OC 130/8 version 2
This document tells you about HSC's policy on prosecuting individuals, gives you our current instructions on the issue, gives you some guidance and tells you where you can find additional help. The entire document is 'open', except for Appendix 5, which is 'fully closed'.
HSC policy on prosecuting individuals
1 The Executive's Enforcement Policy Statement (EPS) requires inspectors to identify and prosecute (or recommend prosecution of) individuals if they consider that prosecution is warranted.
2 The role of directors, managers, employees and other individuals should be considered in our criminal investigations, and, in deciding whether to prosecute individuals, you must be satisfied that the evidence provides a "realistic prospect of conviction" (the evidential stage). If it does then you should consider whether a prosecution is in the public interest, applying the Commission's EPS and the Code for Crown Prosecutors. Reference to the Code for Crown Prosecutors and its evidential and public interest stages should, in Scotland, be read as the Prosecution Code and its evidential and public interest considerations.
3 In the early stages of an investigation, if there is no indication that individuals have committed an offence that ought to be prosecuted, then you should decide not to follow that line of enquiry. Even if evidence is obtainable, but you judge that prosecution would not be warranted, resources can be put to better effect elsewhere. However, you need to keep an open mind and review your decisions (with your line manager) in the light of any additional information. In all cases you must record your decisions.
4 This document tells you about the principles to follow and the factors to take into account when considering prosecuting individuals under sections 7, 8, 36, and 37 of the HSWA. It doesn't deal with prosecuting those individuals (such as landlords or competent persons) who have specific duties under health and safety law, nor individuals under sections 2, 3, 4 and 6. However it may help when considering regulations, such as Regulation 20 of the Protective Personal Equipment Regulations 2002, where the duties and offences are similar to those in sections 7, 8, 36 or 37. It doesn't deal with other enforcement action (notices, letters, formal cautions etc). OG 00018 deals with formal cautions.
5 HSE investigations of possible health and safety offences are, in England and Wales, criminal investigations within the meaning of the Criminal Procedure and Investigations Act 1996 (CPIA) - we investigate to find out whether a person (this includes all 'legal persons', i.e. including a company) should be charged with an offence. This applies however the investigation starts. The CPIA requires us to pursue all reasonable lines of inquiry. This does not mean that we must follow every possible line of inquiry to its end. We must make judgments, and these need to take account of the likelihood of a line of inquiry producing sufficient evidence to commence a prosecution and whether any such prosecution would accord with the EPS.
6 The Executive's EPS says that it is neither possible nor necessary for us to investigate all issues of non-compliance. We need to consider which potential breaches should be pursued, or continue to be pursued, in accordance with the EPS.
7 Your decisions will depend on the circumstances of the case, the information you have, the objectives of your investigation, the likely benefits from investigating further, the practicalities of continued investigation, the resources that may be needed and the likely outcome.
8 You need to consider both whether we can prosecute, and whether we ought to prosecute. The two questions are: - "Is there enough evidence to provide a 'realistic prospect of conviction'?" (The Evidential Stage of the Test) and "Would prosecution meet the principles of the EPS and be in the public interest?" (The Public Interest Stage of the Test).
9 A body corporate operates only by and through the actions of its employees and officers (including directors and managers). If a body corporate commits an offence then there is likely also to be some personal failures by directors, managers or employees. This does not mean we always prosecute individuals. The Code for Crown Prosecutors, like the Commission's policy, makes clear that not all offences should be prosecuted. The public interest stage, as well as to the evidential stage, should be applied.
10 In general, prosecution of an individual will be warranted in cases where there have been personal act(s) or failing(s) by an individual, and it would be proportionate to prosecute, bearing in mind the nature and extent of the breach and the risk to health and safety arising from it. In considering risk, the EPS states that enforcement action should be focused on those who are responsible for the risk and are best placed to control it. Whilst this would include cases where there have been substantial failings by individuals (such as where they have shown reckless disregard of health and safety requirements), or there has been a deliberate act or omission that has given rise to significant risks to the health and safety of persons, the prosecution of individuals should not be restricted to such cases. The same considerations can apply to individuals as to companies, i.e. as set down in the Code for Crown Prosecutors and, when applying the public interest stage of the test, the considerations set out in the EPS.
