Director prosecution thrown out in Crown Court

A recent Crown Court health and safety prosecution brought by a local authority’s environmental health department has been dismissed by a judge. In an unusual procedural application, the Crown Court Recorder refused to allow three health and safety charges against a company director to proceed and stopped the case from going before a jury at a trial which had been scheduled for later this year.

Chris Green is a partner at Keoghs law firm. Photograph: Keoghs

The case raises real issues for owners and directors of businesses where adverse events occur in work-related incidents and the principles of the judge’s ruling apply to all health and safety prosecutions brought by the Health and Safety Executive (HSE), most legislation enforced by local authority inspectors, and cases of alleged breaches of environmental laws brought by the Environment Agency.

The key message is that a director is not necessarily liable for offences which take place inside their business simply by virtue of being a director or solely by holding that role, even if that person is registered as having significant control in the business on the Companies House website.

The facts were as follows. The company operated a chain of restaurants and so for matters of food safety, food labelling and health and safety, the relevant London Borough Council was the enforcing authority rather than HSE. The council’s Environmental Health Officer (EHO) was an appointed Inspector of Health and Safety under section 19 of the Health and Safety at Work Act 1974 and so had been authorised to exercise all the same powers contained in the Act as are held by HSE.

One day in 2021, an EHO arrived at the premises unannounced and conducted a routine food hygiene inspection. The EHO discovered a number of issues relating to the condition of the premises and immediately issued an emergency notice prohibiting the business from continuing until the site was made safe.

Importantly, the EHO spoke only to a junior general manager and kitchen chef on-site, whose job descriptions required them to keep the site clean, safe and in good repair. The notices were handed to the employees but addressed to the operating company, and required various specified works to be undertaken in order to bring the premises up to a compliant safety standard and therefore permit it to reopen.

Company delegated operations to managers and staff on-site

The employees called their area manager who then attended the premises, dealt with the inspectors and arranged for improvement works to be carried out to the EHO’s satisfaction. Therefore, the business was allowed to resume operation. The company had only one director, who was not responsible for the day-to-day running of the site (or required to be responsible), had no knowledge of the conditions complained of and would not be expected to have personal operational knowledge of how the premises was being run. There is no specific legal requirement on him to do any of this and the company’s own procedures delegated the operational function to those who were based on-site and who actually had the means of controlling conditions and ensuring health and safety.

The council invited the director, area manager and the company (through an authorised representative) to attend a formal interview under caution pursuant to the provisions of the Police and Criminal Evidence Act 1984. They were therefore treating both the business and two of its senior personnel as suspects – i.e. suspected of having personally committed offences.

The inspector wrote to all three parties to say she suspected that the conditions found represented a breach of safety regulations and that the offences had been committed with the consent, connivance and neglect of the director and area manager. No further written information was provided about why, or on what basis the inspector had reached that conclusion and no evidence to that effect was disclosed.

As a result, all three invitees declined to attend the interviews and instead the company sent written comments about the incident and how the internal procedures operated. The letter was sent from and on behalf of the company and was signed in that capacity by the director. It said that any unsafe conditions could only have been down to a localised failure by staff at that site to implement the company’s procedures, which had themselves been independently drafted and approved as legally compliant by a third-party auditing company.

The EHO alleged that even if there was no evidence that the director in fact knew that the conditions were unsafe, he should have been, or made himself aware. There is no such legal provision.

Request to drop charges against the director

A year went by and the company was prosecuted for eight offences alongside the director, who faced three allegations of in effect, bringing about the commission of the offences by the company.

As the lawyer from Keoghs law firm who was representing the company and director, I contacted the prosecuting lawyer in the council’s in-house legal department and requested that the case should be reviewed and the matter against the director be withdrawn for lack of evidence. The lawyer refused to do so, saying that the council was entitled to infer that the director had knowledge of the offence just because he was the sole director. I pointed out that this decision would result in costs being incurred by the company and director in having to defend allegations that were doomed to fail.

The case was transferred to the Crown Court and the defendant’s legal team issued an application for a hearing to argue that the case against the director should be dismissed. The director is of previous good character and had never been near a court of law. He attended and his matter was called before the court after a number of serious sexual and violent offenders’ cases had been heard in front of him. The defence referred to a number of previous reported cases which show that more evidence of the director’s actual involvement in the day-to-day operations of the business and the alleged safety failings would be required in order to prove the case and without it, or any legal basis for the jury to convict him, the case would need to be dismissed.

The judge agreed. There was no case to answer. The leading case of R v Chargot did not alter the legal position and did not in this case automatically mean that the actions of the company can be equated with the conduct of the director so as to make him criminally liable for how the activities of the company are conducted or how it operated. An ongoing application for the council to reimburse the director’s legal defence costs is currently before the court. 

Case could discourage nervous directors from getting involved in safety

In conclusion, safety practitioners will often want owners and directors of companies to lead safety from the top, be more personally involved and take on individual responsibility. Prosecutions such as this do nothing to encourage nervous directors to get involved in the safety management system at all, but it is important that they are careful without being too risk averse.

They need to be clear on how liability can attach and may need some assistance and professional advice about how best to avoid becoming a director in the dock. Further, when notices are served or summonses issued, they will need prompt specialist advice from experienced regulatory law experts to challenge inspectors’ decisions before things can quickly get out of hand and become more formal.

Chris Green is a partner at Keoghs law firm and a former prosecutor, who specialises in health, safety and regulatory cases and compliance. Contact him at:

T: 07714 673563

keoghs.co.uk/our-people/chris

[email protected]