Approval of a proposed prosecution

• Responsibilities of the Approval Officer
• Assistance for the Approval Officer
• General principles for enforcement decisions
• Independent review
• The approval process

Responsibilities of the Approval Officer

1. The responsibility for laying an information rests with the individual inspector. The function of deciding whether to commence a prosecution on behalf of HSE, which involves assessing and approving cases for prosecution, is undertaken by the Approval Officer. Approval Officers are responsible for ensuring that the prosecution papers meet the standards expected of HM Inspectors. However, before they can approve a prosecution, they must apply the [Code for Crown Prosecutors ¹] and HSE’s Enforcement Policy Statement (EPS).

2. In accordance with the Code for Crown Prosecutors, the Approval Officer must apply the Full Code Test, which consists of two stages:

• The Evidential Stage (see Approving Prosecutions/Evidential Stage)
• The Public Interest Stage (see Approving Prosecutions/Public Interest Stage)

3. The Code also includes a third test, called the Threshold Test. This is used for decisions where a suspect needs to be kept in custody, but where there is not sufficient evidence to meet the first stage of the Full Code Test. This test will not apply to HSE.

4. A system of Independent Legal Oversight (ILO) is in place to deal with the most serious, complex and sensitive casework. In cases that meet the criteria for ILO, a lawyer from Legal Adviser’s Office will take over the role of prosecutor from the Approval Officer. The criteria for using ILO is detailed in OC168/11.

5. For the purposes of the Code, the Approval Officer fulfils the role of “prosecutor”, unless the case is subject to ILO.

6. Approval Officers do not work in isolation. The investigating inspector may have involved others within HSE during the investigation, and the Approval Officer should feel free to seek technical or legal advice if required.

7. In most cases, the Approval Officer is a Principal Inspector. However, in sensitive and high profile investigations and prosecutions that are likely to involve significant business risk to HSE or have an important external impact, the Approval Officer should consider notifying senior managers of the circumstances of the case before making any prosecution decision; a more senior officer may decide to take on the role of Approval Officer instead ².

8. As the person responsible for making the prosecution decision, it will be appropriate in most cases for the Approval Officer to read all the evidential material placed before him/her. In the largest and most complex cases, notably those in which a senior officer takes on the role of Approving Officer (see above), the Approval Officer may require assistance in analysing the evidence.

9. In such cases, the Approval Officer should be supplied with the following ³:

• A detailed analysis of the evidence, drawing attention to the key issues upon which the decision may depend. The analysis should include a summary of the case together with a considered view on evidential sufficiency;
• The essential evidence in the case upon which the analysis is based. This will include the evidence that substantiates the view that there is a realistic prospect of conviction, and information relating to the public interest factors, such as any views expressed by the victim(s) or bereaved, how far below the relevant standard the dutyholder fell, and the dutyholder’s attitude and/or financial means;
• Any other supplementary information and/or evidence that might assist the Approval Officer, particularly any material that might undermine a prosecution and/or assist the defence; and
• Where appropriate, a careful consideration of the public interest factors involved, with direct reference to the EPS and Code for Crown Prosecutors. There should also be a statement that the conclusion was reached in accordance with the EPS and Code.

10. In addition, the whole prosecution file should be made available to the Approval Officer.

General principles for enforcement decisions

11. The process of making enforcement decisions is complex. Each duty holder and situation is unique, and it is vital that inspectors have wide discretion to exercise their professional judgement, so that appropriate action can be taken.

12. Enforcement decisions must be impartial, justified and procedurally correct. The EPS sets out the approach which health and safety enforcing authorities should follow ⁴. Enforcement action must also be taken in accordance with the aims of the Government’s Enforcement Concordat ‘Principles of Good Enforcement’.

13. The Enforcement Management Model (EMM) provides HSE with a framework for making enforcement decisions that meet the EPS principles of proportionality, consistency, targeting, transparency and accountability. It captures the issues inspectors consider when exercising their professional judgment, and reflects the process by which enforcement decisions are reached.