11 The Enforcement Management Model (EMM) provides a framework to ensure that you consider the issues in the EPS. It includes 'dutyholder' and 'strategic' factors, which you should take into account as appropriate. However, not all the factors may be relevant to individuals. Previous written advice to, or enforcement against, individuals is likely to be rare, therefore the absence of such advice/enforcement is not a mitigating factor - but its presence is a strong aggravating factor when considering proceeding against an individual.
12 It is important to record your key decisions. They may be recorded on the EMM Enforcement Assessment Record Form, in a dated entry in your notebook, in a running log kept of the investigation, in a policy/decisions record book, etc. The method of recording is secondary. The principal concern is that a record of the decision is made at the time the decision is made (or as soon afterwards as is reasonable), that the record is retained, and that it is available to operational line managers.
13 Appendices 1 to 4 detail the issues you need to think about when considering action under sections 7, 8, 36 and 37 of the HSWA. Appendix 6 gives guidance on the circumstances when an individual might be disqualified from holding office as a director, under section 2(1) of the Company Directors Disqualification Act 1986.
14 Advice on the legal interpretation of sections 7, 8, 36 and 37 of the HSWA is given in Appendix 5. Further guidance is in the Enforcement Guide.
15 If you need further advice on prosecuting individuals in specific cases ask your operational line management and/or colleagues. In addition, relevant HSE's Sectors, Health Unit and Safety Unit can give advice to help ensure a consistent approach. Any queries about the EPS [PDF 89KB], EMM or the application of this document that cannot be dealt with by divisional line management should be referred to your Directorate legal liaison point.
Appendix 1 - Section 7: Employees
The evidential stage of the test
1 To prosecute under section 7 you must be able to prove that a person is:
- employed, and
- 'at work' in the course of his/her employment, and either
- did not take reasonable care for someone's health and safety (including their own), or
- did not co-operate with their employer so far as was necessary to enable their employer to comply with a statutory duty or requirement.
2 What is 'reasonable care' and 'necessary to enable' needs to be considered in the context of the employer's provisions. For example, a machine operator who has received inadequate training might be considered to have acted reasonably in all the circumstances if he/she removes a guard from a machine and continues to use it, and this is the generally accepted and condoned practice in the company. In other circumstances the same act might be considered unreasonable, if the employee has received proper training, if the guard in question is sufficient, and if removal of guards is neither accepted nor condoned in the company.
3 'So far as is necessary' does not require employees to compensate for employers' failure to make adequate provisions. This remains the responsibility of the employer.
The public interest stage of the test
4 As well as being able to prove a case under section 37, you also need to decide whether a prosecution ought to be taken. Where the employer appears primarily responsible for the circumstances causing you to consider enforcement then action would normally be taken against the employer only.
5 For section 7 offences you should consider:
- whether the company had done all it reasonably could to ensure compliance;
- whether the offence was solely the result of the actions/inactions of the individual;
- whether employees, as a matter of general practice, followed the systems of work alleged by the employer to be in force;
- any previous warnings to the employee, from whatever source;
- whether the offence by the employee was flagrant;
- the risks to health and safety arising from the offence by the employee; and
- whether prosecution would be seen by others as fair, appropriate and warranted.
6 In some cases you may need to consider if the company had done all it could and the offence resulted solely from the actions/inactions of an individual or whether, notwithstanding individuals' actions, the company was culpable. You will be deciding whether action should be against the company or the individual.
7 It is also possible, but probably less likely, that you may want to prosecute both the company and an individual employee. This might be where there were deficiencies in the company's arrangements/procedures and additional, separate actions/inactions by an individual - both of which warrant prosecution. However, we do not generally prosecute individuals whose actions arose from their employer's unsatisfactory working arrangements and procedures.
