On 29 September 2020 it was announced that the Ministry of Defence (“MoD”) had accepted a Crown Censure from the Health and Safety Executive (“HSE”) after a 26 year old marine died during a training exercise.

Marine Benjamin McQueen was part of a training exercise at Portland Harbour in Dorset on 14 November 2018 when the incident occurred. After becoming separated from other divers, McQueen was pronounced dead despite efforts to save him.

Improvement Notices

On 25 February 2019 the MoD was served with two Crown Improvement Notices in relation to their failure to conduct suitable and sufficient risk assessments for the exercise. A Crown Improvement Notice is the non-statutory equivalent of improvement notices the HSE can impose under section 21 of the Health and Safety at Work Act 1974 (“HSWA”). Crown bodies are exempt from enforcement provisions under the HSWA however they remain subject to the same duties to uphold health and safety legislation as the private sector. Crown Improvement Notices therefore provide the HSE with the power to require a Crown body to improve its procedures, though such notices are not legally binding and the Crown cannot be prosecuted for failing to comply (s.48(1) HSWA). Here, the MoD complied with the improvement notice by 12 March 2019, within the normal 21 days required.

Crown Censure

Over a year later a Crown Censure was accepted in relation to this incident. A Censure is a mechanism used by the HSE to formally show that, but for Crown immunity, there would have been sufficient evidence to prosecute the public body. The process starts with the HSE notifying the Crown body that they consider a Censure should be administered, alongside the evidence on which they rely upon to show that, had the incident occurred within the private sector, they would have been able to bring a prosecution. If the Censure is accepted by the Crown body, as occurred here, it will become a matter of public record.

Despite Crown Censures remaining a relatively rarely used tool, the MoD accepted two within the space of a month. The second related to an accident involving 27 year old Lance Corporal George Partridge, who died during another diving training course at Cheptsow on 26 March 2018. There have been 38 HSE Censures accepted since 1 April 1999, a number of which involved the MoD but also the Highways Agency, the UK Border Agency and HM Prison Service.