearing is to to "seek acknowledgment
of the problem and to obtain an undertaking to
improve standards of health and safety."
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The
procedure is set out in a Cabinet Office "Personnel
Information Note" setting, dated 13 June 2001.
This states:
| Para.
14 |
A
"Crown censure" is the term given to
the formal recording of a decision by HSE that,
but for Crown immunity, the evidence of a Crown
body’s failure to comply with health and
safety law would have been sufficient to provide
a realistic prospect of conviction in the courts
(in line with the Code of Crown Prosecutors).
Circumstances that could lead to a censure would
include a failure to comply with a Crown enforcement
notice in the time allowed. ..... |
| Para.
15 |
Where
HSE considers that a failure to comply with health
and safety law would normally justify prosecution,
HSE will first notify the Crown body concerned
at a senior level that it intends to begin the
censure procedure. The HSE investigating inspector
will then initiate a formal meeting (‘hearing’)
between a senior HSE inspector and a member of
the senior management of the Crown body involved
by writing to the Crown body ... |
| Para.
16 |
Although
a censure is not in any sense a trial, HSE will
give the Crown body advance information setting
out its ‘case’ in the same way as to
a non-Crown body which was to be prosecuted in
a magistrates’ court. The Crown body has
the opportunity to provide a written response
in advance of the hearing though HSE will not
enter into any further correspondence prior to
the hearing. No witnesses are called. |
| Para.
17 |
HSE
is responsible for inviting the relevant trade
union or other safety representative(s) to observe
the hearing, and will either do so direct or agree
that the Crown body concerned should extend the
invitation. In situations where public discussion
of any aspects of an incident or possible breach
of health and safety law would harm national security
or defence, or refer to information that relates
specifically to an individual (unless that individual
has explicitly consented to such information being
disclosed), or relate to any other circumstances
where there is a prohibition on the disclosure
of information under any enactment, rule of law
or non-statutory code, consideration must be given
to excluding trade union or other safety representatives
from that part of the hearing. Subject to these
same provisions, when HSE provides the Crown body,
at the hearing, with further information designed
to clarify proceedings, such as diagrams or photographs,
a copy of the information will also be given to
observers. |
| Para.
18 |
No
persons other than officials and trade union or
other safety representatives may be allowed to
attend a censure hearing except at the discretion
of the Crown body: every effort is made during
a hearing to ensure fair consideration of the
matters at issue, but it is not possible for a
censure hearing to have all the checks and balances
of a court and wider public attendance is not
generally appropriate. Under section 28 of the
HSW Act inspectors may, depending on the facts
of a particular case, release information to advise
the public of risks and to reassure them about
health and safety measures. |
| Para.
19 |
The
hearing will be chaired by a senior HSE inspector.
HSE will minute the meeting and, on its completion,
produce an agreed note of the meeting that will
be copied to the relevant trade union or other
safety representatives. The agreed minute can
be distributed more widely subject to the restrictions
on the disclosure of information (paras 14 and
17 above). |
| Para.
20 |
The
aim of the hearing is to seek acknowledgment of
the problem and to obtain an undertaking to improve
standards of health and safety. The hearing is
therefore commenced by the HSE investigating inspector
explaining the circumstances of the case and why
it would justify prosecution, but for Crown immunity.
The Crown body is then given the opportunity to
make any representations or arguments in defence
or mitigation. |
| Para.
21 |
If
in the course of the formal hearing the Crown
body agrees with HSE’s view that the evidence
would be sufficient to provide a realistic prospect
of conviction in the courts, HSE will notify the
headquarters of the Department. The Department
will subsequently advise the relevant Minister
having first consulted HSE on their submission,
and copying to HSE their final submission. The
fact that a censure has taken place becomes a
matter of public record, through listing in a
HSE annual report supplement (paragraph 14 above) |
| Para.
22 |
If,
after considering the HSE inspector’s response
to any representations, the Crown body’s
officials do not accept there is sufficient evidence
to have provided a realistic prospect of conviction,
HSE will invite them to make further representations
to the head of the appropriate HSE operating directorate
or division who will review the case. This is
in accordance with the HSE Service First commitments.
If the Crown body decides not to make such representations,
HSE will record the censure without further discussion. |
| Para.