8 When appropriate you should not hesitate to take action under Section 7 against managers and supervisors who are not directors/managers subject to Section 37. Each case should be considered on its merits. You should bear in mind though that lower level managers are closer to the day-to-day activities of a company and you may therefore find it easier to obtain evidence against them. Where the principal failings were at a higher level then, in accordance with the principles in the EPS, your enforcement action should be targeted at that higher level, notwithstanding any comparative difficulty in obtaining evidence. Beyond that, if the principal failings were at corporate level and the control of the risk was, (without individual allocation), in the hands of a number of managers, then your action would probably be best directed at the body corporate.
9 Some acts of horseplay and violence against people will come within the scope of section 7 if they arise out of or in connection with work and put people's health and safety at risk. Examples include horseplay with air-lines, staple guns or HFLs, and 'initiation ceremonies'. However you should only consider action in relation to acts that are directly related to work. Incidents that are personal in nature will not be within scope. An example of an incident occurring at work, but not related to work, would be an employee assaulting a supervisor because he believed the supervisor had stolen his wallet. See OC 213/2 for more advice on violence at work.
10 In general we are most likely to prosecute employees under section 7 where they have shown a reckless disregard for health and safety, and such disregard has resulted in serious risk.
11 Although the Crown is bound by the general duties of the Act it cannot be prosecuted nor can it be served with improvement or prohibition notices (HSW Act s.48). (Though administrative sanctions, including Crown censure and Crown notices are available.) This immunity from formal enforcement applies to central government departments, and Crown bodies such as HM Prison Service, as well as to other organisations in specific circumstances, e.g. the Environment Agency when it is undertaking specific duties for the Minister. If you have any doubt about the status of an apparently 'crown' body then contact the Public Services Sector (Defence, Fire and Police Unit) for advice.
12 We do not apply different tests or criteria when we consider prosecuting Crown servants. All employees are treated the same. We do not prosecute Crown employees in circumstances where we would not prosecute employees of a non-Crown organisation, just because we cannot prosecute their employer. Equally, no personally culpable employee whose prosecution is warranted should escape prosecution simply because he/she is a Crown employee.
13 If you contemplate prosecuting a serving member of the armed forces or a member of a visiting force you should seek advice from the Public Services Sector (Defence, Fire and Police Unit) before proceeding.
Appendix 2 - Section 37: Directors, managers etc
The evidential stage of the test
1 To prosecute someone under section 37 you need to be able to prove that:
i. a body corporate has committed an offence under a relevant statutory provision; and
ii. a person is a "director, manager, secretary or other similar office holder" within the terms of section 37; and that either
- the person was aware of what was going on and agreed to it, (consent); or
- the person was aware of what was going on (connived); or
- what was going on was attributable to the neglect of the person, in relation to an obligation or duty on the part of the person.
The public interest stage of the test
2 As well as being able to prove a case under section 37, you also need to decide whether a prosecution ought to be taken. Action under section 37 should generally be targeted at those persons who could have taken steps to prevent the offence. For a section 37 offence your considerations should include whether:
- the matter was, in practice, clearly within the director/manager's effective control - did the steps that could reasonably have been taken to avoid the offence fall properly and reasonably within their duties, responsibilities and scope of functions?
- the director/manager had personal awareness of the circumstances surrounding, or leading to, the offence?
- the director/manager failed to take obvious steps to prevent the offence?
- the director/manager has had previous advice/warnings regarding matters relating to the offence? (This may also include whether previous advice to the company meant that he/she had the opportunity to take action. In such a case you would need to show that he/she knew, or ought reasonably to have known, about the advice/warning).
- the director/manager was personally responsible for matters relating to the offence, e.g. had the individual manager personally instructed, sanctioned or positively encouraged activities that significantly contributed to or led to the offence?
- prosecution would be seen by others as fair, appropriate and warranted?
- the individual knowingly compromised safety for personal gain, or for commercial gain of the body corporate, without undue pressure from the body corporate to do so?
