1. When proceeding against a school as an employer, you need to find out what kind of school you are dealing with. The classification of schools and the status of Local Education Authorities relating to them has been recast by the School Standards and Framework Act 1998.
2. The Local Authority is the employer, and therefore prosepective defendant, in all community and voluntary controlled schools.
3. In foundation and voluntary aided schools the governing body is the employer, except in instances where the Local Authority employs particular members of staff directly.
4. In independent schools, which now include city technology colleges, city colleges for the technology of the arts, and city academies 1, the employer may be a trust, the governors or governing body, or a private proprietor. You should seek advice, through your line management to the legal liaison points or relevant Sector, in the event that this is unclear.
5. Offences under section 4, HSWA, are committed by persons having control of premises. In state maintained schools, while the Local Authority has primary responsibility, the governing body may also have some degree of control, and there may be overlapping responsibilities. The situation in independent schools will vary. In all cases, the offence must be considered in relation to its own particular circumstances, in order to determine who is the appropriate defendant. You should seek advice through your line management to the legal liaison points or contact the relevant Sector if there is any difficulty in determining responsibility.
6. An Unincorporated Association is an association or a body of persons that is not a corporation. An example is a sports or social club where the members contribute funds out of which the club expenses are paid. An unincorporated association has no legal personality at common law and therefore could not incur criminal liability, though its individual members could. However, the Interpretation Act 1978, SS. 5 and 11 and schedule 1, defines the word "person" in any Act or subordinate legislation to include, unless the contrary intention appears, "a body of persons corporate or incorporate". This provision applies, as far as unincorporated bodies are concerned, to Acts whenever passed and regulations subordinate to such Acts made since 1889. Unincorporated associations are therefore "persons" and liable to be convicted of any offence where the definition uses the word person. This would include section 4, HSWA.
7. Unincorporated bodies may be employers, and as such would be liable for offences that use the definition 'employer'. Their employees and others can be liable under HSWA SS. 7,8 and 36.
8. When prosecuting an unincorporated body, you should generally prosecute in the name of the association. It also may be appropriate, depending on the facts of the case, to consider prosecution of an individual member under section 36 HSWA. S.37(2) is not available in the case of unincorporated bodies.
9. Trusts should be prosecuted in the names of the trustees, specifying that they are trustees of particular property. It is not always necessary to proceed against all the trustees. Where there are few trustees or no division of responsibility is apparent, it may be appropriate to proceed against all. In any event it will be appropriate to name a number of trustees rather than one.
10. Service of a summons may be made on the addresses of the individual trustees, and a copy should also be sent to the office of the trust, if it has a recognisable office. There are separate provisions in relation to charitable trusts where the trustees are incorporated.
11. Charities may exist in various forms. The majority of charities must be registered with the Charity Commissioners for England and Wales 2. The principal exemptions from registration are:
Some charities are also excepted from registration under specific excepting orders: some churches and chapels, Scout and Guide groups and charitable funds held by the armed services.
12. The Commission maintains a register of charities which is available online and which provides such details as the charity’s registration number, details of its governing document and trustees, and dates of submission of accounts. In addition, the Commission holds copies of a charity’s governing document and, in many cases, its recent accounts, which are available to the public on request 4. The Commission also holds such other information as it thinks fit but not all of this will be publicly available.
13. However, an inspector may be able to obtain information or documentation from the Commission under its power in section 10(4) of the Charities Act 1993. This provides that the Commission may disclose to a body or person to whom this section applies (which includes a government department) any information received by them under or for the purposes of any enactment, where the disclosure is made by the Commission for any purpose connected with the discharge of their functions, and for the purpose of enabling or assisting that body or person to discharge any of its or his functions.
14. The register and much other information about charities is available at the Commission’s website.
15. A charity may be established in a number of forms, such as:
17. You will need to find out what sort of charity you are dealing with. This may be apparent from the register of charities. Otherwise, you may need to find this information from the charity itself or from the Charity Commission.
18. Charities are managed by a body of trustees. However, they may not be called “trustees” in the charity’s governing document or other documentation. If the charity is a company, its trustees are its directors and it will be registered at Companies House. You should therefore follow the usual procedure for prosecuting a company.
19. It is possible for trustees of a charity 7 to be incorporated under the provision of S.50 of the Charities Act 1993. Where trustees have been incorporated they form a 'body' which may be prosecuted in its corporate name.
20. If trustees have not been incorporated, they should be prosecuted in their own names as trustees (see above). The names of the trustees should be available from the Charity Commission. 8 However, if a charity is set up as an unincorporated association, for example with a list of rules or a constitution as its governing document, rather than a trust deed, it may be appropriate to prosecute the charity itself as a legal “person”. Further guidance on this should be obtained from LAO as needed.
Trustees of these types of charity may be called committee members, council members or have other historic titles. If you are unsure as to who are the charity’s trustees, consult LAO who will need a copy of the charity’s governing document.
21. A charter body is one established by Royal Charter and could be in the form of a company or run by trustees. You should be aware that under certain circumstances courts have powers under the Charities Act 1933 to put in place a scheme for regulating a charity with such status. Details of any existing regulatory scheme should be obtained from the charity or from the Charity Commission and legal advice sought as to whether it may have any relevance to legal proceedings.
22. Any person who decides to lay an Information against a young person must give notice of that intention to the local authority, 9 as soon as is practicable after the decision has been made. Before the young person is brought to court notice should also be given to the probation officer for the magistrates' court area.10 This is to allow for the making of any representations on the young person’s behalf, and for assistance to be made available to the court.
23. A 'young person' means any person under the age of 18.11
24. The requirement to give notice is discretionary, not mandatory, therefore failure to give notice under either section does not of itself invalidate proceedings 12, although in certain circumstances it might result in proceedings being quashed.
25. There are general statutory restrictions in place to prevent the reporting and publication of alleged offences or criminal proceedings which could reveal the identity of a person under 18 years of age 13. The restrictions apply to press releases and publicly accessible databases (eg the HSE prosecutions database). The identity of a young person or child should therefore not appear in the public domain (whether they are an offender or witness).
26. Information held on the HSE prosecution database must also comply with the Rehabilitation of Offenders Act 1974. If a person under the age of 18 is convicted of an offence, the inspector must advise FOD OSU2 (Legal and Enforcement) in writing, so that their name is not published, and so that the entry on the database can be deleted when necessary.