Identifying the defendant
Introduction
1. This section outlines the various legal entities that, in addition to an individual, may be prosecuted for health and safety offences. It also highlights the main legal principles and procedures that affect different legal entities.
2. A defendant in a health and safety prosecution is commonly not an individual. You may also investigate the following, which it may or may not be possible for you to prosecute:
- partnerships;
- limited liability partnerships;
- companies (incorporated bodies, usually with limited liability);
- individuals using business names;
- trusts;
- unincorporated associations;
- charities;
- school governors.
3. It is important to determine the legal status of a proposed defendant. A company or other body corporate may be prosecuted in its own right as it has a distinct legal personality. In other cases, it will be necessary to proceed against the individual(s) responsible for the undertaking, for example the partners in a partnership.
4. It is also important to be exact in identifying the correct defendant. To include the wrong defendant on the information or summons will invalidate the document and such an error is normally incapable of being corrected by amendment. A new information or summons will need to be issued.
5. There are powers under sections 7, 8, 36 and 37 HSWA to proceed against, among others, employees and directors in addition to, or instead of, the employer.
6. The Enforcement Policy Statement requires HSE to identify and prosecute (or recommend prosecution of) individuals where warranted. In deciding whether it is warranted, you should, in particular, consider the management chain and the role played by individual directors and managers. Action should be taken where the inspection or investigation reveals that the offence was committed with their consent or connivance or was attributable to neglect on their part.
7. Where an individual has been convicted of an indictable offence in connection with the management of a company, the court has the power to make a disqualification order under the Company Directors Disqualification Act 1986. More information can be found on this in the section on Sentencing and Costs and OC130/8 on Prosecuting Individuals, in particular Appendix 6.