3 We would not expect to prosecute directors/managers in all cases where it may be possible to prove consent, connivance or neglect. Each case is considered on its own facts and circumstances and any subsequent enforcement action should reflect the principles of proportionality and targeting in the EPS. Prosecution is intended to bring home to emphasise to directors/managers the extent of their responsibilities, and to bring them to public account for their failings where appropriate.
4 Where there is sufficient evidence and the public interest is met, section 37 cases may be taken against directors/managers as well as prosecuting the company for an offence under the relevant statutory provisions, even where there is a sole director. This is not regarded as prosecuting the same person twice as the two are separate legal entities. Should both matters result in a conviction, it will be for the sentencing tribunal to sentence accordingly. The Code for Crown Prosecutors provides that case review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. This could result in existing charge/s being discontinued, or new charges being instituted. Where a director is not originally prosecuted alongside the company, it has been held that a company going into liquidation can amount to a change of circumstances leading to a section 37 case subsequently being taken against a director/manager (HSE v EMC Contracts Limited and Paul Cotterell, Preston Crown Court, 20 November 2013). Irrespective of whether there is evidence that the liquidation may have been a deliberate attempt to avoid prosecution, providing the case against the individual is warranted in any event, it is likely to be appropriate for the prosecutor to institute proceedings against that individual following a review of the case. Inspectors should seek advice from Legal Advisers Office where they are considering whether to prosecute a director/manager in light of a change in circumstances brought about by a company entering insolvency.
5 Directors/managers who are subject to section 37 may also be employees and therefore also subject to section 7. You have to judge which is more appropriate. In general this is determined by the role being fulfilled at the time. If he/she was acting as a director of the company and directing its affairs then section 37 should be used. If he/she was, in effect, acting as an employee and carrying out the company's procedures in the same way as other employees then section 7 may be more appropriate. The facts of the case should determine which is appropriate and not whether one offence is easier or more convenient to prove.
Disqualification (from being a Director)
6 Courts can, in some circumstances, make disqualification orders against individuals convicted of indictable offences. This applies in particular to cases against existing directors under section 37, but is not restricted to such cases. HSE considers that it is appropriate for a court to consider disqualification in all cases where the law makes provision for it. Therefore, in all cases where an individual is prosecuted for an indictable offence, where the offence is in connection with the management of a company, the court should be reminded that it has the power to disqualify under section 2(1) of the Company Directors Disqualification Act 1986. Guidance on this, and on the procedure to be adopted, is in Appendix 6 and in the Enforcement Guide.
Appendix 3 - Sections 8 and 36: Other individuals
The evidential stage of the test
1 Sections 8 and 36 allow cases to be taken against persons who did not commit the original offence but who nevertheless caused the offence. ('Person' includes bodies corporate as well as individuals). This includes people who are not specific dutyholders under HSWA, such as members of the public or elected members of local authorities - see Appendix 5, Para 17.
2 Employees and directors/managers may fall within sections 8 and 36. It is therefore possible for a person to be considered for prosecution under a range of sections. You should, in the first instance, look to the sections 7 and 37, which deal specifically with employees and directors.
3 To prosecute under section 8 you need to prove that:
- something was provided in the interests of health, safety or welfare under a relevant statutory provision, and
- what was provided was either interfered with or misused, and
- this was done either intentionally or recklessly.
4 To prosecute under section 36 you need to prove that a dutyholder committed an offence, and that the offence was caused by the act or default of the other person.
The public interest stage of the test
5 As well as being satisfied that a case has a realistic prospect of conviction, you need to decide whether the case should be brought. The same principles and considerations apply to sections 8 and 36 as to sections 7 and 37. In general this means that prosecution should be a proportionate response to the offence by the 'other person' and takes account of the risk created by the offence, the role played by the 'other person', whether remedial measures were truly under their control, and whether other dutyholders were more at fault. Consideration should be given to the EPS, and the Code for Crown Prosecutors, and whether others would see prosecution as being fair, appropriate and warranted.
Appendix 4 - Guidance on investigating possible offences by employees and other individuals
1 This Appendix gives you some practical advice for when you investigate possible offences by employees and other individuals under HSWA sections 7, 8, 36 and 37. The guidance follows the principles of the Operational Procedure for Investigation, and should be read in conjunction with that procedure.
