From
10th September 2001, HSE’s London and South East
Region began to pilot a new ‘Prosecution Branch’
in order to provide independent legal oversight of its
prosecution decisions. It lasted a year before it was
disbanded as a result of lack of funds.
The Pilot Project came about as a result of an internal
HSE review of its own prosecution policy. To read about
what the review said about the pilot project, click
here
All decisions made by HSE inspectors to prosecute had
to be referred to the Prosecution Branch. In addition,
all decisions not to prosecute following a work-related
death were also referred to it.
The Branch was staffed with 4 lawyers, 3 law clerks,
a senior (band 2) Inspector and an administrator
The Prosecution was set up as a result of a “Prosecution
Review” set up by the HSE in December 2000 that
had recommended that independent legal oversight of
prosecution decisions should be introduced throughout
the organisation.
The Review was heavily informed by the Philips and Gower-Hammond
Report. However it was decided that first a pilot project
should be introduced in London for a period of a year
to assess what would be the likely financial costs of
such a move, David Eves, Deputy Director General, who
set up the review envisaged that roll out would follow
on in 2003/2004.”
This page discusses this Prosecution Pilot and how effective
it proved to be. This page draws heavily from an evaluation
undertaken by the HSE into one year of the Pilot’s
activities before it was disbanded due to lack of funding.
To download the whole evaluation, click
here (word)
Work
Completed by the Prosecution Pilot
The Evaluation set out the work that was completed
by the Prosecution Branch during the year
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Over
the course of the initial 12 months, the Prosecution
Branch received a total of 81 prosecution cases
of which 37 have been completed with a 100% success
rate. Of these 37 cases, 2 were defended and 4
had two defendants. Of the 44 ongoing prosecution
cases, 4 have initially indicated not-guilty pleas. |
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The
branch has also been heavily involved in providing
advice to the joint HSE/British Transport Police
investigation teams, and considering prosecutions
in close liaison with Crown Prosecution Service
(CPS) following the major rail accidents at Ladbroke
Grove, Hatfield, and Potters Bar. This work has
also involved providing advice to the HSC Investigation
Boards into the incidents at Hatfield and Potter
Bar, and also dealing with related civil actions
taken against HSE. |
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The
branch has also been used as a source of early
legal advice for investigations on which a decision
to prosecute had not yet been taken. At the end
of the 12 month period the branch had responded
to 30 “substantial” requests for advice
for which files have been raised, and is dealing
with a further 15 requests. In addition the branch
has provided 155 written and 67 telephone advices
on less substantial issues, which did not require
files to be raised. This work has often been at
short notice and covering novel points of law.
Some issues have been particularly complex and,
therefore, time consuming. There is scope for
reviewing and promulgating some of this advice
more widely. |
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The
branch has also completed reviews of 39 investigations
into work-related fatalities for which prosecution
was not proposed, and has dealt with 2 appeals
against Notices to the Employment Tribunal, both
of which were withdrawn. |
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One
area of particular importance has been the work
of the Branch with HSE’s Press Office, with
which the branch has developed a close working
relationship. This has enabled often difficult
media/legal issues to be dealt with at very short
notice. |
Achievements
of the Pilot
According to the Evaluation report, there have been
the following achievements:
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The
formation of the Prosecution Branch created a
separation between the investigation and prosecution
processes to provide independent legal oversight
as recommended in the Philips and Gower Hammond
reports. |
| • |
All
prosecutions completed had been successful, with
5.4% of cases (2 of 37) being defended. |
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Tighter
controls of costs monitoring and recovery had
been introduced, with 90% of cases having full
costs as claimed awarded by the courts, totalling
over £96,000. |
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An
agreement was reached with the Greater London
Magistrates’ Court Authority whereby it was
possible to have all Greater London area prosecutions
listed at City of London Magistrates’ Court
in the first instance. This had resulted in savings
in time and resources, and had enabled a very
good working relationship to be developed between
the Branch and the Court. HSE cases are committed
to the Old Bailey for sentence, thus, according
to the HSE “raising their profile in the
eyes of defendants, the public, and the criminal
justice system”. |
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The
Branch was closely involved in the planning of
the London construction blitz and new cost-effective
ways of gathering evidence and submitting abbreviated
files for prosecution were trialed with “good
results”. Ten defendants were prosecuted
within only two months of the completion of the
blitz, with 9 guilty pleas resulting in total
fines of £28,050 for non-accident offences. |
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The
Branch has utilised skilled law clerks for a broad
range of tasks, the first time this has been done
in HSE, ensuring work is carried out at the “right
level”. |
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The
Branch has been able to run training courses for
Inspectors and its own staff on legal issues without
the need to employ external providers. |
Drawbacks?
