This OC gives practical guidance for inspectors on compliance with the HSE Enforcement Policy Statement
1 HSE's Enforcement Policy Statement (EPS) replaces HSC’s Enforcement Policy Statement which was published on 28 January 2002. The current version of the EPS was updated in July 2008 to take into account changes in governance arrangements between HSC and HSE. It is on the Legal and Enforcement site, the HSE Website and is also available as a hard copy leaflet (HSE 41).
2 The principles of the EPS apply equally to Scotland as they do to England and Wales, and the EPS acknowledges the different legal system in Scotland. This guidance also applies to Scotland, as well as to England and Wales. Where reference is made in this guidance to 'prosecution', or 'not prosecute following a work-related death', then, for Scotland, this should be taken to mean 'recommend prosecution', and 'recommend not prosecuting following a work-related death', respectively.
3 The EMM, which takes account of and follows the EPS is aimed at selecting enforcement action that is proportionate to the risk arising from a breach of law.
4 The stated purpose of enforcement aligns with that in the previous policy, and with the EMM, ie it is to:
5 Not all of these 3 actions will be taken in all cases and, in particular, it does not mean that there must be punitive action in response to every breach of law. Punitive action, (principally prosecution), is guided by other factors in the policy, including the principles of proportionality and targeting etc. as well as the Code for Crown Prosecutors for England and Wales). However, where appropriate, there may be cases where we carry out all 3 actions, e.g. serve a prohibition notice to deal with immediate serious risk, serve an improvement notice to secure wider longer-term compliance and prosecute as an appropriate and proportionate response to the breach. This point is reinforced by para 6 of the EPS which says that, when serving an IN or PN, we should also take action to bring the dutyholder to account, where it is appropriate to do so.
6 The principles of enforcement are based on the Executive’s belief in firm but fair enforcement of health and safety law. This should be informed by the:
These principles should apply both to enforcement in particular cases and to the health and safety enforcing authorities' management of enforcement activities as a whole. (Further information is in paras 10 to 29 of the EPS).
7 Whilst the previous policy referred to 'consider prosecution', the EPS refers additionally to 'normally prosecute' in certain circumstances (paras 40 to 42 of the EPS refer). In discussions 'normally prosecute' has been taken to mean that prosecution will be taken, or recommended, unless there are good reasons for not doing so and 'consider' will be taken to mean that the option of prosecution is always a factor in the decision making process. Paragraph 40 of the EPS also says that this is subject to earlier parts of the policy and this means, in particular, the principles of enforcement (proportionality, targeting etc), and the Code for Crown Prosecutors. 'Normally' does not mean 'always' and health and safety enforcing authorities will continue to use discretion, and will take action which is proportionate.
8 Paragraph 40 of the EPS gives more detail, and makes more explicit, the principal issues to be considered in relation to prosecution. The basic principle of prosecuting when it is proportionate to do so remains. In addition, work-related death is a special case. (See paras 11 to 15.)
9 Paragraph 42 of the EPS requires that prosecution is considered where a breach which gives rise to significant risk has continued despite relevant warnings from employees, their representatives or others affected by a work activity. The evidence relating to any warnings may be inconclusive (or the dutyholder may deny receiving such warnings), but, if we have good reason to believe that a relevant warning was given, then it may nevertheless be taken into account as an aggravating factor when deciding whether to prosecute.
10 Paragraph 48 of the EPS covers making representations to the magistrates court to send the case for hearing or sentence to a higher court for particularly serious cases. The Mode of Trial Hearing section of the Enforcement Guide gives further guidance.
11 Paragraph 40 of the EPS states that we should normally prosecute when death occurs as a result of a breach of the legislation.
12 Health and safety sentencing guidelines regard death resulting from a criminal act as an aggravating feature of the offence (the Howe case refers). The Executive considers that, if there is sufficient evidence, normally such cases should be brought before the court. It acknowledges also that there will be occasions where the public interest does not require a prosecution - depending on the nature of the breach and the surrounding circumstances of the death.
13 It follows therefore that where there has been a death then we should normally take a prosecution unless there are good reasons for not doing so, e.g. we cannot secure the evidence or it is not in the public interest. In HSE, a decision not to prosecute following the investigation of a work-related death should only be made by a senior manager at least at a level above the approving officer once the particular directorate/division investigations procedures have been followed. The reasons for the decision not to prosecute should be recorded.
14 This does not mean that death will always result in a prosecution. In practice, applying the principle of proportionality means that we should take particular account of how far the dutyholder has fallen short of what the law requires, and the extent of the risks to persons arising from the breach. In addition to considering the nature and extent of the breach, we also need to consider how any breach relates to the circumstances of the death, e.g. is there evidence of a causal link between the breach and the death. This is not always easy. We should also operate within the Code for Crown Prosecutors.
15 However, work-related death is a very important issue to enforcing authorities and to many stakeholders. It should therefore be considered fully and properly, in the light of public expectation that those who cause death through breaches of the law should, where appropriate, be brought to account. In this important area we need to consider not only bodies corporate, but also individuals, including directors and managers under s.37 (see also paras 25 and 26). Wherever s.37 is being considered the circumstances and decision to prosecute certain individuals, or not, should be fully documented.
