Stage 3: Consideration of prosecution approval

Stage 3.1: Seek approval

This stage applies only to cases where the investigator recommends prosecution. Please see the Investigation procedure for actions required in cases where prosecution is not recommended.

Investigating Inspector / Litigation Officer

Submit completed report to Approval Officer as per Stage 2.2.

If prosecution costs are likely to be in excess of £50,000 then raise this with Division Finance Officer.

Note: In Scotland, where an incident results in a fatality, the final decision on enforcement action will not be taken until after the fatal accident inquiry.

• In England and Wales: Go to step 3.2
• In Scotland: Go to step 3.4

Stage 3.2 Consider approving: England and Wales

Approval officer (AO)

Prior to commencement of the Approval process:

• Ensure you can be fair, independent and objective in making the prosecution decision ie that you have not been too closely involved in directing, or taken part in the investigation process. Appendix 1 contains criteria to consider that could compromise your role as Approval Officer (AO).
• If your role as AO is compromised, discuss with the Senior Manager (usually your Line Manager) with a view to referring the case to another AO.
• In addition to any issues of fairness and independence, consider whether a Senior Manager should be notified / consulted on the case before approval for some other reason (see Appendix 2 and 3 for criteria on when and who to notify respectively). This will provide the Senior Manager with the opportunity to:
  (ii) discuss and consider the prosecution decision; or,
  (iii) assume responsibility for making the prosecution decision.

If the Senior Manager is making the final prosecution decision, the whole investigation file, including the unused material should be made available to the Senior Manager.

If the case is likely to be referred for Independent Legal Oversight post approval, contact Legal Advisors Office as soon as possible to enable relevant discussions and legal advice to commence at an early stage.

When approving cases:

• Take account of the general principles for enforcement decisions and the aims of the approval process.
• Ensure the EMM has been applied in the process of deciding to prosecute.
• Consider whether anyone else within HSE with regulatory responsibilities for the Duty Holder / site needs to be proactively informed of the case.
• Apply the Code for Crown Prosecutors' two stage test in strict order: only if the case meets the evidential test should the public interest test be applied.
• Record your reasoning in Part D of the combined Investigation / Prosecution Report or the Approval Officer's Considerations and Decision section of IMPACT.
• Discuss with the investigating inspector whether additional information can be obtained if the evidential/public interest tests have not been fully met.
• Confirm that all reasonable and relevant lines of enquiry have been pursued.
• Ensure any unused material that may undermine the prosecution case or may potentially assist the defence or might be relevant to sentencing has been identified and is taken into account during approval.
• In triable either way cases, decide whether the case should be heard in Magistrates or Crown Court. For offences committed after 12th March 2015 ie following the increase in levels of fines available to Magistrates, decide whether a District Judge should deal with any allocation decision, trial and sentencing hearing.  Guidance and relevant criteria can be found in the Enforcement Guide (England and Wales).

Senior Manager (B1 or above)

The Senior Manager should:

• When fulfilling the role of Approval Officer, review the investigation file, either relying on any analysis provided by the Normal Approval Officer (NAO), or where, the senior manager considers necessary, by reviewing the complete file to reach their own conclusions from the material (including evidence) provided.
• Complete Part D or equivalent of the combined Investigation / Prosecution Report, or by completion of the Band 1 Consideration and Decision section of IMPACT.

Performance standard

The investigation and prosecution report should usually be completed and an approval decision recorded:

• in cases not related to a fatal accident within 12 months of the date of the incident;
• in cases related to a fatal accident, within 12 months of assuming primacy.

Stage 3.3: After the decision

Approval officer

When a decision has been made:.

• Consider whether and who within HSE should be notified of the decision (Appendix 2 and 3 respectively), including all senior managers where the case is sensitive. If informed of the decision before any defendant(s), those informed should be reminded to apply discretion when communicating the prosecution decision further.
• Ensure victims have the opportunity to make a Victim Personal Statement in cases approved for prosecution.
• In exceptional circumstances consider whether a 'Simple Caution' should be offered to the Defendant as an appropriate and alternative response to prosecution. See 'Simple Caution' section of this procedure below.
• For Energy Division – Offshore consider notifications required in Offshore Intervention Guide.

