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Construction Health and Safety

LEGAL

MATTERS

Section 0E


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June 2003

NOTE:

Whilst every care has been taken to ensure accuracy withinthis work, no liability whatsoever is accepted by ConstructionHealth and Safety, its sponsoring organisations or theiradvisers in respect of the information given.

No material from this book may be reproduced in anyshape or form without written permission from the publishers.

Printed in Great Britain by Lithoflow, 26-36 Wharfdale Road, Kings Cross, London N1 9RY.Published by the Construction Confederation,

Construction House, 56-64 Leonard Street, London EC2A 4JX.

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CONTENTS

LEGAL ADVICE OE4Introduction OE4Explaining the Law OE4Acts of Parliament OE--4Approved Codes of Practice OE--4Statutory Instruments OE--5

Enforcement OE--5Powers of Inspectors OE--6Notices OE--6

Improvement OE--6Prohibition OE--6

Appeals OE--6Visits from Enforcing Authorities OE--6Prosecution OE--7Accident/Incident Investigation and action OE--8INQUESTS OE--9The Coroners Court OE--9

Purpose OE--9

Process OE--9Verdicts OE--9

MANAGING A PROSECUTION OE--10The Summons OE--10Working wih Solicitors OE--10Witnesses OE--10Going to Court OE--10The Trial OE--11The Verdict OE--11Appeals and Close out OE--11

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LEGAL ADVICE

IntroductionDo you know how and when the law applies to you? Have

you tried to read the law and apply it within your company?If you were to have a serious incident that resulted in acriminal prosecution, do you know what would happen andhow the courts and enforcing authorities would proceed?

If the majority of your answers are NO then read on asthis section aims to give you some insight on: how laws are administered in the UK how to read and apply Acts and Statutes that have been

written to ensure health and safety at work how the law is enforced what happens at Coroners Inquests what procedures are followed in pursuing criminal

actionsThis section provides basic advice and it is strongly

recommended that whenever a Company or its Employeesare under investigation by an enforcing authority in relationto an incident or accident resulting from a breach in healthand safety law that a legal representative such as a solicitorwith experience in this area is consulted. Sources of legal

advice can be identified through the web by searching: www.solicitors-online.com (solicitors) www.sweetandmaxwell.co.uk/online/bardirectory

(barristers)Please note that this section does not detail legal issues

relating to personal claims for injuries or personal damages,and that advice and assistance should be sought viaInsurers.

Finally, whilst there are many admirable commentariesexplaining the legal requirements, it is suggested that Healthand Safety Professionals, in particular, must learn to readand apply the legislation themselves. They must become firmand robust in their own knowledge and understanding andit is hoped that the contents of this section encourages themto further develop these skills.

EXPLAINING THE LAW

What is Legislation?Legislation comprises of Acts of Parliament (Acts) anddelegated legislation e.g. ministerial orders and regulationswhich are designated as Statutory Instruments (SI), localauthority bylaws and court rules of procedure.

All health and safety legislation is developed by the UKgovernment in consultation with employers, employees andtheir representatives. Consultation on proposed changes tohealth and safety legislation can be accessed through theHealth and Safety Commissions Website see:http://www.hse.gov.uk

Sometimes the legislation is introduced in response toDirectives passed by the European Parliament. It is acondition of the Treaty of Rome and subsequent treaties,which define how the member states of the EuropeanCommunity will behave that directives must be fullyimplemented in the member states. In practice this meansthat the Governments Advisers check to see what legislationalready exists in the UK, they then compare this against thewording of the Directive and where gaps exist theyimplement the Directives requirements by amending thelegislation. These changes can sometimes have a knock-oneffect and instead of just one set of Regulations beingaffected a number of items of legislation can require change.

Health and Safety legislation aims to establish minimumlegal responsibilities for employers and employees to ensurethe health and safety of persons at work and those whocould be affected by work activities, such as members of thepublic.

Health and Safety legislation exists in a number of formsthese are:

ACTS OF PARLIAMENTe.g. Health and Safety at Work etc Act

STATUTORY INSTRUMENTSe.g. Construction (Design and Management) Regulations(Amended) 1994. In addition to the legislation, there aredocuments which suport the legislation called ApprovedCodes of Practice and Guidance

All UK legislation is printed and published by TheStationery Office Ltd, for further information seewww.hmso.gov.uk

ACTS OF PARLIAMENT & REGULATIONSThe Health and Safety at Work etc. Act 1974 (HASAWA)applies to all employers, the self employed and employeesand is the foundation on which all modern UK health andsafety legislation is based.

