Excerpt on HSC Enforcement Statement from CCA Supplementary Memorandum to Oral Evidence given by the CCA to the Select Committee

4. Breach of HSC Enforcement Code and Code of Crown Prosecutors
Following on from our evidence, we thought that it was necessary to clarify why we believe that the HSE is currently in breach of its own enforcement code as well as the Code of Crown Prosecutors.

HSE's own code: In paragraph 19 of HSE code, a number of criteria are set out where the Commission expects that the enforcing authorities will consider prosecution:

This includes, in the second paragraph, a situation where "there is judged to have been potential for considerable harm arising from breach" (emphasis added).

If "considerable harm" - and this must surely include major injuries or deaths - has actually taken place, in a situation, where a breach of health and safety law has occurred, then HSE's own policy statement asserts that a prosecution is expected.

Yet the reality is that the HSE only prosecutes after 10% of major injuries and 20% of deaths. This clearly indicates a breach of own policy (see Paragraph 22 and 33 of Select Committee evidence).

It could also be argued that HSE's decision not to investigate 89% of major injuries also implies a breach of its policy. If it does not investigate - when an injury has been reported to it - then it is not applying its own policy which places emphasise on issue of "considerable harm".

HSE's own policy also states that "enforcing authorities should identify and prosecute or recommend prosecution of individuals, including company directors and managers if they consider that a convictions is warranted and can be secured".

It is inconceivable that the HSE has found no evidence of "consent, connivance or any neglect" against any director or manager in relation to over 47,000 major injuries and 500 deaths between 1996-8.

CPS codes: The HSE states in its enforcement policy, at the end of paragraph 19 that "the decision to prosecute must also take account of the criteria set down in the Code for Crown Prosecutors."

This sets a two tier test. (1) sufficiency of evidence and (2) public interest.
So whenever there is sufficiency of evidence, the HSE has to look to see whether there are public interest reasons not to prosecute. Paragraph 6.2 of Code states: "In cases of any seriousness, a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending to in favour"

It is difficult to see what could be the reason to justify non-prosecution on public interest factors - in relation to death and injury cases - where there is sufficient evidence.

In fact section 6.5(c) under the title, "some common public interest factors against prosecution" states that a prosecution is less likely to be needed if "the loss or harm can be described as minor". This implies that in relation to major injury or death, prosecution should take place.

Therefore when there is a major injury or death and sufficient evidence exists, and the HSE does not prosecute, this is a breach of the code. This is of course particularly serious in relation to directors and managers, where it is inconceivable that not enough evidence existed against any director/manager in relation to the deaths and injuries between 1996-8.

It appears that the statistics show that the HSE has a "resource-based" prosecution policy rather than an "evidence-based" policy - which is what their own policies imply.


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