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23 April 2004

Dear Colleague

Duties of the Person Responsible

As you may be aware, the Court of Appeal recently considered whether a Person Responsible (PR) is a person who, as a matter of law, "keeps" etc the embryos at a licensed centre with the result that regardless of the facts of a particular case, he or she would have criminal liability for the criminal acts or omissions of a professional colleague at a licensed centre, under the Human Fertilisation and Embryology Act 1990 (the Act). I enclose a copy of the judgement for your information.

The appeal followed the acquittal of a PR who was prosecuted, on the decision of the crown prosecution service, for "keeping an embryo except in pursuance of a licence", contrary to Sections 3(1)(b) and 41(2)(a) of the Act. The facts were that the PR in question had no knowledge of the breaches of the Act committed by the embryologist at the centre. The trial judge ruled that there was no case to answer and the PR was acquitted.

The Crown appealed the judge's decision. The Court of Appeal, following the trial judge, found that if a PR actually keeps or uses an embryo in circumstances not covered by a licence or participates in such activities by someone else he or she would be liable to criminal prosecution but the PR cannot be criminally liable simply by virtue of his appointment. In other words the PR is not deemed to be the "keeper" of the embryos if the evidence is that he or she knew nothing about the embryologist's misdeeds in relation to the keeping of the embryos. The Court of Appeal said it was clear from the Act that if the PR does not comply with the conditions of the licence, for example to secure that proper arrangements are made for the keeping of embryos, this may result in a revocation of the licence. In other words the PR's activities are controlled through the regulatory mechanism, unless actual knowledge or participation in criminal breaches of the Act are proved.

I hope this clarifies the situation regarding the criminal liabilities of the Person Responsible at licensed centres. However, if you have any questions please contact Frances Clift on 020 7291 8212 or at frances.clift@hfea.gov.uk.

Yours sincerely
 
Angela McNab
Chief Executive

Page last updated: 24 August 2012

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