The HASAWA is an enabling Act which means it allowsthe Secretary of State to make regulations which appear asStatutory Instruments. In many cases Acts set objectiveswhilst Regulations deal with specific matters.

The HASAWA also established a co-ordinating andenforcing authority, the Health and Safety Commission(HSC) who through its enforcement arm, the Health andSafety Executive, gives the legislation teeth. The HSE alsoprovide a very valuable guidance and support service.

HASAWA makes provision for the protection ofEmployees and Other Persons against risks to their healthand safety from the way in which work activities are carriedout. In addition, the Act ensures the continuation of theEmployment Medical Advisory Service which primarilyprovides medical support and advice to the Health and

Safety Executive

Approved Codes of PracticeAn Approved Code of Practice (ACoP) is a quasi-legaldocument produced by the Health and Safety Commission.Although non-compliance with an ACoP does not constitutea breach of the law in itself, if a contravention of the act orregulation associated with the ACoP is alleged, the fact thatthe code was not followed will be accepted in court asevidence of failure to do all that was reasonably practicable.A defence would be to prove that something equally asgood as or better than the Code had been implemented.

To supplement the Approved Codes of Practice, the HSEalso issues guidance. Following the guidance is notcompulsory and you are free to take other action. But if you

do follow the guidance you will normally be doing enoughto comply with the law. Guidance has no formal legalstanding but it may be referred to as an illustration of goodpractice.

ACoPs and Guidance can be purchased through HSEbooks and other book sellers. Some guidance can beviewed via the HSE website www.hse.gov.uk

When does Legislation Apply and who does itApply to?Before getting too involved in this question it is important toverify that the legislation is current and has not beenamended. If it has been amended then it is vital that the mostup to date copy is acquired.

The easiest way to verify the currency of legislation isthrough the Stationery Offices website at www.hmso.gov.ukThis facility holds copies of Acts and SIs in a downloadableformat. Acts are held from 1988 to date while SIs from1987 to date.


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When you look at the front page of an SI it will looksomething like this:

You can see that it has a specific Year and SI Number in thiscase, 1994 and 3140, and that it was made, i.e. the finaldraft was agreed on, the 19th September 1994, it was laidbefore parliament to be passed as legislation on the 10th

January 1995 and that it came into force i.e. had to beapplied on 31st March 1995.

Details about when the regulations came into force will

also be recorded within the document under regulation 1citation and commencement. Regulation 1 of the CDMRegulations above states:

1.These Regulations may be cited as the Construction(Design and Management) Regulations 1994 and shallcome into force on 31st March 1995.

However if you had searched for CDM within the HMSOwebsite you should have discovered that the regulationshave in fact been amended by 2000 SI 2380

The amendment regulations do not replace all of theregulations they make amendments and therefore should beread in conjunction with the original regulations.

Conversely, when amending SIs the government can, ifmaking major changes, re-issue the regulations in acomplete format for example, the Provision and Use of WorkEquipment Regulations 1992 were completely re-issued in1998 to reflect the wording of European directives.

ApplicationVarious sections of the HASAWA apply to employers, theself-employed, manufacturers, suppliers and employees. SIs(Regulations) made under the HASAWA may or may notapply to a particular Company and its operations.

A perusal of one of the appropriate regulations, usuallynumber 3 or 4, will define which parts of the legislationapplies to whom. This can sometimes be difficult as evenparts of a single regulation can be divided up between theduty holders. However, persistence is important as only thepeople or duty holders named in the regulation needcomply!

DefinitionsThe meanings of key words in legislation are often explainedin the body of the text under the heading of Interpretation.

It is vital that, along with checking the currency of thelegislation and whether or not it applies, that the meaning ofthe key words is understood. Knowing what the key wordsmean will enable the reader to accurately interpret thefollowing action sections of the legislation. This process canbe complicated by the inclusion of relevant definitions inother associated pieces of legislation. For example, Section52 of the Health and Safety at Work Act defines themeaning of work and at work. These definitions apply tothese words wherever they are used in either the Act itself orRegulations made under it.

Reading the action sections of legislation

Once the preliminary checks, including the meaning of thekey words, have been completed it is time to move into themain sections. Again, there is a protocol for this. It is normalfor the General sections of the legislation to be identifiedfirst as they are likely to apply to all the situations or dutyholders covered by the legislation. It therefore follows thatafter the general comes the Specific and these sections orregulations, as the wording suggests, will containrequirements that only apply in certain circumstances.

Repealed LegislationFinally, a section at the rear of the legislation will usuallyshow items of law that have been repealed. Keeping theCompanys copies of legislation up to date is timeconsuming but essential if the advice and subsequent actions

are to comply with current requirements.

