1. There is no Crown exemption from the Health and Safety at Work etc. Act and relevant statutory provisions. However, the Crown cannot be prosecuted for breaches of the law, including failure to comply with improvement and prohibition notices (section 48(1) HSWA). However, there are administrative arrangements in place by which Crown bodies may be censured in respect of offences which would have led to a prosecution (see SIM 7/2001/34).
2. The case should therefore go through the same approval process as detailed elsewhere in this section, including a failure to comply with a Crown notice. If the Approval Officer is satisfied that, but for Crown immunity, there would have been sufficient evidence to provide a realistic prospect of conviction, a censure may be administered. A Crown censure is the way in which HSE formally records the decision 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 securing a conviction.
3. In circumstances where the Approval Officer is satisfied that a Crown censure should be administered, HSE will notify the Crown body in advance, setting out the evidence against that Crown body. The Crown body will then be given the opportunity to provide a written response prior to a formal hearing.
4. HSE will invite the relevant trade union or other safety representative(s) to observe the hearing or make arrangements for the invitation to be extended through the Crown body. No witnesses are called.
5. HSE must consider whether trade union representatives or safety representatives should be excluded where:
6. The meeting will be chaired by a senior HSE inspector. HSE will minute the meeting and produce an agreed note to be copied to trade union and safety representatives, which may be distributed more widely subject to the same considerations as above.
7. If the Crown body agrees with HSE’s view on the sufficiency of evidence, HSE will notify the headquarters of that department or body, which in turn will notify the Minister responsible. HSE will be consulted on the submission to the Minister and the censure becomes a matter of public record.
8. If the Crown body does not accept that there is sufficient evidence, the body will be invited to make further representations to the head of the appropriate HSE directorate or division, who will then review the case.
9. If no representations are received, a censure will be recorded. If, after the review by the head of directorate or division, HSE is still confident that a decision to prosecute would have been justified, the Chief Executive will write to the appropriate Permanent Secretary to seek agreement to the censure.