What is crown censure, when it is applied and the role of the HSE?
In May 2024, the Health and Safety Executive (HSE) issued the Ministry of Defence (MOD) with a Crown Censure and in this blog, we are going to look at Crown Censure, what it is and when it can be applied.
Introduction
Crown Censure and the HSE
Crown employers and immunity
Crown censure procedure
Exclusion of representatives from formal hearings
The hearing
Appealing a Crown censure
Summary – Why Crown censure is important
Introduction
In the United Kingdom, The Crown cannot be prosecuted for breaches of the law and while immunity from prosecution may be a cause for concern, there are procedures in place for holding The Crown to account, one of those being censured in respect of offences which would have led to a prosecution. Commonly known as Crown Censure.
Crown Censure and the HSE
The Crown has no exemption from the Health and Safety at Work Act including all relevant statutory provisions. However, it cannot be prosecuted for breaches of the Health and Safety at Work Act or failure to comply with improvement or prohibition notices. In cases were the HSE deem it appropriate, they can seek approval for a Crown Censure to be applied to cases that meet the criteria for prosecution.
Crown censure is an administrative procedure, whereby HSE may summon a Crown employer to be censured for a breach of the Act or a subordinate regulation which, but for Crown Immunity, would have led to prosecution with a realistic prospect of conviction.
HSE, 2024
Crown censure can applied to all Crown employers including Government Departments, Next Steps Executive Agencies and some other Organisations sponsored by Departments.
Crown employers and immunity
While not an exhaustive list, the list of Crown employers below gives an insight into the organisations and departments immune from prosecution. Some may seem an obvious choice for immunity and others less so.
MOD Royal Navy
Ministry of Défense
MOD Army
MOD RAF
UK Border Agency
Highways Agency
Historic Buildings and Monuments Commission
HM Prison and Probation Service
Health and Safety Laboratories
Department for Education and Skills
Royal Mint
Centre for Environment, Fisheries and Aquaculture Science
Scottish Prison
HM Revenue & Customs
Crown censure procedure
Any case that has the possibility of being subject to Crown censure is treated like any other case that the HSE would investigate and will go through the same process of investigation. This includes failing to comply with a crown notice such as an improvement notice, prohibition (immediate) and prohibition (deferred) and accidents, incidents and unplanned events in the workplace.
On conclusion of the investigation, an approval officer will then have to satisfy themselves that if it wasn’t for the Crown employer having Crown immunity, there would be a realistic chance of a conviction, based on all suitable and sufficient evidence gathered during the investigation.
Once satisfied that a Crown censure should be administered, the HSE will then notify the Crown body (employer) in advance of the censure, setting out all the evidence against the Crown body. The notification will also give opportunity for the Crown body to provide a written response prior to a formal hearing.
Prior to a formal hearing of the facts, the HSE will invite all relevant trade union/s and safety representative/s to observe the hearing or make any necessary arrangements for the invitation to be extended to the Crown body. It is important to note that in the event of a formal hearing involving a Crown body, witnesses will not be called.
Exclusion of representatives from formal hearings
In all cases relating to Crown bodies/employers, the HSE must make carful consideration as to whether trade union representatives or safety representatives should be excluded from the hearing.
Factors to consider are:
The possibility of national security being harmed.
Any relevant information relating to an individual who has not given consent to disclose their identity.
If there an existing prohibition on the disclosure of information relating to the case that’s under enactment, rule of law or non-statutory code.
In most cases it is reasonable to assume that the considerations outlined above will apply in the most part to the Ministry of Defence, Government security agencies/ services and any other Crown employer who’s activities impact the national interest.
The hearing
On the day of the hearing, the meeting will be chaired by a senior HSE inspector with the responsibility for minuting the hearing falling to the HSE. A formal record must be produced by the HSE and it must be distributed to safety representatives and trade unions involved and if necessary, wider distribution to other interested parties may be permitted and this will be decided on a case by case basis.
If the Crown body agrees with the findings of the HSE, the HSE will formally notify the body or department and it is then the responsibility of the body or department to notify the Minster responsible.
Threader, the censure will become a matter for public record.
Appealing a Crown censure
The Crown body may not agree with the HSE or with the sufficiency of the evidence put forward. This will lead to the Crown body being invited to make further representations to the HSE, typically the head of the division within the HSE will become involved at this stage and they will be responsible for reviewing the case.
If no representations are received, the censure will be recorded and the head of the HSE division will review case. If the HSE conclude that a decision to prosecute would have been justified, if not for immunity, the Chief executive of the HSE will write to the permanent who supports the minister for the department and ask the permanent secretary to seek agreement to the censure.
If agreed, the censure becomes a matter for public record.
Summary – Why Crown censure is important.
A Crown censure is the maximum sanction which the HSE can bring against a government body that is immune from prosecution and while there is no financial penalty for the body subject to the Crown censure, it is an official record of the significant failings by the government body in question and its inability to meet the legal standards laid down in the Health and Safety at work Act and supporting regulations.
Like any other employer, all Crown bodies that have immunity from prosecution still have a duty to minimise danger and ensure the health safety and welfare of all its employees.
Immunity from prosecution does not equate to immunity form moral, legal and ethical responsibilities to employees. It is also important that those impacted by an accident, incident or unplanned event are assured that the strongest possible message is sent to the Crown department or employer involved and that the issue becomes a matter of public record.
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