Good AdviceLegislation and Approved Codes of Practice are not writtenwith the ordinary person in mind, they can be very wordyand legalistic. Therefore, it is important that where there isassociated documentation available, such as guidance fromHSE or other relevant authorities, that the content of thesedocuments is assessed.

Additional advice can be sought from the Companyshealth and safety professionals, local health and safetygroups or the HSE via their designated phone line on0870154500 or e-mail via the HSE websitewww.hse.gov.uk


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ENFORCEMENT

GeneralThe enforcement of the health and safety legislation in mostconstruction operations is the responsibility of the Health andSafety Executive. Certain activities, such as smallmaintenance works in occupied office premises, aredelegated to local authorities. In addition, some fire matters

involve liaison with the Fire Authority.Actual enforcement is carried out by Inspectors who areauthorised by a written warrant which outlines the powersthey may exercise. An inspector should produce his warranton request;

Powers of inspectorsBy virtue of the HASAWA an inspector has a number ofpowers including:1. The right to enter a site or premises at any reasonable

time and if resisted to enlist the support of a policeofficer

2. The right to inspect and investigate as necessary3. To require, for the purposes of inspection or

investigation, that premises or anything in them,

including plant, is not disturbed4. To take measurements and photographs5. To take samples of substances6. To require tests to be carried out on suspect articles

[eg.plant and equipment] or substances7. To require articles to be dismantled8. To take possession of suspect articles or substances9. To require anyone, who could assist him in his

investigation, to provide answers to questions and tosign a declaration of the truth of the answers (make astatement)

10. The right to inspect and take copies of books ordocuments as necessary for the inspection orinvestigation, or those required to be kept by safety orother legislation However, there is no right to examine

documents for which legal privilege is claimed.11. To require assistance within a persons limits orresponsibility.

Where an inspector does take samples of substances hemust leave a similar identified sample with a responsibleperson within the organisation or leave a conspicuous noticestating that a sample has been taken.

Where an employer suffers damage to property orbusiness as a result of an inspector acting outside hispowers, the inspector can be personally sued forrecompense. Inspectors are indemnified, by the enforcingauthority, against these actions.

After an inspector has completed his inspection orinvestigation he has a duty to inform the Employees or their

representatives of factual matters he has identified.

NOTICES

Improvement NoticesWhen an inspector is of the opinion that a breach oflegislation has occurred, or is likely to occur, he or she mayserve an Improvement Notice. This may be served bysending it to the companys registered office or by handing itto a responsible member of staff. The Notice must statewhich statutory provision the inspector believes has been, orwill be, contravened and the reason for this belief. It shouldalso state a time limit in which the matter should be put right.

This cannot be less than 21 days as the person served withthe Notice has 21 days in which to make an appeal to anEmployment Tribunal (see below).

Extension of TimeWhere corrective work cannot be completed in time, theinspector may extend the period of the notice. Applicationfor an extension of time must be made to the Inspector beforethe period originally allowed expires. Such an application ismore likely to be granted if the applicant can show that thedelay is outside of their control.

Prohibition NoticesHowever, if an inspector believes an activity involves a riskof serious personal injury, the inspector may serve aProhibition Notice requiring immediate cessation of theactivity. This notice must state what, in the inspectorsopinion, is the cause of the risk(s) and may state anypossible contravention.

At a practical level there are a number of actions that canbe taken when a prohibition notice is served. These are: Immediately stop the work to which the notice applies

and comply with the remedial requirements. Where a delayed prohibition notice has been served

ensure that the timescales are complied with. Discuss the contents of the notice with the person who

provides health and safety advice to the Company and

the Contracts Manager/Director and act on the advicegiven.Once the remedial work has been completed the operationwhich caused the offence can continue. However, it is agood defence for management if they can get the Inspectorto return to the site to confirm that the remedial work issatisfactory.

Confirmation that the remedial work meets therequirements of the Notice avoids an allegation during futureInspector visits that the Prohibition notice has not beencomplied with. This is an extremely serious matter as abreach of a prohibition notice attracts higher penalties.There is no procedure for certifying that a notice has beencomplied with.

Finally, management most ensure that the circumstances

that led to the serving of the notice do not occur again as theEnforcing Authority, and the Courts, would rightly take a dimview of this situation.

AppealsAn appeal against a notice can be made at an EmploymentTribunal. An Improvement Notice is suspended at this pointof time until the appeal is disposed of or withdrawn.However, the Prohibition Notice continues in effect until theTribunal directs otherwise.

