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In
September, the HSE agreed to set up a system that
would provide independent legal oversight (ILO) to
the “HSE’s most serious criminal casework”
throughout the HSE.
This
is due to start on 8 April 2004
This
development is not an extension of the now-disbanded
London based Pilot Project which had provided legal
oversight to all HSE’s prosecutions.
The new legal oversight will be provided by the existing
Solicitor’s office for only a selected number
of cases. The This will require the recruitment of
2 extra lawyers and a clerk: it should be noted that
the Pilot project in London alone had used 4 news
lawyer and 3 law clerks.
It
is expected that each year this will involve about
80 cases - less than a tenth of the total number of
prosecution cases.
It should be noted that the HSE accepts that its Solicitors
Office does not even have the funds to be able to
provide ILO to this limited number of cases. It says
that:
“We
anticipate that the Solicitor’s Office resource
will not initially be sufficient to handle all the
cases meeting the ILO criteria, either in-house
or through solicitor agents. Solicitor’s Office
will decide which cases to accept and which to pass
back to the ODD for progressing as non-ILO cases.”
In
addition to this, the HSE is planning a number of
new initiatives as a result of lessons learned from
the London Pilot project.
Index of Changes
| If
you want to To download the full instructions
to inspectors about the new plans, click
here, and also
here |
Independent Legal Oversight for
Serious cases
Six category of cases should be referred to HSE's
Solicitor's office for independent legal oversight.
These are:
| • |
Cases
of national importance or high public interest
Examples given by the HSE of these are:
| - |
All
section 14(2) investigations or inquiries
into the circumstances of the case; |
| - |
Where
the Executive has declared a major incident
under its corporate instructions; |
| - |
All
other potential prosecutions arising from
major incidents as defined at major hazard
installations (e.g. COMAH establishments,
offshore installations, major hazard pipelines);
|
| - |
All
potential NSD prosecutions involving serious
risk or radiation safety issues; |
| - |
A
case involving biological agents (pathogens
and genetically modified organisms); |
| - |
A
case where many members of the public may
have been put at risk. |
|
| • |
Where
HSE needs to defend health and safety legislation
or to manage the development of case law.
Examples given by the HSE of these are:
| - |
Cases
involving novel points of law of national
importance to HSE or its legislation (such
as a challenge under the Human Rights Act
to the compatibility of section 20 or section
40 of HSWA, or the unlawful use of section
20 powers); |
| - |
Cases
where either HSE proposes to appeal by way
of case stated, or the defendant is appealing
by way of case stated; |
| - |
Applications
for judicial review, whether by HSE, a duty
holder or a third party. Cases where judicial
review is threatened should also be referred. |
|
| • |
Cases
which impact upon wider issues of law and policy
Examples given by the HSE of these are:
| - |
Cases
where there is uncertainty about standards,
expertise or reasonable practicability,
where the decision on the case might undermine
the future enforcement of relevant standards;
|
| - |
Cases
which involve developing areas of HSC/HSE
policy (e.g. work related deaths on roads
and other issues at the boundaries of section
3 HSWA (probably for advice only rather
than conduct); |
| - |
Cases
in which there are cross cutting issues
of law or policy for HSE and other prosecuting
agencies or Government Departments (e.g.
Railtrack in Administration); |
|
| • |
Cases
which present difficulties or sensitivities on
evidential sufficiency or public interest.
Examples given by the HSE of these are:
| - |
Cases
which themselves involve or which are linked
to, politically sensitive issues (for example
where the prosecution of a public body may
call into question government policy); |
| - |
Where
HSE proposes to prosecute a police force
or fire brigade, particularly where the
public service imperative may be an issue;
|
| - |
Any
case in which there is a significant risk
of loss of liberty or livelihood on conviction
; |
| - |
Ý
Cases involving the same duty holder, where
there is a series of similar or related
incidents; |
| - |
Where
there are particularly complex issues arising
on the disclosure of unused material; |
| - |
Public
interest immunity issues. |
|
| • |
Cases
which require HSE to demonstrate prosecutorial
independence to maintain HSE’s reputation
for impartiality
Examples given by the HSE of these are:
| - |
Prosecutions
of duty holders with whom HSE has had a
significant prior role and where it is necessary
to demonstrate prosecutorial independence,
for example in permissioning regimes or
where there is a long history of close contact
between the investigating inspector and
the duty holder; |
| - |
Any
case involving the obstruction of an inspector
in the course of his or her duties; |
| - |
Cases
in which it is necessary to avoid an imputation
of local influence (for example, where the
duty holder is a close relative of an HSE
employee). |
|
| • |
Cases
involving joint working on enforcement with the
police and CPS.