14. The Enforcement Policy Statement and the Code for Crown Prosecutors have been published, so that the principles which HSE will apply when deciding whether to prosecute are clear. The information contained in these documents is therefore important to inspectors, other criminal justice agencies, dutyholders, the general public, and victims of incidents arising from work activities. Whilst they are public documents, any documents generated as part of, or to assist, the approval process may be legally privileged. For guidance on privileged material, see the section ‘Preparing the schedules’ in either Disclosure of Unused Material for Investigations Commenced before 4 April 2005 or Disclosure of Unused Material for Investigations Commenced on or after 4 April 2005, as appropriate.

15. The Approval Officer will be assisted by the guidance obtained from the EMM, but each case is unique and must be considered on its own merits. There will be different factors to be taken into account in each approval decision.

Independent review

16. Approval Officers must be fair and sufficiently independent of the investigation to review the case objectively ⁵ . The Code for Crown Prosecutors states that Crown Prosecutors must be fair, independent and objective. Casework decisions taken fairly, impartially and with integrity help to secure justice for victims, witnesses, defendants and the public. Prosecutors must ensure that the law is properly applied, that all relevant evidence is put before the court and that obligations of disclosure are complied with in accordance with the Code ⁶.

17. The Approval Officer should not therefore be closely involved in directing, or identified with, the investigation process. This is fundamental to ensure the fairness, efficiency and accountability of the prosecution process.

18. If an Approval Officer is concerned about his/her objectivity to provide an independent oversight of the investigation, they should consider referring the case to their line manager for consideration.

The approval process

19. In considering a case, the Approval Officer should ensure that:

• the law has been properly applied;
• all relevant evidence is available in an admissible form;
• the Inspector has identified any material that might undermine the prosecution case or assist the defence; and
• HSE has acted in compliance with the Human Rights Act 1998. You should refer to the later ‘Recording Reasons’ section for further information.

20. As part of the approval process, the Approval Officer will consider whether the correct legal entity has been identified as the subject of the proposed prosecution ⁶ (see the section Identifying the Defendant).

21. In accordance with the EPS, HSE should prosecute individuals if it is considered that a prosecution is warranted. Approval Officers will therefore need to be informed of any evidence of breaches by, for example, directors, managers or employees. For guidance on the prosecution of individuals, see the section Identifying the Defendant – Prosecution of Individuals.

22. The duties on HSE do not end with the decision of the Approval Officer. There is a continuing duty to keep the case under review. You may, for example, need to review the case again if there is a change in circumstances during the proceedings. If so, you may need to notify your advocate.

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Footnotes

1. Code for Crown Prosecutors
2. See OC 168/14 on Notification of prosecution cases, which gives guidance to Approval Officers on when they should consider notifying more senior operational line managers.
3. Following the Glidewell Report on CPS decision-making, in February 2003 the Attorney General, in a written answer to a parliamentary question, stated: ‘With effect from today there will be a new approach to decision-making to assist the most senior and experienced lawyers in the CPS to make decisions in the most complex and serious cases. In future, where the case papers are particularly voluminous, the decision-maker may be assisted by another experienced lawyer, who will provide the decision-maker with a detailed analysis of the case, drawing attention to the key issues on which the decision must depend. The decision-maker may rely on this analysis, together with the essential evidence in the case papers and supplemented by other such evidence as the decision-maker chooses to consider, in applying the tests set out in the Code for Crown Prosecutors and making his decision.’
4. A case may be stayed (halted) by the court as oppressive if the circumstances which gave rise to it did not meet the criteria for prosecution in the prosecuting authority’s policy document: R v Glen Adaway [2004] EWCA Crim 2831.
5. OC 168/9 Assuring The Independence Of Prosecution Decisions.
6. In R (on the application of Patricia Armani Da Silva) v Director of Public Prosecutions and the Independent Police Complaints Commission [2006] EWHC 3204 (Admin), DC, the court held that the decision of the DPP as to whether or not to prosecute would be lawful if it was taken in accordance with the Code for Crown Prosecutors, which included both evidential and public interest considerations, and it was a decision reasonably open to the decision-maker on the material before him/her.