If the incident resulted in a fatality:

• If the police / CPS have primacy and decide to prosecute for a serious criminal offence other than a health and safety offence, eg manslaughter, ensure that HSE has been consulted, and that CPS has fully considered pursuing health and safety offences against the same and/or another defendant.
• If HSE has primacy, consider whether the HSE prosecution should proceed before the Coroner's inquest.

For guidance on taking a prosecution before Coroner's Inquest (see OC165/10):

• Seek the views of a Senior Manager;
• if B1 agrees in principle, consult with all interested parties: police / CPS, the coroner and the bereaved;
• seek a view from Legal Adviser's Office;
• secure final approval from a Senior Manager; and,
• record the process and decisions in Work Related Deaths - Approval Officer's Considerations and Recommendation to Commence Legal Proceedings Before Inquest .

If the case appears to meet the criteria for independent legal oversight, seek confirmation from Legal Adviser's Office that they will accept it.

In FOD and HID:

Where a prosecution was approved:

• Pass relevant details and papers to the Litigation Officer (including form PA1).
• Ensure the investigating inspector notifies, and keeps the Litigation Officer regularly informed and updated with any changes relating to the case.
• Keep the case under review and reapply if necessary, the tests of the Code for Crown Prosecutors and record the reasons for continuing or discontinuing the case.

If a prosecution was not approved:

• Pass the papers back to the investigating inspector confirming any residual action to be taken in the relevant section of IMPACT or  combined Investigation / Prosecution report

For situations where there is sufficient change of circumstances to prompt a review of the prosecution decision, record the outcome of the review in either the combined Investigation / Prosecution Report or in Approval Officer's Considerations and Decision: Action taken Post Approval section of IMPACT.

Simple Cautions

If after applying the evidential and public interest tests, etc., prosecution would normally be approved but there are exceptional circumstances relating to the proposed defendant that outweigh the general public interest factors, you may, consider whether a 'Simple Caution' should be offered to the defendant as an appropriate and alternative response to prosecution. In such cases:

• Seek the agreement of a Senior Manager; and,
• if agreed mark the prosecution papers 'not approved, subject to acceptance of a formal caution'.

Litigation Officer

On COIN:

For cases where prosecution is proposed, and where they don't yet exist(1), open prosecution case(s), inputting the breach details  and the decision  date on the Prosecutions page (FOD and  HID).

Where prosecution case(s) have already been opened, amend the details accordingly.

(1) When early prosecution case related work is required for which HSE can seek to recover costs via the prosecution bill of costs (see stage 4.4), LOs should open the prosecution case at that point to allow time to be recorded against the prosecution case (see Stage 2.1)  

Now go to Stage 4: Prepare for court.

Stage 3.4: Consider approving: Scotland

Approval officer

When considering approval, ensure the prosecution report:

• is in accordance with HSE's Enforcement Policy Statement;
• reflects the formal application of the EMM;
• has appropriate draft charges substantiated by sufficient corroborative evidence;
• is compliant with the Prosecution Code of the Crown Office and Procurator Fiscal Service;
• takes account, where applicable, of the views of the 'Account Holder' for a multi-site duty holder
• includes the views of the DH or their representative; and,
• contains a contemporaneous record of the approval officer's reasons for their decision.

