Construction Health and Safety

LEGAL
MATTERS

Section 0E
June 2003

0E 1

NOTE:
Whilst every care has been taken to ensure accuracy within
this work, no liability whatsoever is accepted by Construction
Health and Safety, its sponsoring organisations or their
advisers in respect of the information given.
No material from this book may be reproduced in any
shape 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.

0E 2

June 2003

CONTENTS
LEGAL ADVICE
Introduction
Explaining the Law
Acts of Parliament
Approved Codes of Practice
Statutory Instruments
Enforcement
Powers of Inspectors
Notices
Improvement
Prohibition
Appeals
Visits from Enforcing Authorities
Prosecution
Accident/Incident Investigation and action
INQUESTS
The Coroners Court
Purpose
Process
Verdicts
MANAGING A PROSECUTION
The Summons
Working wih Solicitors
Witnesses
Going to Court
The Trial
The Verdict
Appeals and Close out

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0E 3

LEGAL ADVICE
Introduction
Do 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 a
criminal prosecution, do you know what would happen and
how the courts and enforcing authorities would proceed?
If the majority of your answers are NO then read on as
this 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
actions
This section provides basic advice and it is strongly
recommended that whenever a Company or its Employees
are under investigation by an enforcing authority in relation
to an incident or accident resulting from a breach in health
and safety law that a legal representative such as a solicitor
with 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 via
Insurers.
Finally, whilst there are many admirable commentaries
explaining the legal requirements, it is suggested that Health
and Safety Professionals, in particular, must learn to read
and apply the legislation themselves. They must become firm
and robust in their own knowledge and understanding and
it is hoped that the contents of this section encourages them
to further develop these skills.
EXPLAINING THE LAW
What is Legislation?
Legislation comprises of Acts of Parliament (Acts) and
delegated legislation e.g. ministerial orders and regulations
which are designated as Statutory Instruments (SI), local
authority bylaws and court rules of procedure.
All health and safety legislation is developed by the UK
government in consultation with employers, employees and
their representatives. Consultation on proposed changes to
health and safety legislation can be accessed through the
Health and Safety Commissions Website see:
http://www.hse.gov.uk
Sometimes the legislation is introduced in response to
Directives passed by the European Parliament. It is a
condition of the Treaty of Rome and subsequent treaties,
which define how the member states of the European
Community will behave that directives must be fully
implemented in the member states. In practice this means
that the Governments Advisers check to see what legislation
already exists in the UK, they then compare this against the
wording of the Directive and where gaps exist they
implement the Directives requirements by amending the
legislation. These changes can sometimes have a knock-on
effect and instead of just one set of Regulations being
affected a number of items of legislation can require change.
Health and Safety legislation aims to establish minimum
legal responsibilities for employers and employees to ensure
the health and safety of persons at work and those who
could be affected by work activities, such as members of the
public.

Health and Safety legislation exists in a number of forms

these are:
ACTS OF PARLIAMENT
e.g. Health and Safety at Work etc Act
STATUTORY INSTRUMENTS
e.g. Construction (Design and Management) Regulations
(Amended) 1994. In addition to the legislation, there are
documents which suport the legislation called Approved
Codes of Practice and Guidance
All UK legislation is printed and published by The
Stationery Office Ltd, for further information see
www.hmso.gov.uk
ACTS OF PARLIAMENT & REGULATIONS
The Health and Safety at Work etc. Act 1974 (HASAWA)
applies to all employers, the self employed and employees
and is the foundation on which all modern UK health and
safety legislation is based.
The HASAWA is an enabling Act which means it allows
the Secretary of State to make regulations which appear as
Statutory Instruments. In many cases Acts set objectives
whilst Regulations deal with specific matters.
The HASAWA also established a co-ordinating and
enforcing authority, the Health and Safety Commission
(HSC) who through its enforcement arm, the Health and
Safety Executive, gives the legislation teeth. The HSE also
provide a very valuable guidance and support service.
HASAWA makes provision for the protection of
Employees and Other Persons against risks to their health
and safety from the way in which work activities are carried
out. In addition, the Act ensures the continuation of the
Employment Medical Advisory Service which primarily
provides medical support and advice to the Health and
Safety Executive
Approved Codes of Practice
An Approved Code of Practice (ACoP) is a quasi-legal
document produced by the Health and Safety Commission.
Although non-compliance with an ACoP does not constitute
a breach of the law in itself, if a contravention of the act or
regulation associated with the ACoP is alleged, the fact that
the code was not followed will be accepted in court as
evidence of failure to do all that was reasonably practicable.
A defence would be to prove that something equally as
good as or better than the Code had been implemented.
To supplement the Approved Codes of Practice, the HSE
also issues guidance. Following the guidance is not
compulsory and you are free to take other action. But if you
do follow the guidance you will normally be doing enough
to comply with the law. Guidance has no formal legal
standing but it may be referred to as an illustration of good
practice.
ACoPs and Guidance can be purchased through HSE
books and other book sellers. Some guidance can be
viewed via the HSE website www.hse.gov.uk
When does Legislation Apply and who does it
Apply to?
Before getting too involved in this question it is important to
verify that the legislation is current and has not been
amended. If it has been amended then it is vital that the most
up to date copy is acquired.
The easiest way to verify the currency of legislation is
through the Stationery Offices website at www.hmso.gov.uk
This facility holds copies of Acts and SIs in a downloadable
format. Acts are held from 1988 to date while SIs from
1987 to date.
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When you look at the front page of an SI it will look