Visits from Enforcing AuthoritiesIt is important that any Inspector is received courteouslywhen he or she arrives at a site. This is a professionalwanting to speak to professionals.

The Inspector will want to know about the project, thecontract and the main duty holders such as the Client, thePrincipal Contractor, Designers etc. Only a senior member ofstaff can provide the depth of information required and it istherefore vital that this level of person makes time toaccompany the Inspector. Senior Managers are alwaysbusy but the Authors cannot emphasis enough theimportance of setting aside all normal activities to deal withthis issue.

Where matters are identified that require improvement,the Senior Manager must take control and, where this ispossible, immediately and visibly, instigate remedial action.Principal Contractors must accept responsibility for the wholesite, it is not a good strategy to respond to defects byblaming the Sub Contractors as the Principal Contractor has

a legal duty to co-ordinate and monitor the work of all theContractors working on the site.

All matters discussed during the visit must be noted inwriting prior to them being discussed at the sites progress or

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safety committee meeting so that lessons can be learned. TheContracts Manager/ Contracts Director and the person whoprovides health and safety advice should also be informed.

There may be occasions when the site management teamdoes not fully agree with the Inspectors observations. Inthese instances they must not argue but, in a polite way, askthe inspector to explain in more detail the basis for theirview. The inspector should be willing to give such anexplanation and if they still disagree, the inspector should bewilling to listen to their reasons for disagreeing. If the matterstill cannot be resolved the management team should informthe Inspector that they would like to discuss the matter withtheir own Health and Safety Adviser prior to confirming theirproposal for an adequate solution.

Following a visit an Inspector may write to Managementto confirm the matters arising from the visit. A seniormanager must reply promptly, dealing with the issues raisedon a point by point basis and including the closing outtimescales. Paragraphs of woolly, meaningless words areboth unprofessional and unhelpful; they should therefore beavoided

PROSECUTIONBreaches of Health and Safety Law are criminal offencesand as such are dealt with through the criminal courts.

The criminal courts and routes of appeal are different inEngland, Scotland and Northern Ireland, a brief descriptionof each is included in the following text.

English, Irish and Scottish law follows what is called anadversarial system, which basically means that there aretwo sides, a Prosecutor and a Defendant, both of whompresent their view of the facts before a referee who can beeither a group of Magistrates or a Judge and Jurydepending on the seriousness of the case.

An indication of the possible proceedings that may befaced and the possible outcomes, following a breach oflegislation and/or an accident to an employee or otherperson, are shown in Fig 1 and considered on page 8.

It should be noted that for Health and Safety offencesthere is no time limit from the date of the alleged offence asto when proceedings can be instigated

June 2003

Information laid before a Magistrate

Court issues a Summons

Proceedings brought by enforcing authority or Crown

Defendant appears at Magistrates Court and is invited to enter either a Guilty or Not Guilty plea. At this stage thedefendant can either plead, decline to enter any plea, or they can elect to be tried by a Jury (Crown Court)

Guilty Elects trial by JuryNot Guilty or declines to enter a plea

Magistrates hear a summary of the case and decide whether they would have adequate sentencing powers todeal with it. (Mode of Trial)

Magistrates agree to deal withcase

Case committed to Crown Court

Case heard at Crown Court Defendant must nowenter a plea

Guilty Not Guilty Not Guilty

Guilty

Full trial, evidence heard from both sides.Magistrates reach verdict Full trial, evidence heard from both sides.Jury reach verdict

Guilty

Guilty

Not Guilty

Magistrates hear mitigation from the defendant &decide whether they have sufficient sentencing

powers

Crown Court hears mitigation from the defendant

Crown Court hears summary of facts & mitigation

Sufficient Insufficient, committed to CrownCourt for sentence

Magistrates pass sentence, and may award costsand compensation

Judge passes sentence, and may award costs andcompensation

Case heard at Magistrates Court Defendant mustnow enter a plea

Figure 1


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Normally, the Company is named in a summons as thedefendant and since a Company has no physical existencea Solicitor should be appointed as soon as possible. TheSolicitor must be given an Authority to speak for theCompany in Court; this must be provided in writing by astatutory Director such as the Company Secretary.

In Scotland offences are reported to the local Procurator-Fiscal who decides whether to prosecute, in serious cases hewould consult with the Crown Office. If there is to be a triala complaint is served on the accused stating the details ofthe charge. In addition, a death in Scotland triggers theFatal Accident Inquiry mechanism which requires theProcurator Fiscal to hold an investigation into the cause ofdeath. This is completed in open court and is similar to theCoroners Inquest in England (see below).