General investigation procedure
2 The starting point for your investigation is normally an 'event'. Generally this will be a reported incident, or an unsafe set of circumstances encountered as a result of routine inspection, or a complaint. Your investigation is normally concerned with establishing the circumstances that led to the 'event', with objectives that include:
- identifying immediate & underlying causes;
- identifying and securing remedial action required to prevent recurrence;
- identifying significant breaches of the law;
- identifying what, if any, formal enforcement action is warranted to bring dutyholders to account and
- collecting sufficient evidence to support this formal action.
3 This Appendix doesn't discuss remedial action. Securing timely remedial action to control serious risks to health and safety is the priority and should not be jeopardised in favour of securing legal proceedings.
4 The initial focus of your investigation should be the 'event' itself and not the involvement of any particular dutyholder. Once you have established the immediate circumstances leading to the 'event' you should be able to identify potential breaches and further relevant and reasonable lines of inquiry. In doing this you will need to consider the roles and possible criminal liability of all potential dutyholders, including individuals.
5 You need to consider all the circumstances in which employees act, particularly any responsibilities they have within the management chain, before deciding whether or not to investigate further and/or to take enforcement action under section 7. Generally therefore, your investigation should explore, and (if prosecution is contemplated) collect evidence of, what the employer has done in areas such as training, supervision, risk assessment etc.
6 It is important that you keep an open mind and respond appropriately to information that comes to light and changes the direction of your investigation, in terms of potential breaches and dutyholders you are considering. Not doing this wastes resources and may result in you not targeting an appropriate dutyholder.
7 In general, whether continuing to investigate a potential breach is warranted will depend on a number of factors, including the following:
- The practicalities of collecting sufficient evidence/information to support the objectives of the investigation, including legal proceedings;
- Even if sufficient evidence of a breach could be obtained, whether it is likely to be in the public interest, and in accordance with the principles of the EPS, to prosecute;
- Public expectation, for example where there has been a death arising out of a breach of health and safety law;
- The severity of the hazard and whether it is reasonably foreseeable that a repetition of the circumstances could result in a fatality, serious ill health or serious injury;
- The prevalence of the event, either within the control of the specific dutyholder or across industry generally.
- The extent to which resources needed to pursue the investigation are proportionate to the hazard/risk;
- Whether inadequate resources, or other developing priorities, prevent investigation;
- The extent of any existing or developing conflict between the investigation and any directorate/divisional priorities;
- The value to HSE of the information to be collected, e.g. where the investigation objective is to inform research and development;
8 These considerations should be applied throughout the investigation to review whether the investigation remains in line with the principles of EPS and the objectives of the investigation. (Further information is in the Investigation Procedure). Where, at any stage of the investigation, it is decided that further investigation is not appropriate; this should be recorded, with reasons.
Directors/managers etc: Section 37
9 Section 37 requires an offence by a body corporate so you need to prove that a body corporate exists. In the case of incorporated companies (which may include some charities, schools etc) this can be done through Companies House. For other organisations reference may be made to a relevant Act or Order of Parliament, or to controlling/registering organisations such as the Charities Commission. (Note that there does not have to be a conviction, or even proceedings, against the body corporate to proceed against a director/manager under Section 37, but we do have to prove that the body corporate committed an offence as part of the Section 37 case).
10 Directors and company secretaries are clearly within the scope of section 37. Whether a manager or similar officer comes within scope will depend on their position within the body corporate that committed the offence. You will need to consider not only their position in the management chain, but also the scope of their authority of office in practice. All investigations looking at the role of a particular individual, whether a director, manager or otherwise, should consider their scope/authority of office etc in relation to the matters under investigation.
11 Evidence that someone is a director or company secretary of an incorporated company can normally be obtained through Companies House. Remember, however, the time allowed for companies to send information to Companies House. Where there is doubt it is wise to obtain witness evidence that a person is a director/manager.
