Prosecution - Stage 1: Consider prosecution

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

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

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:

Independent legal oversight

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

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

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
• the 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

In England and Wales 

• If the incident resulted in a fatality, clearly explain to potential defendants, other enforcement authorities, bereaved family members, coroner that the prosecution decision will be reviewed if new evidence comes to light at the Coroner's inquest which materially affects our decision

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