something like this:

The amendment regulations do not replace all of the

regulations they make amendments and therefore should be
read in conjunction with the original regulations.
Conversely, when amending SIs the government can, if
making major changes, re-issue the regulations in a
complete format for example, the Provision and Use of Work
Equipment Regulations 1992 were completely re-issued in
1998 to reflect the wording of European directives.
Application
Various sections of the HASAWA apply to employers, the
self-employed, manufacturers, suppliers and employees. SIs
(Regulations) made under the HASAWA may or may not
apply to a particular Company and its operations.
A perusal of one of the appropriate regulations, usually
number 3 or 4, will define which parts of the legislation
applies to whom. This can sometimes be difficult as even
parts of a single regulation can be divided up between the
duty holders. However, persistence is important as only the
people or duty holders named in the regulation need
comply!

You can see that it has a specific Year and SI Number in this
case, 1994 and 3140, and that it was made, i.e. the final
draft was agreed on, the 19th September 1994, it was laid
before parliament to be passed as legislation on the 10th
January 1995 and that it came into force i.e. had to be
applied on 31st March 1995.
Details about when the regulations came into force will
also be recorded within the document under regulation 1
citation and commencement. Regulation 1 of the CDM
Regulations above states:
1. These Regulations may be cited as the Construction
(Design and Management) Regulations 1994 and shall
come into force on 31st March 1995.
However if you had searched for CDM within the HMSO
website you should have discovered that the regulations
have in fact been amended by 2000 SI 2380

Definitions
The meanings of key words in legislation are often explained
in the body of the text under the heading of Interpretation.
It is vital that, along with checking the currency of the
legislation and whether or not it applies, that the meaning of
the key words is understood. Knowing what the key words
mean will enable the reader to accurately interpret the
following action sections of the legislation. This process can
be complicated by the inclusion of relevant definitions in
other associated pieces of legislation. For example, Section
52 of the Health and Safety at Work Act defines the
meaning of work and at work. These definitions apply to
these words wherever they are used in either the Act itself or
Regulations made under it.
Reading the action sections of legislation
Once the preliminary checks, including the meaning of the
key words, have been completed it is time to move into the
main sections. Again, there is a protocol for this. It is normal
for the General sections of the legislation to be identified
first as they are likely to apply to all the situations or duty
holders covered by the legislation. It therefore follows that
after the general comes the Specific and these sections or
regulations, as the wording suggests, will contain
requirements that only apply in certain circumstances.
Repealed Legislation
Finally, a section at the rear of the legislation will usually
show items of law that have been repealed. Keeping the
Companys copies of legislation up to date is time
consuming but essential if the advice and subsequent actions
are to comply with current requirements.
Good Advice
Legislation and Approved Codes of Practice are not written
with the ordinary person in mind, they can be very wordy
and legalistic. Therefore, it is important that where there is
associated documentation available, such as guidance from
HSE or other relevant authorities, that the content of these
documents is assessed.
Additional advice can be sought from the Companys
health and safety professionals, local health and safety
groups or the HSE via their designated phone line on
0870154500 or e-mail via the HSE website
www.hse.gov.uk