Examples given by the HSE of these are:
Investigations by the police which are likely
to lead to potential prosecutions by the CPS for
a serious criminal offence and there are potential
allied health and safety offences. |
What
this means
At present no prosecution taken by the HSE have independent
legal oversight. (ILO). With these changes, all the
cases that fall into the above categories will do
so.
When an inspector is dealing with a case that falls
into one of the categories, the inspector should,
even before making a decision about whether or not
to prosecute, contact the Solicitors office for advice.
If subsequently a decision is then made to prosecute,
the inspector should then refer the case to the Solicitors
Office for it to handle.
HSE's
Solicitor's Office may subsequently instruct Solicitor
Agents to deal with the case, but even in such situations,
ILO will remain with Solicitors Office.
Back
Improved
System to increase 'Independence" of prosecution
Decision
At present there is an 'approval' system so that all
decisions to prosecute are 'approved' by either the
manager of the inspectors (The 'Principal' Inspector)
or in relation to certain cases, more senior managers..
At present there are no written guidelines to ensure
that whoever is making the final decision about whether
or not a prosecution should go ahead has not been
'compromised' by their involvement in the investigation
process.
It
is now being proposed that there will be new transparent
criteria - codifying existing informal arrangements
- that "identify when independence of the prosecutor
may be compromised." Where one or more of the
criteria is met cases will be transferred to another
senior inspector.
These
guidelines are supposed to apply to cases that are
not subject to independent legal oversight.
According to the HSE they are "intended to help ensure
that prosecution decisions involve an independent
review of the evidential sufficiency and public interest".
In
The
new instructions states that:
The
person making the prosecution decision must do so
in a fair, independent and objective way so that
they are not affected by improper or undue pressure
from any source. They should therefore not be closely
involved in directing, or be identified with, the
investigation process. However they can and should
be involved, if necessary, in advising the investigating
inspector on lines of enquiry. Neither does the
normal management role of band 1 or 2 staff in monitoring
the investigation work of inspectors compromise
their ability to make the prosecution decision.
The
guidelines set out criteria that any person involved
in 'approving' the process of prosecution should consider.
If they judge that one or more of the criteria apply
to them in a way that could compromise their independence
they should refer the case(s) to another approving
officer:
| • |
has
controlled and directed the investigation beyond
performing the manager’s role of ensuring
the investigation was properly conducted and meets
HSE’s standards of performance; |
| • |
has
been directly involved in securing evidence, such
as assisting in taking witness statements or conducting
or assisting in PACE interviews with potential
defendants or their representatives; |
| • |
have
had significant prior dealings with any potential
defendants, e.g. as a result of contact on operational
matters or through sector or other representational
work; |
| • |
has
become the “public face of HSE” as a
result of direct and ongoing publicity following
an incident, as distinct from simply an immediate
media response following an incident; |
| • |
has
become directly involved with the potential defendant
at Board (or equivalent) level in agreeing remedial
measures following an incident, [or has been subjected
to a formal approach by a potential defendant
or their legal representative to consider alternative
action to that of prosecution], or |
| • |
has
been closely involved with victims, their relatives
or other agents acting on their behalf, e.g. discussing
requests for HSE to take enforcement action beyond
any initial expression of expectation that HSE
will take such action. |
Back
Improved working relationship with 'Solicitor Agents"
The HSE has established new instructions concerning
HSE's interaction with 'Solicitors agents'. They are
concerned to address both the instruction of solicitor
agents and monitoring value for money and quality
of service. The Guidelines for operational staff include
advice on the types of case for which solicitor agents
should be used, which solicitor agents have worked
well for HSE in the past and the acceptable range
of charges. New monitoring arrangements will require
quarterly returns on costs incurred and recovered.
Budget heads are being amended to facilitate this.
The
guidance states that Solicitor Agents should be used
in the following circumstances:
| • |
When
HSE is proposing prosecution on indictment, the
defendant has indicated an intention to elect
Crown Court trial or where it is thought probable
that the magistrates will not wish to hear the
case themselves; |
| • |
In
especially complex cases; |
| • |
Where
the defendants or their solicitors indicate a
procedural defence or are generally hostile or
have made accusations about the behaviour of the
inspector or HSE generally; |
| • |
Where
inspectors have become closely involved with an
injured person or with bereaved relatives and
would find a dispassionate court presentation
difficult; |
| • |
Where
all inspectors in the group who are trained and
competent to conduct cases are otherwise unavailable,
including where the line manager judges other
work they are doing is of higher priority; |
| • |
Defended
cases other than in exceptional circumstances; |
| • |
For
all cases in directorates where inspectors are
not trained to conduct cases. |
According
to the guidance:
The
solicitor agent will form part of the team responsible
for presenting the prosecution on behalf of HSE.
