| 9.1 |
The
team recognised that there is much valuable
advice and guidance available for enforcers.
The Enforcement Handbook, Operational Circulars,
and Sector Information Minutes (FOD) provide
the chief sources although some material
is also found in the extant sections of
codes such as the Legal Proceedings Code,
Legal Commentary on Acts and Legal Commentary
on Regulations. Verbal and written advice
is also provided on an individual basis
by Solicitors Office and the Field Services
Unit within FOD. It is understood that HID
is in the process of developing a similar
unit to the FOD Field Support Unit to provide
initial legal advice to inspectors. Legal
advice is also sought externally on occasions
from solicitor agents and counsel engaged
on casework. |
| 9.2 |
However,
the many sources of guidance result in a
certain amount of confusion and inconsistency
of approach. For example, we have noted
a case where the inspector sought legal
advice from counsel on HSE legislation which
could have been dealt with by Solicitor’s
Office, leading to possible differences
of approach. Much of our internal guidance
is FOD based, because FOD undertakes the
bulk of prosecution work. The speed of recent
legislative change and relevant case law
has highlighted gaps in our response and
our policies and guidance have not always
kept up with the pace of change. Most of
our guidance is sound and of good quality
but we felt that there needed to be more
comprehensive suite of enforcement guidance
(for all D/Ds) and with mechanisms to ensure
that guidance is issued in a timely way
and is kept up to date. Sufficient resources
will be required in Solicitor's Office to
provide one cross HSE approach to providing
legal advice and guidance. The detail as
to how this should be done and the resourcing
of this would require further work, but
there is a degree or urgency here because
of the risks to HSE if decisions are made
on the basis of out of date guidance. |
| 9.3 |
Although we were not asked to look at legal
training, there is a clear link between
training and guidance and training needs
to be considered in this context. |
| 9.4 |
We also identified a lack of consistency
in charging practice. This is partly for
historical reasons and partly attributable
to the current devolved nature of prosecutions
with different practices being developed
in different areas. This can lead to very
different sentences on similar cases. In
order to encourage consistency of charging
practice, a charging standard should be
developed which gives clear guidance on
charging practice. |
| 9.5 |
Further work could be undertaken with the
Lord Chancellor’s Department and the
Magistrates’ Association to develop
Mode of Trial guidelines for health and
safety offences, linked with the development
of sentencing guidelines. |
| 9.6 |
Such work would ensure that HSE cases are
deal with on a more consistent basis, both
in terms of committal to the Crown Court
and with respect to sentencing.
Recommendation: Work should be
undertaken to develop a system and identify
the necessary resources which will ensure
HSE has comprehensive legal guidance and
training in place for staff, with mechanisms
to ensure timely issue and updating.
Recommendation: In order to encourage
consistency, HSE should develop a charging
standard which gives clear guidance on charging
practice.
Recommendation: HSE should work with
others to help develop Mode of Trial and
sentencing guidelines appropriate to health
and safety offences. |