23 |
Where,
despite representations, HSE remains confident
that a decision to prosecute would have been justified,
HSE’s Director General will write as appropriate
to the Permanent Secretary responsible for the
Crown body to seek agreement to recording the
censure. |
You
can download the whole Cabinet office memo by clicking
here (Word Doc)
In
addition, HSE's Enforcement Guide states that prior
to the process of crown censure, the case should go
through the same 'approval' process (click
here to read about this) as with any other decision
to prosecute.
The
HSC have produced a 'Sector Information Minute (SIM
7/2002/34). This simply informs the inspector of the
the Cabinet Office memo - but for completeness, it
is set out below.
"To:
All HSE Inspectors
This SIM informs inspectors about the issue of a
Personnel Information Note (PIN) by the Cabinet
Office dealing with enforcement procedures for Crown
bodies, including Crown censures. A copy of the
PIN is given at the appendix.
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Background
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| 1 |
Although
the provisions of the Health and Safety at Work
etc Act 1974 (HSW Act) apply to the Crown, including
departments and agencies, Crown bodies are immune
from statutory enforcement of health and safety
legislation by virtue of HSW Act s.48(1). |
| 2 |
Whilst
proceedings may not be taken against the Crown,
administrative procedures known as Crown censures
have been developed for use in circumstances where
it is HSEâs opinion that, but for Crown
immunity, there would have been sufficient evidence
to provide a realistic prospect of conviction
in the courts. |
| 3 |
Since
1988, there have been 25 Crown censures, but the
absence of an agreed, documented procedure has
led to some difficulties in recent years. Accordingly,
following extensive consultation with HSE, Crown
employers and the Council of Civil Service Unions,
the Cabinet Office issued a Personnel Information
Note setting out an agreed procedure on 13 June
2001 (see appendix). The appendix does not include
annexes A-C containing the Health and Safety Commission's
Enforcement Policy Statement and Crown enforcement
notices. |
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Crown
Censure Procedure
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| 4 |
Inspectors
who are familiar with the existing censure procedure
will note the following changes introduced in
the PIN:
| 1 |
Paragraph
17 - HSE is responsible for inviting the
relevant trade union or other safety representative(s)
to observe the hearing, and will either
do so directly or agree that the Crown body
concerned should extend the invitation;
and |
| 2 |
Paragraph
22 - If, after considering the HSE inspector's
response to any representations, the Crown
body's officials do not accept there is
sufficient evidence to have provided a realistic
prospect of conviction, HSE will invite
them to make further representations to
the head of the appropriate HSE operating
directorate or division, who will review
the case. If the Crown body decides not
to make such representations, HSE will record
the censure without further discussion. |
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| 5 |
Inspectors
will be aware that HSE's report Health and Safety
Offences and Penalties included a list of Crown
bodies which had been censured during the year
1999/2000, and similar information was published
on HSE's Internet website. |
Date
first issued: 10 July 2001"
Position
of Individual Managers and other employees
Individuals who work for crown bodies do not have
Crown Immunity. However the Cabinet Office procedures
impose serious obstacles to the possibility of prosecution.
This is because, apparently, the HSE gave assurances
in 1975 that individual would only be prosecuted where
there was "wilful or reckless disregard"
of health and safety.
| Para
24 |
Under
Section 48(2) of the HSW Act, persons in the service
of the Crown may be prosecuted for health and
safety offences, and, if convicted, fined, or
for certain offences imprisoned. Managers, as
well as other employees who are personally culpable,
should not escape prosecution simply because they
are Crown servants. However, the HSE gave assurances
in 1975 that an individual Crown servant would
be prosecuted only in the same circumstances as
an individual in non-Crown employment, for example
where there was wilful or reckless disregard of
health and safety requirements. There is no question
of individuals being prosecuted in substitution
for the Crown body, or for honest mistakes, or
because of defects in management organisation.
It is therefore highly unlikely that civil servants
would be prosecuted except, for example, through
a deliberate act or omission by them which imperiled
their own safety, or the safety of others. |
However
the HSE insist that this is not an accurate reflect
of how the HSE acts and it treats crown servants in
the same way as individuals in other organisations.
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