June 2003

0E 5

ENFORCEMENT
General
The enforcement of the health and safety legislation in most
construction operations is the responsibility of the Health and
Safety Executive. Certain activities, such as small
maintenance works in occupied office premises, are
delegated to local authorities. In addition, some fire matters
involve liaison with the Fire Authority.
Actual enforcement is carried out by Inspectors who are
authorised by a written warrant which outlines the powers
they may exercise. An inspector should produce his warrant
on request;
Powers of inspectors
By virtue of the HASAWA an inspector has a number of
powers including:
1. The right to enter a site or premises at any reasonable
time and if resisted to enlist the support of a police
officer
2. The right to inspect and investigate as necessary
3. To require, for the purposes of inspection or
investigation, that premises or anything in them,
including plant, is not disturbed
4. To take measurements and photographs
5. To take samples of substances
6. To require tests to be carried out on suspect articles
[eg.plant and equipment] or substances
7. To require articles to be dismantled
8. To take possession of suspect articles or substances
9. To require anyone, who could assist him in his
investigation, to provide answers to questions and to
sign a declaration of the truth of the answers (make a
statement)
10. The right to inspect and take copies of books or
documents as necessary for the inspection or
investigation, or those required to be kept by safety or
other legislation However, there is no right to examine
documents for which legal privilege is claimed.
11. To require assistance within a persons limits or
responsibility.
Where an inspector does take samples of substances he
must leave a similar identified sample with a responsible
person within the organisation or leave a conspicuous notice
stating that a sample has been taken.
Where an employer suffers damage to property or
business as a result of an inspector acting outside his
powers, the inspector can be personally sued for
recompense. Inspectors are indemnified, by the enforcing
authority, against these actions.
After an inspector has completed his inspection or
investigation he has a duty to inform the Employees or their
representatives of factual matters he has identified.

NOTICES
Improvement Notices
When an inspector is of the opinion that a breach of
legislation has occurred, or is likely to occur, he or she may
serve an Improvement Notice. This may be served by
sending it to the companys registered office or by handing it
to a responsible member of staff. The Notice must state
which statutory provision the inspector believes has been, or
will be, contravened and the reason for this belief. It should
also state a time limit in which the matter should be put right.
This cannot be less than 21 days as the person served with
the Notice has 21 days in which to make an appeal to an
Employment Tribunal (see below).

0E 6

Extension of Time
Where corrective work cannot be completed in time, the
inspector may extend the period of the notice. Application
for an extension of time must be made to the Inspector before
the period originally allowed expires. Such an application is
more likely to be granted if the applicant can show that the
delay is outside of their control.
Prohibition Notices
However, if an inspector believes an activity involves a risk
of serious personal injury, the inspector may serve a
Prohibition Notice requiring immediate cessation of the
activity. This notice must state what, in the inspectors
opinion, is the cause of the risk(s) and may state any
possible contravention.
At a practical level there are a number of actions that can
be 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 advice
given.
Once the remedial work has been completed the operation
which caused the offence can continue. However, it is a
good defence for management if they can get the Inspector
to return to the site to confirm that the remedial work is
satisfactory.
Confirmation that the remedial work meets the
requirements of the Notice avoids an allegation during future
Inspector visits that the Prohibition notice has not been
complied with. This is an extremely serious matter as a
breach of a prohibition notice attracts higher penalties.
There is no procedure for certifying that a notice has been
complied with.
Finally, management most ensure that the circumstances
that led to the serving of the notice do not occur again as the
Enforcing Authority, and the Courts, would rightly take a dim
view of this situation.
Appeals
An appeal against a notice can be made at an Employment
Tribunal. An Improvement Notice is suspended at this point
of time until the appeal is disposed of or withdrawn.
However, the Prohibition Notice continues in effect until the
Tribunal directs otherwise.
Visits from Enforcing Authorities
It is important that any Inspector is received courteously
when he or she arrives at a site. This is a professional
wanting to speak to professionals.
The Inspector will want to know about the project, the
contract and the main duty holders such as the Client, the
Principal Contractor, Designers etc. Only a senior member of
staff can provide the depth of information required and it is
therefore vital that this level of person makes time to
accompany the Inspector. Senior Managers are always
busy but the Authors cannot emphasis enough the
importance of setting aside all normal activities to deal with
this issue.
Where matters are identified that require improvement,
the Senior Manager must take control and, where this is
possible, immediately and visibly, instigate remedial action.
Principal Contractors must accept responsibility for the whole
site, it is not a good strategy to respond to defects by
blaming the Sub Contractors as the Principal Contractor has
a legal duty to co-ordinate and monitor the work of all the
Contractors working on the site.
All matters discussed during the visit must be noted in
writing prior to them being discussed at the sites progress or
June 2003

