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Prosecution
of Directors - HSE Policy
Appendix 2 of Operational Circular OC 130/8 sets out
the public interest factos that should be taken into
account when inspectors decide whether or not to prosecute.
| 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:
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the
matter was, in practice, clearly within
the director/manager’s effective control
-were 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. |
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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. |
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| 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. |
| 4 |
Prosecution
is intended to bring home to directors/managers
the extent of their responsibilities, and to bring
them to public account for their failings where
appropriate. Therefore the prosecution should
be seen by others - particularly by other directors/managers
with knowledge of the industry concerned - as
justified not only in legal terms but also as
a matter of practical judgment. |
| 5 |
We
need to avoid prosecutions (or any other actions)
that cause directors/managers to refuse explicit
responsibility for oversight of occupational health
and safety, that lead to safety policies and job
descriptions being written defensively or to excessive
delegation of responsibility. It is important
that these points are seen in context and that
they are not considered disproportionately." |
| 6
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.Section
37 cases should not be taken against directors/managers
just because a company has closed down. We need
to look at the circumstances of the closure, whether
a case against an individual manager is warranted
in any case, and also if there is evidence that
the closure may have been a deliberate attempt
to avoid prosecution. |
| 7 |
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. |
There
is also the question of how the HSE should deal with
small companies, where the company directors own the
company themselves. In appendix 4, para 11, it is
stated.
"In
general we seek to avoid cases against both a company
and sole directors, who are also the principal owners
of the company, in circumstances where this would
be regarded as prosecuting the same person twice.
In this situation, you need to judge whether prosecution
is more warranted against the individual or the
company."
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