12 Publicly available documents can help your investigation. Bodies corporate may have articles of association or other documents that identify directors, secretaries, managers, etc. These may include a memorandum of association, certificate of incorporation, the articles of association, and the annual return.
13 As well as public documents, there are internal documents that may help:
- Letters and headed stationery. Business letters can indicate directors' names, company registration number and registered address. It's not obligatory for stationery to name directors but if it does then it should give the names of them all.
- Annual reports. These can identify the principal senior officers of a company. They may give a useful indication of the organisation's public commitments, but usually provide little information to help when considering prosecuting individuals.
- Minutes. Board Minutes are legal records of what is decided at Board meetings. The Companies Act 1985 requires that they be kept. Other minutes (health and safety meetings or management meetings) can indicate the organisation's effectiveness in managing health and safety risks, its knowledge/awareness of health and safety risks, as well as discussions on remedial action.
- Other documents - for example organisation charts, records and significant findings of risk assessments, method statements, training records, results of discussions with employees' representatives, records of monitoring, records of actions taken after previous incidents etc.
14 You will need evidence of an individual's actual 'scope of office' regardless of whether the person is described as a director, secretary, manager or other officer. Your investigation should explore questions such as:
- what kind of decisions is the individual charged with making?
- what authority to direct and/or sanction investment, staffing levels, other resources? (Financial authority is only relevant in so far as it relates to the matters under investigation. It may not be relevant where an individual has failed to take steps to develop and implement working procedures that were clearly in his area of control and required no additional cost).
- what authority to decide, direct and/or sanction policies and procedures?
- what authority to take on new projects and direct work activity?
15 Reliable documentary evidence can be valuable. Job descriptions, contracts of employment, organisation charts, safety policies, minutes of meetings, purchase orders etc. all provide good evidence, provided the status and meaning of the documentation can be verified by reliable witness evidence from, for example, document users and authors.
16 A document that assigns duties or responsibility to an individual should not be taken at face value. For example, individuals may be assigned responsibilities by a safety policy that is unreasonable given their competence, support and authority. You should therefore verify the document as a current, established and true working document within the body corporate. We need to protect people from being held to account by policy documents that are not implemented in practice.
17 A statement from a colleague and/or subordinate giving descriptions of their understanding, experience and knowledge of an individual's role can be valuable evidence if it relates to the witness' first hand knowledge, such as actions personally observed, instructions personally issued or received etc. Don't forget that 'hearsay' evidence from a witness of fact may not be admissible. See the Enforcement Guide for information about hearsay evidence.
18 To be reliable, witness evidence referring to observations and instructions issued and received should be corroborated. A court will be unlikely to convict if the evidence boils down to one person's word against another. It is also important to consider the credibility of witnesses giving evidence against an individual. A recent case failed because the court considered a key witness to be possibly biased. This was indicated by part of the witness' evidence being inconsistent over time.
Consent, connivance or neglect
19 As well as establishing the 'status' of individuals, investigations into possible s37 offences need evidence that the individuals consented to or connived in the offence by the body corporate, or that the offence was attributable to their neglect.
20 The legal meaning of consent and connivance is discussed in Appendix 5. The central point is awareness. Evidence of such 'awareness' may come from:
- documentation such as minutes/notes of meetings,
- showing that the individual sanctioned particular action, or was present when relevant matters/activities were discussed/agreed;
- first hand witness evidence observing the individual, for example personally carrying out or observing a particular work activity, or
- first hand witness evidence of instructions given and received.
21 To prove neglect, we have to prove that the accused has failed to take some steps to prevent the commission of an offence and that the taking of those steps either expressly falls, or should be held to fall within the scope of the functions of the office which he holds. A court would need to consider this in light of the whole circumstances of the case including the accused's state of knowledge of the need for action, or the existence of a state of fact requiring action to be taken of which he ought to have been aware.