The evaluations do not indicate any clear drawbacks
although they point to the following issues which
require further consideration.
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Time
There was some indication that the Pilot resulted
in “an additional burden on Inspectors
in having to copy papers to the branch and,
in some cases, gather further evidence when
requested by the reviewing lawyer”.
However,
there was a time saving in that there is no
longer a need to prepare and serve summonses,
advance information and Friskies schedules,
and, in the majority of cases, an opening court
speech.
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Delay
Some Inspectors has commented on the delay caused
by the processing of cases by the Branch and,
it has been claimed, this adds in the region of
4-6 weeks to the process. According to the Evaluation,
the “Branch manager accepted that some cases
could be processed more swiftly than at present,
but some of the delays are inherent in having
a system of independent legal oversight”.
The assessment also said that there was a wider
issue in the overall delay involving the investigative
process.
There are a number of stages in the process which
can all build in delay including: arranging a
mutually convenient date for a case conference;
requests by the branch for all relevant paperwork
and/or additional evidence; agreeing alternative/additional
charges; and the preparation and laying of agreed
informations. I
the evaluation states that "it is worth reiterating
that time spent in correspondence with the defence
about the evidence and pleas can serve to reduce
overall delays, and thus the overall cost of the
case".
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Tensions
The final decision to prosecute in HSE has always
been taken by inspectors’ line managers,
and s.38 HSWA provides that only an inspector
may institute proceedings for an offence under
any of the relevant statutory provisions, with
inspectors traditionally acting as both investigator
and prosecutor. The introduction of the branch
has challenged this traditional approach and
has, almost unavoidably, resulted in tensions
between what inspectors still regard as a solicitor/client
relationship and the principle of independent
legal oversight, which the branch has been put
in place to uphold. A procedure was put in place
so that where there were areas of disagreement
between lawyers and inspectors these could be
resolved through line management, with a final
decision being taken at Band 1 level. In
The
evaluation states that "in the event, issues
have been resolved by discussion between the
two parties and the line management route has
not been used."
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Consistency
No evidence has been gathered to demonstrate
that the Branch has improved “internal
consistency in the decision making process”.
Indeed it acknowledged that there were no objective
measures currently available to demonstrate
such an improvement. The assessment also reported
that there were, however, no reported negative
indications.
The
assessment stated that this was an area in which
further work needs to be undertaken to accurately
demonstrate any added value that is brought
to the prosecution process. "Possible methods
for gathering this evidence include peer review
of solicitors decisions, consideration of a
limited number of cases by all solicitors individually,
and informal feedback from inspectors. There
is a need to examine similar systems. This is
an issue which requires further consideration.
It is possible that decision making will be
influenced in the longer term with the decision
of Inspectors and lawyers being based on the
same criteria with no local variations, as has
happened with the police and the CPS. "
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Use
of Solicitor Agents
The lower than expected level of casework has
meant that there has been little opportunity to
explore the benefits of using solicitor agents,
particularly in geographically remote areas. According
to the assessment, “those that have been
instructed have performed successfully in accordance
with clear instructions and the full cost has
been recovered from the defendant on conviction.”
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Role
of Branch 'Inspector"
The contribution of the Band 2 Inspector to the
Branch could not be fully explored. Branch lawyers
felt that the inspector appointed to the team
made an extremely valuable contribution in terms
of the health and safety expertise which she brought
to the Branch, especially at a time when the lawyers
were new to HSE work. On the downside, some inspectors
queried the weight of the advice from a Band 2
inspector on the branch when a case would have
already been approved by their own Band 2 Principal
Inspector. However, the potential for this role
was not fully explored. It remains important to
further evaluate, firstly, if this is a useful
post to have on the branch, and secondly, whether
such a post is most useful as a short-term measure
during the initial start-up of a branch or if
there are significant benefits of it being a permanent
position. |
Conclusion
The view of the branch manager is that the experience
over the initial 12 months of the pilot has demonstrated
that independent legal oversight is not required for
all HSE cases. Further, HSE’s present financial
situation is such that national roll out of the pilot
model is not possible within existing resources. As
such, a prosecution improvement project has been set
up to take forward the lessons from the pilot and
to make recommendations on the future management of
HSE’s prosecutions. This is a joint Operations
Group and Solicitor’s Office project and is due
to report by 31st January 2003.
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