This procedure describes how HSE carries out the process of prosecuting, which differs in England/Wales and Scotland: from considering and approving a prosecution report, through preparing for, and attending court, where applicable, to post-court action.
To provide a common, transparent procedure for HSE's Operations Group staff when prosecution is under consideration
The procedure covers the assessment of the available evidence, the preparation of a prosecution report, its appraisal, and if approved, its referral to the Procurator Fiscal (in Scotland) or the instigation of legal proceedings (in England and Wales), the legal process followed in England and Wales (excluding appeals) and post-court action, including contact with the dutyholder
HSE will apply the principles laid down in the HSC's Enforcement Policy Statement to ensure that enforcement action is proportional to the health and safety risks and the seriousness of the breach
Prosecution within this procedure is the taking of punitive action against a dutyholder following a decision making process which is impartial, justified and procedurally correct.
An Approval Officer has the authority to approve a prosecution, will be at Band 2 level or above, have the necessary legal competencies to thoroughly assess a prosecution report in a fair, independent and objective way and meet the other criteria described at Stage 3 of this procedure.
A Litigation Officer is an administrator who has received appropriate training to undertake administrative actions relating to the prosecution process, under the instruction and guidance of either an inspector or a solicitor agent.
Line managers/Approval Officers should exercise discretion and professional judgement when undertaking their allotted tasks within this procedure and ensure decisions to prosecute are in line with HSC's Enforcement Policy Statement.
Inspectors should be alert for situations that may potentially justify punitive action, and where applying the principles of the EMM upholds their opinion, instigate this procedure to determine whether prosecution will be taken
Line managers should:
- provide guidance and advice where needed on lines of enquiry
- act as Approval Officer if appropriate and where their independence can be assured
- be alert to situations that may meet the criteria for ILO consideration
- ensure the disclosure of information process is organised effectively
and in FOD:
- ensure litigation officers receive appropriate training and are competent in their role
- as Band 2 line manager, make the decision if they do not want the litigation officer to be involved in the administrative action relating to a particular case
- keep their line manager regularly updated on situations that have the potential for prosecution and may require submission for ILO
- follow the steps in the procedure and meet the performance standards set and in FOD instruct and guide the litigation oficer in following the appropriate administrative actions
- draft correctly formatted prosecution reports to support and assist the subsequent approval process
- keep their line manager updated on other contentious, problematic or sensitive issues, or those which may attract strong public or media interest or concern
- inform their line manager if any performance standard is not likely to be met and agree a revised target
Litigation officers should:
- follow the administrative steps in the procedure as instructed and guided by inspectors/solicitor agents and meet the performance standards
- keep the inspector/solicitor agent informed of any problems or sensitive issues
- inform their line manager if any performance standard is not likely to be met and agree a revised target.
An overview of the procedure is provided in the attached flowchart [72kb]
Line managers should ensure, via normal management activity, that those involved in operating this procedure carry out their responsibilities in line with the standards and timescales described. However, they should make sufficient documented checks to satisfy themselves, and to prove to any subsequent audits, that the procedure is being operated correctly