Prosecution
Stage 1: Consider prosecution
Step
1.1
For: Investigating inspector in England and Wales, and Scotland
Are the requirements for a prosecution met?
Where applying the principles of the EMM leads to a potential
prosecution, consider whether the requirements for a prosecution are met
by:
- evaluating all the admissible evidence within 15 working days of completion
of evidence collection and considering whether it is sufficient for
there to be a realistic prospect of conviction and if not, the
feasibility of obtaining additional evidence
- applying the principles of the HSC Enforcement Policy Statement taking
particular account of the expectation of prosecution following a fatal
accident and whether the police and Crown Prosecution Service are considering legal action
- establishing who are the potential defendant(s) and what is their
legal status
- determining the most appropriate charges which will reflect the seriousness
of the offence, allow the case to be presented in a clear and simple
way and give the court adequate sentencing powers
- consulting as appropriate within HSE at any stage where advice is needed
on the law, policy or prosecution procedures
- consulting, where applicable, the account holder for a multi site
dutyholder, or another part of HSE where regulatory responsibilities
for the site are shared
- consulting with other enforcing/investigating agencies where this
is appropriate or required by a memorandum of understanding, etc
For further guidance, please see:
For guidance on Crown bodies, please see:
For NSD guidance on liaising with other agencies, please see:
In England and Wales, now go to step 1.2
In Scotland, now go to step 1.3
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Step
1.2
For: Investigating inspector in England and Wales only
Have all relevant criteria been considered?
In every case:
- discuss any evidential difficulties with line manager and decide
if additional information is required and obtainable
- apply the criteria described in the Crown Prosecution Service Code
for Crown Prosecutors
For guidance on this, please see:
In the case of a fatality:
- ensure any information that may assist the police in considering serious criminal offences, including manslaughter, has been passed to them
and seek a timely decision from them
Where the case is likely to meet the criteria for independent
legal oversight:
- discuss any difficult evidential issues with Legal Adviser's Office
For guidance on this, please see:
Note: Treat the repetition of a breach that was previously
the subject of a formal caution in the same way as the failure to comply
with an enforcement notice
If consideration of all the criteria in steps 1.1 and 1.2 points to
a prosecution:
go to step 2.1
If the assessment of the criteria does not support a prosecution:
go to step 1.4
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Step
1.3
For: Investigating inspector and line manager in Scotland only
Have all relevant criteria been considered?
In every case:
- discuss with line manager and decide if additional information is
required, and when an Inspector's Report should be prepared and submitted
- apply the criteria described in the Prosecution Code of the Crown
Office and Procurator Fiscal Service
- consider need to consult the Procurator Fiscal, particularly regarding
a work related death
For further guidance, please see:
If consideration of all the criteria in steps 1.1 and 1.3 points
to a prosecution:
go to step 2.1
If the assessment of the criteria does not support a prosecution:
go to step 1.4
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Step
1.4
For: Investigating inspector and line manager in England and Wales
and Scotland
Are the requirements for a prosecution not met?
Where the initial assessment indicates the tests for prosecution
may not be met:
- discuss fully with line manager and determine if additional information
can be obtained to support a prosecution
In the case of a work-related death:
- refer also to a Band 1 before agreeing the action that will be taken
If the decision is not to prosecute as there is insufficient evidence
and/or a prosecution is deemed not to be in the public interest:
- record reason(s) for decision
And inform:
- all potential defendants and any other prosecuting agency within 5
working days of making the decision, and as soon as possible afterwards
- any injured person/bereaved family/employee/safety representative
and provide a general explanation
of the reasons for not proceeding (eg the circumstances did not meet
the principles of the HSC Enforcement Policy Statement) and offer
to discuss the matter further if they require more information
And.
- record all significant contacts
In Scotland, clearly explain to all interested parties:
- that whilst HSE are not submitting a report to the Procurator Fiscal,
the Fiscal has the right to carry out their own investigation and take
any action they see fit
