Criminal Liability in Regulatory Contexts Responses - Law ...

HSE
1.1296 We are opposed to this proposal. Section 37 HSWA explicitly extends liability to a
director, manager, secretary or similar officer for neglect as well as consent or
connivance. Removing “neglect” would leave little to address wilful blindness of
those in the company whose actions inform the actions of the company. Without
a neglect provision, there is no deterrent where Directors may deliberately fail to
inform themselves of facts which they should be informing themselves, to avoid a
charge of consent or connivance. HSE encourages strong leadership in
organisations. This is essential to achieving health and safety outcomes.
Reducing duties on individual directors would be detrimental, as it is by active
engagement at Board level, visibility in risk management of their businesses,
planning and monitoring performance, that directors have significant influence on
behaviour and attitude in the workplace.
1.1297 Q3: HSWA already addre4sses this proposal as currently drafted with the
wording provided for HSWA s37. Retaining the current wording would meet this
proposal.
1.1298 Q$: As par to the consideration of whether the standard reached by the employer
met that which would be expected, HSE would consider what it was reasonable
for the business to have done in the circumstances where a task had been
delegated to someone within the business. For example, where an employee has
received training and instruction, is competent, has been supervised
appropriately with work monitored where appropriate, and then fails to act in a
manner that is safe, thus fiving risk to risk, HSE would, dependent upon the
evidence available of what steps the employer had taken, look to potential
breaches of HSWA s7. However, duties themselves cannot be delegated under
HSWA. A further point is that under EU law duties are generally owed by
employers and could not be delegated away as is the employer who owes the
duty.
Chris Williamson MP
1.1299 Should be solidified. If a director has knowledge of criminal activity he should be
criminally liable for that activity if he took no steps to prevent the criminal actions
of his partners or employees.
1.1300 The delegation doctrine should be limited. If the director has to mens rea then he
should not be made to be criminally liable. This is too harsh a punishment for
small business owners who are reckless or at worst negligent with regards the
choice of who to entrust their businesses to.
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