Most health and safety prosecutions are heard summarilybefore Magistrates (in England and N.Ireland) or the sheriff(in Scotland). In England and N.Ireland, if the trial is to beon indictment, the magistrates will sit as examining justicesto see if there is a case to answer before committing theDefendant for trial at the Crown Court. A Magistrate mayissue a witness summons and a Procurator Fiscal a citation ifit appears that a witness will not attend voluntarily.

Before trial each side must disclose to the other theexistence of documents relevant to its case. This only appliesto documents which are not privileged. Privilegeddocuments are those communications between a party andtheir legal advisers. They are normally headed with thewords, Private and Confidential, prepared in contemplationof legal proceedings. However, this is a complex matter anddefendants should take the advice of their solicitors in thisrespect.

Proceedings in the inferior courts (Magistrates andSheriffs courts) are similar to those in the Crown Court andCourt of Session (Scotland), but quicker and cheaper.

ACCIDENT/INCIDENT INVESTIGATION AND

ACTIONWhere an accident has occurred on site leading to death,serious injury or the circumstances are such that aninvestigation into the circumstances is consideredappropriate because of the potential for serious injury ordeath an investigation should be carried out by theCompany. The enforcing authority is also likely to carry outan investigation. Accident investigation for companies isdealt with in Section 1-22. However, the facts surroundingthe event should be carefully gathered. This includes startingas far back as possible with contractual relationships etc.The fact finding must include sketches of the area, the plantinvolved, measurement and photographs. Photographs ontheir own are insufficient as they can give a false impressionof dimensions. The information should record the situation

before, during and after the event.

Investigations by the Enforcement AuthoritiesThis is a difficult area as whilst the organisation or personbeing investigated must cooperate they could beincriminating themselves in the process. Therefore, thefollowing actions are recommended: A senior manager must take control and be the focal

point for all aspects of interface with external agencies,including document control. This person must become theonly route for the passing of information andcommunication. All aspects of this process must berecorded.

Inform line managers and senior managers / directors inaccordance with the companys procedures.

No person should give a formal statement or documentsto a member of the Enforcing Authority unless this hasbeen discussed with the person in the companyresponsible for legal matters.

Whilst section 20 of HASAWA causes any person toanswer an inspectors questions they are entitled to havea representative with them when the questioning occurs.This representative could be a solicitor in the case of aserious matter. The statements taken by the Inspectorduring this process must make it clear that the statement isprovided under the HASAWA and not PACE (seebelow).

Where a tape recorded statement is taken under cautionin accordance with the Police and Criminal Evidence ActPACE (this should be made clear by the EnforcingAuthority) a person or organisation is entitled to remainsilent if they are of the opinion that the evidence they areproviding could incriminate them. This decision could bepresented in court as non cooperation and therefore itshould only be taken with legal advice as part of theoverall strategy for the defence of the organisation orperson involved.

It is vital that this process is managed through a seniormember of staff and if a prosecution is likely to result fromthe events a solicitor must be involved as early aspossible.

It may be appropriate for large organisations to form analliance with a legal firm to enable legal representation tobe promptly made available. This decision must be madejointly with the Companys Insurers.

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THE CORONERS COURT

PurposeA coroner must seek to determine certain facts about a deathif there is reasonable cause to suspect that the person diedeither a violent or unnatural death, or died a sudden deathof which the cause is unknown. Any deaths involving injuriesor accidents at work or industrial diseases generally fall intothis category.

It is the coroner who decides, based on the informationpresented to him, if it is appropriate to carry out an inquestand/or post-mortem examination and when the body maybe released for burial or cremation.

An inquest is an inquiry to find out who has died, andhow, when and where they died, together with informationneeded by the registrar of deaths, so that the death can beregistered. It is required to be a fact-finding exercise and nota method of apportioning guilt.

There are several other benefits that can come fromholding an inquest: To determine the medical cause of death; To allay rumours or suspicion; To draw attention to the existence of circumstances which,

if unremedied, might lead to further deaths; To advance medical knowledge To preserve the legal interests of the deceased persons

family, heirs or other interested parties.However, it is not the function of a coroners inquest to

provide a forum for attempts to gather evidence for pendingor future criminal or civil proceedings.

ProcessInquests are held in public and the coroner will notify nearrelatives, those whom he believes ought to be present and,in the case of industrial accidents and diseases, the relevantenforcing authority. It is therefore usual for the inquest to beopened, identification established, the body released for

burial/cremation and the inquest then adjourned untilappropriate arrangements can be made for all relevantpersons (interested parties) to be present. It is only thecoroner who decides which persons are to be called aswitnesses although his decisions can be challenged.

