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HSE's New Prosecution Plans
Back to index on Independent Legal Oversight
Back to Main Page on HSE Prosecutions

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

Independent Legal Oversight for Serious Cases
System to increase 'Independence" of other Prosecution Decisions
Dealing with Solicitor Agents
Court Liaison and Administrative Activities
Use of "Dedicated Courts"
Prosecution Training for inspectors
Auditing of Prosecution Decisions

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 ;
- 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.

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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.

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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.

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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

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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

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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.

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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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Page last updated on April 8, 2004