22 You therefore need to establish whether:
i. the particular matters under investigation are within the true 'scope of office' of the suspect. This goes beyond the questions explored to satisfy that the person comes within the scope of s37, including the Boal tests. (See legal commentary on s37 in Appendix 5). The role of a managing director, for example, is not predetermined by his title and he/she is entitled to delegate responsibility, and to make a reasonable assumption that what another officer of the company tells him/her is accurate, without checking that it is in fact accurate;
ii. the suspect was aware, or should have been aware, of the risk and the need for action;
iii. the offence was directly attributable to the particular steps that the suspect failed to take.
23 In addition to the scope of office and the knowledge/awareness of the individual, you should also explore the risk gap (as set out in the EMM) existing at the time of the alleged offence and how far the individual personally fell short of what was expected of him in relation to this gap. For example, a complete or near complete absence of safe systems or physical safeguards in relation to a risk of serious personal injury that should be obvious to any reasonable person with the knowledge and skills of the individual concerned would normally trigger concerns about neglect.
24 Collecting evidence to prove neglect within s37 might involve you exploring:
- Which director/manager was ultimately responsible for arranging risk assessments?
- Which director/manager was ultimately responsible for arranging for providing safe systems of work and/or physical safeguards?
- What was, or what should have been, the director/manager's knowledge of the work activity in question?
- Was the director/manager, or should he/she have been, aware of the risk? Any advice and warnings (that can be proved) from HSE or others?
- Were there steps that the director/manager could have taken to avoid the offence by the body corporate that were, or should have been, obvious to a person in his/her position?
- If the director/manager did take some steps to avoid the commission of the offence, how far did these steps fall short of what was expected?
Other individuals: Sections 8 and 36
25 For section 36 cases you will need evidence to show that a particular act or default was linked directly to an offence by the principal dutyholder. There is no restriction on the type of person to which s36 applies, so there is no need to consider the authority of the person concerned, or their scope of office within their own organization. For example, a section 36 case may arise where a consultancy has provided bad advice to a client, who in good faith follows the advice and commits an offence. The 'scope of office' of the individual providing the advice may be relevant to your investigation if there are training/competency issues to explore. Your investigation needs to consider how the act/default came about - was it the result of an individual's own failings, or was it as a consequence of inadequate resources, or systems or procedures, provided by his/her employer, or others. Similar considerations apply to section 8 cases.
26 When considering action under section 36 against an individual who is an employee or a director/manager of another company you will need to take account of the rest of this document about sections 7 and 37, to come to a view on the balance of responsibility between employee and employer.
27 Although the section clearly allows it, it would be unusual to prosecute a person by virtue of section 36 and also to prosecute the principal dutyholder. It would be illogical, in most circumstances, to hold the act or default of another person directly responsible for the offence and at the same time to prosecute the first person. If there is significant contribution on both sides, separate offences, for example including one under s3, may be more appropriate. Though paragraph 19 of the EPS indicates that both may be proceeded against, we should also consider paragraph 17, which requires us to target enforcement at those who are responsible for the risk and are best placed to control it.
28 Under section 8, any person can be prosecuted for intentionally or recklessly interfering with or misusing anything provided in the interests of health, safety and welfare. 'Intent' requires proof that the act of interference or misuse was committed deliberately.
29 Confession evidence is not necessarily required to prove intent. Evidence of fact about the act of interference/misuse may be sufficient if the facts are such that no other reasonable explanation exists - for example, when someone has overridden an interlock switch by taping it in the closed position. However, you should note this does not necessarily mean the perpetrator knew that the switch had a safety function.
30 Although it is technically possible for a company or other organisation to commit an offence under s8, a company/organisation does not have its own 'state of mind' and it is therefore likely to be extremely difficult to prove intent.
Use of powers and the admissibility of confessions
31 Where someone is suspected of an offence for which they may be prosecuted they should not be questioned in relation to that offence unless they have been cautioned in accordance with the Police and Criminal Evidence Act 1984 (PACE), or, in Scotland, in accordance with the guidance in the Scotland Enforcement Handbook. Failure to do this could result in the court excluding evidence on which the prosecution rely in legal proceedings. See the Enforcement Guide for guidance on PACE.