It is advisable to write to the Coroner to notify yourcompanys interest, e.g. as employer, and request to be keptinformed of arrangements for the inquest.

Under strictly defined rules, all inquests into deathscaused by legally notifiable accidents and diseases, must beheld with a jury composed of seven to eleven people. Otherstypically involved in the inquest could include a solicitorand/or counsel representing the family of the deceased,likewise for the employer and/or controller of the premises,the pathologist who carried out the post mortem, a police

officer, a HSE inspector and any witnesses.The procedures and rules of evidence at an inquest arevery different from those at a criminal court. There are nosides, no indictment, no prosecution, no defence, and notrial, simply an attempt to establish the facts. There is also noprocess of discovery as there is in other proceedings,hence no advance disclosure of witness statements and thelike.

Witnesses are first questioned by the coroner and then byany other interested parties or their representatives. It is thecoroners job to ensure that questions posed are relevant anddo not seek to apportion blame to anyone. However, this isa difficult area as there is often a very fine line betweeninvestigating any acts or omissions, which may havecontributed towards the death, and suggesting guilt on

someones behalf. Witnesses therefore do have the right ofprivilege against self-incrimination, although it is for thecoroner to decide whether or not the witness is entitled to theprivilege, ie whether answering the question would tend toincriminate the witness.

In giving evidence relating to technical issues it isimportant for witnesses to keep the language they use assimple as possible for the benefit of the jury. If technicalterms have to be used they should be clearly interpreted andif possible, practical, every day examples or analogiesused. Photos, diagrams, sketches or exhibits can be veryuseful and can make a witness task much easier; it is helpfulif they let the coroners officer know in advance if they thinkthey might want to use any.

In cases arising from industrial accidents it must be bornein mind that the outcome of the inquest can have asignificant effect upon the likelihood and nature ofsubsequent legal actions, either criminal or civil. It istherefore vitally important that all possible causes are fullyexplored, that theories advanced are properly challengedand that alternative theories are presented. Whilst theprocess is not meant to be accusative, it can become veryclose to it and companies involved would be well advised toprepare as if to defend themselves. This therefore requiresthe close involvement of the Companys legal advisers.

VerdictsOnce the evidence and legal submissions have beencompleted, the coroner sums up the evidence to the jury anddirects them on any points of law that have arisen and on thepossible verdicts that may be appropriate. These mayinclude: Natural causes - for example a heart attack whilst at work

but unrelated to the work activity; Industrial disease - whether one of those prescribed in

RIDDOR or some other work related disease; Accident/misadventure - something over which there is

no human control, an unintended act or the unexpectedresult of a deliberate act;

Unlawful killing - includes the substantive homicideoffences of murder and both voluntary and involuntarymanslaughter

Open verdict - only used if there is insufficient evidence toreach any other verdict.

An unlawful killing verdict in a Coroners court wouldnormally result in the case being referred to the CrownProsecution Service for investigation as to whethermanslaughter charges ought to be brought. If not, the HSEmay still bring charges under Health and Safety legislation.

For a criminal charge of involuntary manslaughter to bebrought two components must be present: - Some physical act or omission for which the defendant is

responsible;and A deliberate intent to break the law or, with no specific

intent, being grossly negligent towards the victim.

There is no rule that a corporate body cannot be guilty ofinvoluntary manslaughter.It is therefore usual for the HSE to defer any decision on

possible prosecution until after the inquest has been held.Indeed HSE treat the inquest as part of their evidencegathering process.

By their very nature inquests can be harrowingexperiences for all concerned. Companies and individualemployees summoned to appear should take legal advicewell in advance and, if necessary, arrange for legalrepresentation at the inquest and prepare thoroughly.

Reference - Jervis on the Office and Duties of Coroners(Eleventh Edition) published by Sweet and Maxwell

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INQUESTS


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The SummonsAs detailed in previous sub sections a summons is instigatedby an Enforcing Authority where they are of the opinion thatthe statutory provisions (the law) has been broken. This doesnot have to be linked to an accident.

The summons will normally arrive by post at theCompanys registered office and it is vital that its contents

are carefully checked to ensure that the details are correct.Matters such as the Companys legal name are sometimeswrong and require amendment by the Prosecution.

The summons will list the legislation that, it is alleged, wasbreached by the defendant. Prosecutors should rely on thespecific legal requirements first and only resort to the generallegislation, such as section two of the Health and Safety atWork etc Act 1974, when the specific legislation does notcover the facts.