16 The EPS makes it clear that the issue of simple cautions by inspectors applies only to England and Wales. Inspectors in Scotland should neither issue nor recommend them.
17 Paragraphs 3 and 6 of the EPS refer to 'simple cautions', and say that they, and prosecutions, are important methods for bringing dutyholders to account. A simple caution is a statement by an inspector, that is accepted in writing by the dutyholder, that the dutyholder has committed an offence for which there is a realistic prospect of conviction.
18 The HSE Board has decided that it would not normally be appropriate for HSE inspectors to use simple cautions. They should be used only in exceptional circumstances when the public interest firmly weighs against prosecution . Examples might include when court appearance would be likely to have a bad effect on a victim's health, or the accused is elderly or was suffering significant physical or mental ill health at the time of the offence.
19 Existing procedures for considering prosecution should be followed including obtaining the evidence and preparing a full prosecution report before considering if a simple caution is an option where the above exceptional criteria are met.
20 Since simple cautions should only be used in rare and exceptional circumstances it is particularly important that full consideration is given to the matter and that we are consistent in our approach. Agreement in writing by a senior manager at least at a level above the approving officer should be obtained before a simple caution is issued.
21 Further guidance on the use and issue of simple cautions by HSE inspectors, is contained in OG 00018
22 The EPS refers (para 3) to enforcing authorities 'warning a dutyholder'. Warnings have been the subject of considerable debate prior to the change in governance of HSE, both by the HSE Board and the Commission. The view of HSC was that a warning consists essentially of an inspector telling a dutyholder that they believe they have broken the law and need to take action to comply. HSC considered that a warning could be verbal or written and that the use of warnings should be left to inspectors' discretion. HSC considered that a more prescriptive approach would mean additional requirements for recording written warnings and saw a need to avoid imposing unnecessary bureaucracy.
23 A warning should therefore be considered to be any form of previous advice to a dutyholder that tells them explicitly that they are not complying with the law. (This can range from a formal notice to a letter, or telling the dutyholder verbally). Where we have warned a dutyholder, verbally or in writing, and this has been documented (e.g. in a copy letter or in a database contact summary) then this should be taken into account as an aggravating factor when considering future enforcement action.
24 Failure to comply with a warning does not, of itself, lead automatically to prosecution. We need to consider the nature and extent of the risk and the breach, and other factors in the policy. However where the warning was in the form of an improvement notice, then failure to comply would normally result in prosecution - as would failure to comply with a prohibition notice or repetition of a breach that was subject to a simple caution. Failure to comply with an enforcement action in a permissioning regime that is similar to, and is designed to achieve compliance in the same way as, an IN or a PN, should be treated in the same way.
25 Prosecution of individuals is covered in para 43 of the EPS, which goes beyond the previous policy in that it states that enforcing authorities should 'consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so in accordance with this policy'. We should also seek disqualification of directors where appropriate.
26 This reinforces the need to consider all dutyholders, and persons with responsibilities under the HSW Act and relevant statutory provisions, when investigating potential breaches of health and safety legislation. (Further advice on individuals is being prepared.)
27 Paragraph 20 of the EPS states that, when inspectors carry out certain formal enforcement actions (issuing improvement or prohibition notices, withdrawing approvals, varying licence conditions or exemptions, issuing simple cautions, or prosecuting), we should ensure that a senior officer of the dutyholder concerned is also notified. This officer should be at board level, or where a board does not exist (e.g. a university or local authority), be of an equivalent standing.
28 Paragraph 7 of the EPS, and its introduction, refer to resources in general, and that we should have regard to the principles of enforcement (proportionality, targeting etc) when deciding on the resources to allocate to different kinds of activity. We should also strike a balance between investigations and mainly preventive activity. Paragraphs 31-34 of the EPS discuss resources in relation to the selection and investigation of accidents and other incidents. This is something with which enforcing authorities are generally familiar. However, there is an additional important implication for resources in para 37 of the EPS.
29 Paragraph 37 of the EPS states that where, in the course of an investigation, an enforcing authority has collected sufficient evidence to provide a realistic prospect of conviction and has decided, in accordance with this policy and taking account of the Code for Crown Prosecutors, that it is in the public interest to prosecute, then that prosecution should go ahead.
30 This means essentially that, whilst resources are an issue when considering what, how and to what extent we inspect or investigate, once we have investigated and have sufficient evidence to prosecute (and it is appropriate to do so) then conflicting priorities for resources should not prevent the prosecution from going ahead.
31 The EPS (paras 9 and 18) refers additionally to the selection of incidents for investigation. It states that we should use discretion in deciding when to investigate, and that we should have systems for deciding which investigations (and inspections and other regulatory contacts) should take priority according to the nature and extent of risks.
32 Important issues for investigations are in paras 31-34 of the EPS, which set down general purposes of investigation and the factors that should be taken into account in selecting incidents for investigation. Inspectors should refer to their operational directorate/division or local authorities criteria for the selection of accidents for investigation.
33 A further addition to the EPS is para 33 which states that enforcing authorities should carry out a site investigation of a reportable work-related death, (unless it is an instance of adult trespass or apparent suicide on the railway) or there are other specific reasons for not doing so, in which case those reasons should be recorded.