Embargoed: 00.01 am, Tuesday 19th August 2003

Individuals should be prosecuted in limited circumstances says new HSE Guidance

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.

The guidance - which came into effect on 1 July 2003 - says that prosecution is in general warranted where the individuals 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."

To see full para, click here.

However, 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').

The 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.

However, John Halford, a solicitor specialising in public law at Bindman and Partners, who was provided a copy of the guidance by the CCA said:

"There 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."

The 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.

The 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.

Para 6.2 of the CPS code states that:

"A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour." (emphasis added)

The CPS Code can be downloaded by clicking here (PDF)

The 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.

In relation to this, John Halford from Bindman and Partners said:

"Although 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 process. "

The CCA will be writing to the HSE to raise these issues. David Bergman Director of the CCA stated:

The 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."

Research 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.

The 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, click here.

The HSE’s 16 page guidance called "Prosecuting Individuals" (ref: OC 130/8) is summarised in a CCA briefing paper. To see this click here.

To obtain more information contact:

HSE Guidance: Extract

9

"In 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.

10

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 Commission’s 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
Section 37 states:

(1)

Where 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.

(2)

Where 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 corporate.

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