It is not unusual for prosecutors to include both specificand general legislation in relation to the same event as partof a catch all strategy. The contents of a summons can bechallenged and the Solicitors acting for the Company orIndividual should advise in this respect.

The summons should be accompanied with advance

information of the Prosecutions case against the Defendantor at least this information should be provided in plenty oftime to allow the Defendant to prepare a defence. There issome important case law associated with this process andagain the Solicitor instructed by the Company or personconcerned will provide advice on this matter.

Following is a list of actions and advice designed to assistanyone who receives a summons in connection with ahealth, safety or environmental protection matter:

Working with Solicitors Appoint a senior person, from within the Company, to act

as a facilitator for the Solicitor. This must be someonewho knows the Companys operations and personnel andcan make things happen. Where possible get the

witnesses to the Solicitor at a central point as Solicitorstime is expensive.

Provide background information, including contractualdetails to ensure that the Solicitor fully understands thefacts surrounding the event.

Provide all the information in the Companys possessionassociated with the event.

Witnesses Encourage the Companys witnesses to tell the truth and

understand that the Solicitor is on our side. The legalprofession can only give good advice if they know thefacts.

Some complex cases may require the services of anexpert who can provide the court with an experienced

and learned opinion about technical matters associatedwith the events that have led up to the case. It is importantto note that obtaining all the evidence, including in somecases experts opinion, may take some time. The LawSociety publishes a Directory of Expert Witnesses invarious subjects associated with the industry. The expertchosen should be independent and have more substantialqualifications and experience than the one used by theProsecution if it is intended to challenge their opinion.

Where an expert witness is involved it is important tounderstand that he or she is a servant of the Court andcannot be seen to be prejudicial towards one side or theother. The experts main job is to write a balanced reportsetting out the facts and the strengths and weaknesses ofthe case. The more that the Prosecutions Expert and theDefendants Expert can agree before the trial the more thecourt will accept their opinion as this saves court timewhich is, by its nature, expensive. However, this processmust still be managed through the Companys or

Individuals legal representative as experts can run outof control.

The experts report or reports are important documents astheir findings can significantly influence the case strategyand plea. The instructing Solicitor must therefore providea clear brief setting out the matters to be covered by thereport bearing in mind that its contents must be disclosed

to the Prosecution. Finally, it is vital that the reports contents are presented ina simple, clear fashion as, if the defendant does notunderstand the points that the expert is making, neitherwill the Court and, in the event of a Crown Court case,the Jury. Getting the best out of an expert will demandcommon sense, time, experience, patience and skill fromthe Solicitor conducting the case.

Understand that the advice on the likely outcome maychange as the case develops and evidence comes tolight or its significance is better understood.

Going to Court The Company, following discussions with the Solicitor

and, in some cases a Barrister, will be required to decide

on a plea. The guilty or not guilty plea must beconfirmed to the Solicitors in writing by the Defendant.Ego should not be allowed to influence the decision; anot guilty plea must only be entered if the Company orperson named in the summons is confident that theallegations are incorrect. A wrong decision to plead notguilty can be expensive with costs far outstripping fines.In weighing up the likelihood of conviction against thepotential costs, it must be recognised that the Companysreputation with its Clients and prospective Clients has avalue which should be taken into account. The plea mustbe confirmed to the court as early as is practical, bearingin mind the need to collect and evaluate all the facts, asthe Court will take the promptness of a guilty plea intoaccount when considering sentence.

The first hearing is likely to be at a Magistrates Court. Asmost Health, Safety and Environmental offences aretriable either way. A higher Court will lead to more costsand the risk of more serious penalties. Both theCompanys and Enforcing Authoritys CourtRepresentatives take part in the mode of trial debatealthough the Magistrates have the last word on thismatter. In either way offences the defendant has theright to trial in the Crown Court if they so desire.

If a not guilty plea is likely to be entered or the case islegally complex in nature the Solicitor may advise that aBarrister should be instructed. Cases heard at the CrownCourt will nearly always involve the appointment of aBarrister to act as the Companys Legal Adviser andAdvocate although new Court procedures allow specially

trained Solicitors to appear at the Crown Courts inaddition to Magistrates Courts which have been theirnormal place of business.

As with expert witnesses, obtaining the services of aBarrister with significant experience of Health, Safety orEnvironmental matters is important to the likely outcomeof the case. As members of the public cannot engageBarristers directly and must use the service of a Solicitoras a go between the Solicitors assessment of theBarristers knowledge, experience and track recordstimulated by pertinent questioning from the Company orperson involved is crucial in making the correct choice.

