Public interest stage
Public interest factors to consider
1. The Approval Officer can only consider whether a prosecution is required in the public interest if s/he is satisfied that the case has passed the evidential stage of the Full Code Test in the Code for Crown Prosecutors. In the latest edition of the Code (published in January 2013) the public interest stage has been revised.
2. In applying the public interest stage of the Full Code Test, the Approval Officer has to balance the factors for and against prosecution very carefully. The approval decision must be fair and free of any personal views about ethnic or national origin, gender, age, religion or belief, political views, sexual orientation or gender identity of the suspect, victim or any witness The decision must not be affected by improper or undue pressure from any source.
3. The Enforcement Policy Statement (EPS)1 sets out the common public interest factors in health and safety investigations which, if present, HSE expects should normally lead you to prosecute or recommend a prosecution. These are:
- death was a result of the breach of legislation;
- the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it;
- there has been a reckless disregard of health and safety requirements;
- there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;
- work has been carried out without or in serious noncompliance with an appropriate licence or safety case;
- a duty holder's standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk;
- there has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a formal caution;
- false information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk;
- inspectors have been intentionally obstructed in the lawful course of their duties.
4. HSE also expects enforcing authorities to consider prosecution (or recommending prosecution) where it is appropriate to draw attention to the need for compliance with the law and to deter others, or where a breach that gave rise to significant risk continued despite relevant warnings 2.
5. This is not an exhaustive list. The EPS acknowledges that there may be occasions where the above factors may be present but where the public interest does not require a prosecution. The Code for Crown Prosecutors 3 requires the prosecutor to consider a number of questions including how serious is the offence committed? What is the level of culpability of the suspect? What are the circumstances of and the harm caused to the victim and also whether prosecution is a proportionate response? It is important to carefully consider paragraphs 4.7 to 4.12 of the Code.
6. The Approval Officer must consider each of the questions set out in paragraphs 4.12 a) to g) of the Code. The questions are not exhaustive and not all may be relevant in every case. The weight to be attached to them and the factors identified will also vary according t the facts of merits of each case.
Views of the victim(s)
7. The aim of HSE is to protect the health, safety and welfare of people at work, and to safeguard others, mainly members of the public, who may be exposed to risks from the way in which work is carried out. HSE prosecutes in the general interest of these groups rather than on behalf of any particular individual(s). However Approval Officers should, when considering the public interest, take into account any views expressed by the victim regarding the impact that the offence has had. In appropriate cases, any views expressed by the victim's family should also be considered. (see paragraph 4.12 c) of the Code of Crown Prosecutors 2013). Guidance on taking account of the views of victims is set out in OM2003/106. See also HSE's policy statement on working with victims.
8. If a victim personal statement (VPS) has been taken, this should be provided to the Approval Officer. If the victim has not made a VPS, his/her views should nevertheless be considered in the prosecution report and taken into account at the public interest stage. Instructions on the use of victim personal statements are given in OC130/12.
9. The EPS commits inspectors to keeping employees, their representatives, and victims or their families informed. Specific guidance has been prepared to assist inspectors with contacts with the bereaved. Contact with relatives of people killed through work activities has further operational guidance on taking account of the views of the victim.
10. It is important for you to explain to victims or the bereaved that, whilst the Approval Officer will "take into account" their views, HSE is not bound to follow those views when reaching the final decision on enforcement.