If the case is approved:

• record the decision on the prosecution report and on COIN;
• arrange for SCRO coding number;
• send the prosecution report to the Procurator Fiscal within 4 months of the date of the offence or the date when the offence came to HSE's notice; and,
• identify who else should be notified of the decision For guidance see Appendix 2 and 3

If the case relates to a fatal accident:

• continue to keep the Procurator Fiscal informed of HSE's investigation progress;
• send a report, or interim report, to the Procurator Fiscal by an agreed date, within the 3 month deadline allowed the Procurator Fiscal to report to the Crown Office

After the prosecution papers have been sent to the Prosecutor Fiscal:

• inform the dutyholder and victims that the report of the investigation has been sent to the Procurator Fiscal without indicating what HSE's recommendation was and record significant contacts on COIN. For further guidance see: WHSE's guidance on working with victims and bereaved families and Information for bereaved families from HSE
• monitor progress of the case by the Procurator Fiscal and assist as necessary. For guidance see: Enforcement Guide (Scotland) – Reporting to the Procurator Fiscal

On COIN:

• add notes to the Prosecution case, and amend (as necessary) the Acts and Regulations, Breach Details and SCRO number on the Prosecutions page
• send a notification with the decision, amend the prosecution details accordingly, complete the SCRO number field. For guidance see: COIN Data Handbook - Prosecutions

When the court proceedings are completed:

• Go to step 6.1

If the decision is not to submit the report to Procurator Fiscal:

• record the decision on the prosecution report and on COIN
• inform the dutyholder and victims of this decision and record the significant contacts on COIN. For guidance see: HSE's guidance on working with victims and Information for bereaved families from HSE
• identify who else should be notified of this decision. For guidance see Appendix 2 and 3.

On COIN:

• add notes to the Prosecution case, amend the Breach Details on the Prosecutions page and close the case. For guidance see: COIN Data Handbook – Prosecutions

Next: Stage 4: Prepare for court

Stage 3.5: Decision not to prosecute following a fatal incident

Approval officer

• See Stage 1.3 and also the Investigation procedure for information.

Appendix 1: Criteria which may compromise the independence of an Approval Officer

Approval Officers must be fair, independent and objective when considering a prosecution decision and not be affected or influenced by improper or undue pressure from any source. Approval Officers should therefore not be closely involved in directing, or be taking part in the investigation process. However, they can, and should be involved, in advising the investigating inspector on lines of enquiry. Neither does the normal management role of Band 1 or Band 2 staff in monitoring the investigation work of inspectors compromise their ability to make the prosecution decision.

Approvals Officers should however consider the following criteria before approving prosecutions, if one or more of the criteria apply, consideration should be giving to appointing another AO.

Criteria

• has controlled and directed the investigation beyond performing the manager's role of ensuring the investigation was properly conducted and meets HSE's standards of performance;
• has been directly involved in securing evidence, such as assisting in taking witness statements or conducting or assisting in PACE interviews with potential defendants or their representatives;
• has had significant prior dealings with any potential defendants, eg as a result of contact on operational matters or through sector or other representational work;
• has become the "public face of HSE" as a result of direct and ongoing publicity following an incident, as distinct from simply an immediate media response following an incident;
• has become directly involved with the potential defendant at Board (or equivalent) level in agreeing remedial measures following an incident,[or has been subjected to a formal approach by a potential defendant or their legal representative to consider alternative action to that of prosecution], or
• has been closely involved with victims, their relatives or other agents acting on their behalf, eg discussing requests for HSE to take enforcement action beyond any initial expression of expectation that HSE will take such action.

Appendix 2: Table of criteria for deciding whether to notify a Senior Line Manager about a Case either prior to, or post Approval

The risks to be considered by the SeniorManager may be in relation to the decision to take, not to take, or losing a prosecution.

Separate criteria for considering whether a case requires Independent Legal Oversight (ILO) is provided by OC168/11.

Appendix 3: Table of who to notify in Specific and Non-Specific Cases about a Prosecution Decision

Introduction

The tables below identify:

• Specific cases where notification to a Senior Manager should be considered;
• None specific cases where the business risk to HSE and external impact should be considered; and,
• Others that may need to be made aware of a prosecution decision.

Others that may need to be made aware of a prosecution decision

1. Sector colleagues who may have an interest for: statistical analysis, technical interest, or to brief external contacts.
2. Senior Civil Servants or a Minister, particularly, in high profile cases which may require their response to questions about the investigation and/or prosecution.
3. Other enforcing authorities who may have be involved in the investigation or maintain an interest in the case.