Solicitors support Barristers in the collection of the factualand expert evidence, documentation and Courtproceedings. The evidence must be collated in a mannerthat enables it to be readily and easily accessed beforeand during the Court proceedings.

June 2003

MANAGING A PROSECUTION


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The Trial During the trail the prosecution presents their evidence

first, followed by the defence. Witnesses are not allowedto be present in the courtroom before they have giventheir evidence but must remain in the separate witnessroom. Obviously, if they were in court they could heareveryone elses evidence and this would clearly prejudicetheir view of events.

Whilst both sides can call witnesses this is mainlyassociated with not guilty trials. Solicitors and Barristersare not allowed to practice witnesses in their evidence asagain this would be viewed by the Court as prejudicial.Witnesses must be advised to stick to the facts they knowfrom first hand knowledge and nothing else. They shouldalso tell the truth and avoid confrontation with theEnforcing Authoritys Legal Representative.

Before and during the trial Solicitors and Barristers onboth sides may attempt to reach agreement on certainissues. The aim of this process is to save the Courts timewhilst ensuring a fair outcome for both parties. Evidencewhich is non-contentious may be accepted by both sidesand therefore not brought before the Court. Similarly,offences listed on the original Summons may be droppedor amended.

It is important that a Senior Representative of theCompany, a Director, is present in Court to demonstratethe Companys concern and commitment.

Similarly, the Company should provide a person, usuallythe Health, Safety or Environmental Manager, who canadvise the legal team on aspects of the Companysdocumentation, management system and facts thatemerge during the evidence presented during the trial.Like other witnesses and persons involved in the case theAdviser must be objective in his responses and tell thetruth. Like the legal team the Adviser must collatepaperwork associated with the case in a manner thatallows for prompt recovery before and during the trial.

The Verdict The Magistrates or Jury, depending on the type of Courtwhere the case is heard, will hear all the evidence andthen retire to consider their verdict. In a Magistrates Courtthe Clerk of the Court normally provides the layMagistrates with legal advice to assist them in theirdeliberations.

The Magistrates or the Jury, at a Crown Court, return andpronounce their verdict.

If the verdict is guilty then the defendants Solicitor orBarrister will normally want to enter a plea of mitigation.The Companys Adviser must be involved in thepreparation of this document which normally includespositive facts about the Company, its Health, Safety andEnvironmental record, as appropriate, previous

convictions and the improvement actions taken. The plea of mitigation is heard and the Judge orMagistrates, depending on the type of Court, announcetheir sentence and hear submissions in relation to theaward of costs. It is normal for the side that wins to beawarded all their reasonable costs and for the loser topay both sides costs. However, Courts use the level of fineto indicate the level of culpability. This will also be relatedto, what are called, aggravating and mitigating factorssuch as the degree of injury experienced by the personinvolved in an accident, the actions taken since theaccident to avoid a recurrence, the Defendants pastrecord over the previous five years etc. Direction on thesematters is set out in the case of R v F Howe & Sons (1999)The courts will expect the defence and prosecution to try

to agree on the relevant mitigating and aggravatingfactors and present those agreed factors to the courtbefore sentencing; see (R v Friskies Petcare (UK) Ltd(2000) It is vital that current, factual evidence associated

with the Howe factors is obtained and made availableto the Court; this includes the last three years financialresults as these are taken into account when the fine isdetermined.

Companies normally ask the Court for thirty days inwhich to pay the fine and costs awarded against them. Itis important that a senior person, such as the CompanySecretary, tracks the Courts invoice and the Companyscheque as it would be embarrassing, and could lead toan additional Court appearance and costs, if the fine andcosts were not paid on time.

The Health & Safety Executive publish details of theirsuccessful prosecutions on their Intranet web site(www.hse.gov.uk). It is important that the CompanysAdviser or a Director checks the entry and asks the HSEto amend any factual discrepancies.

Appeals and Close Out Defendants who are of the opinion that something about

the Prosecution process, the Court proceedings or theverdict is incorrect can appeal. This can be an expensiveprocess and Defendants should take legal advice beforeconsidering this action. Like the plea it can be abalancing act between protecting the Defendantsreputation, objecting about the conduct of the case andassessing the likely expenditure in a dispassionatemanner.

The final act should be a case review involving all thepersons from within the Company associated with theevent. This is not a time for apportioning blame but ratheran opportunity to learn from the experience. Theproceedings must be formalised with, perhaps, theDirector responsible for the contract or CompanyManaging Director chairing the event. Actions arisingfrom the discussion should be minuted and closed outwithin a reasonable timeframe.

June 2003

cip section 0e

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