32 If you propose to prosecute an individual they should always be invited to attend an interview under PACE when questions about their involvement in the suspected offence can to be put to them, prior to submitting the prosecution report. At the end of the interview the suspect should be given the opportunity to say anything further and to give any explanation they wish to give in relation to the suspected offence.
33 Where possible, confession evidence - evidence obtained from the suspect in a PACE interview - should not be relied on as principal evidence. As a general rule, the PACE interview should take place in the final stages of the investigation.
Applying the EMM
34 In all cases we should take action that accords with the EPS, supported by the framework of the EMM. If prosecution is proposed then an enforcement assessment record form (EMM1) should be completed. Where particular dutyholders and strategic factors in the EMM are not relevant this should be noted on the EMM1 form. The completed form should be included in the prosecution report.
35 It is important to keep a record of your considerations in relation to individuals - whether we prosecute them or not. The nature and extent of the record depends on the circumstances, but it is particularly important to record our decisions when we investigate deaths and very serious injuries. This is so we can show that due consideration has been given to all relevant dutyholders, and that all reasonable lines of enquiry have been followed to the extent that is necessary and appropriate. It is important that when we've considered individuals' roles during an investigation this is reflected in our reports and records. Where a decision has been made to pursue (or curtail) a line of inquiry this decision, with reasons, should be recorded as soon as possible, for example as a notebook entry, on an investigation log or on a divisional database. The method is for you and your managers to decide.
1 Exemption – Section 42 – Legal and professional privilege.
Appendix 6 - Disqualification from being a director
1 Section 2(1) of the Company Directors Disqualification Act 1986 empowers a court to make a disqualification order against a person convicted of an indictable offence in connection with the promotion, formation, or management of a company. (If the case is to be heard in the Magistrates' Court the maximum period of disqualification that can be imposed is 5 years; the period is 15 years if dealt with in the Crown Court).
2 The test of whether an offence is "in connection with the management of a company" is whether it has "some relevant factual connection with the management of the company". There is no further definition of "in connection with the management of a company", but the courts have shown a disposition to read it widely, i.e. not restricted to requirements imposed by the Companies Acts. Accordingly, "in connection with the management of a company" can include management of the affairs, activities and business of a company.
3 This provision would for instance apply to offences by directors and managers under section 37 HSWA, but is not restricted to such cases. It could apply to other offences by such persons under other sections of HSWA and Regulations, or to offences by other persons. It should be noted that the power is to disqualify any person - not just one who is an existing company director. The criterion is whether an indictable offence by a person can reasonably be considered as having some connection to the management of a company - including its affairs, business and activities. The test is the activity, not the nominal status of the individual.
4 The power to disqualify a person from being a director of a company is an important power that is available to courts in certain circumstances. It is for the court to decide if it wishes to exercise its power of disqualification, and the prosecution should not prejudge the issue. HSC's Enforcement Policy Statement indicates that disqualification should be sought "where appropriate". It is considered that it is appropriate for the court to consider disqualification in all cases where the law makes provision for it.
5 Therefore, in all cases where an individual is prosecuted for an indictable offence, where the offence is in connection with the management of a company, the court should be reminded that it has the power to disqualify under section 2(1) of the Company Directors Disqualification Act 1986. (Legal Adviser's Office should be consulted, through the usual channels, only where there is some doubt as to whether an offence is "in connection with the management of a company").
6 Whoever is presenting a 'guilty' plea in a relevant HSE case should, in conclusion, point out to the court that it has the power to disqualify as it appears to the prosecution that the offence was in connection with the management of a company, in that it involved the management of the affairs of the company, i.e. the health and safety risks arising out of the conduct of its activities and affairs.
7 This applies to all HSE prosecutors, e.g. Inspectors presenting 'guilty' pleas in Magistrates' Courts, Legal Adviser's Office conducting cases under the terms of ILO, Solicitor Agents, and Counsel. The provisions apply equally in Scotland, where reference to this power, and to HSE's approach as set out above, should be included in the papers submitted to the Procurator Fiscal's office.