The team may consist of the investigating inspector,
the solicitor agent, an advocate (if required),
and possibly an expert at limited times during the
prosecution. The solicitor agent should devote the
time, commitment, level of accessibility to HSE
staff and willingness to travel that is appropriate
to the case. The solicitor agent should, when requested,
provide appropriate advice on law, the admissibility
of evidence, disclosure, the evidential test and
the Friskies schedule. The instructing inspector
remains the client and the solicitor agent CANNOT
therefore provide independent legal oversight. The
decision to prosecute remains with the HSE at all
times, although of course the solicitor agent’s
advice must be given due weight.
The
guidance say that the solicitor agent scan expect
to be asked to undertake some or all of the following
activities:
| • |
advise
generally as appropriate; |
| • |
prepare
informations/summonses; |
| • |
prepare
advance information; |
| • |
effect
primary disclosure; |
| • |
prepare
committal bundles; |
| • |
prepare
for trial or a guilty plea (including preparation
of a Case Summary); |
| • |
conduct
advocacy in the magistrates’ courts; |
| • |
brief
Counsel; |
| • |
arrange
conferences/consultations; |
| • |
liaise
with HSE Solicitor’s Office regarding issues
of national importance (to HSE); |
| • |
report
regularly to the inspector instructing the solicitor
on behalf of HSE. |
The
Guidance states that once a solicitor agent has been
appointed that solicitor is entitled to expect the
following from HSE:
| • |
a
willingness to work as a team and to accept legal
advice; |
| • |
a
properly investigated case in line with the provisions
of the Criminal Procedure and Investigations Act
1996 and the Code of Practice issued under Part
II of that Act; |
| • |
witness
statements that make sense and contain admissible
evidence; |
| • |
expert
reports/statements (if required) which can be
understood and which assist in proving the case;
|
| • |
properly
exhibited documents and real exhibits; |
| • |
a
prosecution file prepared to HSE procedures. |
The
Guidance also states that If there are any matters,
which undermine the prosecution case then HSE inspectors
should bring them to the attention of the solicitor
agent immediately in order to minimise the potential
for wasted costs.
Back
Court Liaison and Administrative Activities
Till recently although some work was delegated to
non-inspector administrators, court liaison (for example,
the crafting of informations and the arranging of
dates) were done by Field inspectors unless the Solicitors'
Office was handling the case. In order to make e a
more efficient use of HSE resources, the HSE is piloting
a litigation team in the North West . Trained administrative
staff will handle post-approval court liaison work
which is similiar to arrangements that exist in some
police forces.
The
HSE are proposing to build on the work started in
the London Prosecution Pilot and tried out to varying
degrees in some operational divisions by setting up
locally-based teams to handle all case administration
work (at least from the point that cases are approved).
This work will be done by band 5 and 6 administrative
staff relieving inspectors of a considerable burden.
The HSE also hope that these changes may also result
in gains in efficiency and quality once such teams
are well-established because the staff will develop
expertise out of reach for most inspectors (who handle
only a few cases each year). This is being piloted
in FOD’s NW division this year and a decision
on implementation more generally will be taken by
April 2004. W
Back
Use of "Dedicated Courts"
Till recently,HSE's Directorates and divisions (except
London) currently use all Magistrates Courts across
their geographical area. The experience of the prosecution
pilot project in London indicated that there are a
number of benefits in limiting the number of Courts
used to hear health and safety offences. These included:
| • |
easier
to manage caseload - several simple cases can
be heard in a sitting, thereby reducing numbers
of staff involved in presenting case and travel
time. |
| • |
Courts
become more familiar with H&S offences, reflecting
this in the penalty imposed (particularly if we
provide training). |
| • |
Improved
working relations. |
The HSE is therefore looking at Options for efficient
and effective use of centralised court centres
Back
Training for inspectors
The HSE state that :
"although
Inspectors have some training in investigation/prosecution
skills in their first years .. this is not updated
in a systematic way."
HSE
is therefore proposing to strengthen training for
inspectors on investigation, legal and enforcement
work and ensure that there is a consistent approach
throughout the HSE.
Back
Audit
Until recently, HSE did not audit its prosecution
decisions. The HSE have now introduced an audit and
inspection system for investigation and prosecutions.
This will look at both the prosecution process in
general and specific decisions and outcomes in particular
cases.
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