Proceeding against Crown employees (HSWA s7 36(2))
Although the Crown is bound by the general duties of HSWA, S48(1) establishes that it cannot be prosecuted, nor can it be served with improvement or prohibition notices. This Crown immunity applies both to central government departments and to other Crown bodies such as the Forestry Commission. However S48(2) and (3) state that persons in the public service of the Crown can be prosecuted under HSWA, and are to be treated as employees of the Crown for such purposes, therefore coming within s7.
HSE has in the past given a number of reassurances against the possibility of the abuse of this wide power. It has said that it had no intention whatsoever of prosecuting an individual civil servant in substitution for his department. It has also said that it would only prosecute an individual civil servant in circumstances in which it would prosecute an individual employee person outside the Civil Service.
For example, where there was wilful or reckless disregard of health and safety requirements and a consequent contravention of section 7 or 8 of HSWA, HSC’s Chairman has said that no personally culpable employee should escape prosecution simply because s/he is in Crown employment.
If proceedings are contemplated against a member of the armed services for an infringement of HSWA inspectors should consider the terms of the General Agreement between HSE and the Ministry of Defence of 1981, renewed in 2000, which provides that a criminal prosecution will only be instituted in exceptional circumstances, see Review of the HSE/MoD General Agreement .