safety committee meeting so that lessons can be learned. The

Contracts Manager/ Contracts Director and the person who
provides health and safety advice should also be informed.
There may be occasions when the site management team
does not fully agree with the Inspectors observations. In
these instances they must not argue but, in a polite way, ask
the inspector to explain in more detail the basis for their
view. The inspector should be willing to give such an
explanation and if they still disagree, the inspector should be
willing to listen to their reasons for disagreeing. If the matter
still cannot be resolved the management team should inform
the Inspector that they would like to discuss the matter with
their own Health and Safety Adviser prior to confirming their
proposal for an adequate solution.
Following a visit an Inspector may write to Management
to confirm the matters arising from the visit. A senior
manager must reply promptly, dealing with the issues raised
on a point by point basis and including the closing out
timescales. Paragraphs of woolly, meaningless words are
both unprofessional and unhelpful; they should therefore be
avoided

PROSECUTION
Breaches of Health and Safety Law are criminal offences
and as such are dealt with through the criminal courts.
The criminal courts and routes of appeal are different in
England, Scotland and Northern Ireland, a brief description
of each is included in the following text.
English, Irish and Scottish law follows what is called an
adversarial system, which basically means that there are
two sides, a Prosecutor and a Defendant, both of whom
present their view of the facts before a referee who can be
either a group of Magistrates or a Judge and Jury
depending on the seriousness of the case.
An indication of the possible proceedings that may be
faced and the possible outcomes, following a breach of
legislation and/or an accident to an employee or other
person, are shown in Fig 1 and considered on page 8.
It should be noted that for Health and Safety offences
there is no time limit from the date of the alleged offence as
to when proceedings can be instigated

Figure 1
Proceedings brought by enforcing authority or Crown
Information laid before a Magistrate
Court issues a Summons
Defendant appears at Magistrates Court and is invited to enter either a Guilty or Not Guilty plea. At this stage the
defendant can either plead, decline to enter any plea, or they can elect to be tried by a Jury (Crown Court)
Not Guilty or declines to enter a plea

Guilty

Elects trial by Jury

Magistrates hear a summary of the case and decide whether they would have adequate sentencing powers to
deal with it. (Mode of Trial)
Case committed to Crown Court

Magistrates agree to deal with

case
Case heard at Magistrates Court Defendant must
now enter a plea

Case heard at Crown Court Defendant must now

enter a plea

Not Guilty

Guilty

Not Guilty

Full trial, evidence heard from both sides.

Magistrates reach verdict
Guilty

Sufficient

Full trial, evidence heard from both sides.

Jury reach verdict
Not Guilty

Magistrates hear mitigation from the defendant &

decide whether they have sufficient sentencing
powers

Guilty

Guilty

Crown Court hears mitigation from the defendant

Insufficient, committed to Crown

Court for sentence
Crown Court hears summary of facts & mitigation

Magistrates pass sentence, and may award costs

and compensation
June 2003

Judge passes sentence, and may award costs and

compensation

Normally, the Company is named in a summons as the

defendant and since a Company has no physical existence
a Solicitor should be appointed as soon as possible. The
Solicitor must be given an Authority to speak for the
Company in Court; this must be provided in writing by a
statutory Director such as the Company Secretary.
In Scotland offences are reported to the local ProcuratorFiscal who decides whether to prosecute, in serious cases he
would consult with the Crown Office. If there is to be a trial
a complaint is served on the accused stating the details of
the charge. In addition, a death in Scotland triggers the
Fatal Accident Inquiry mechanism which requires the
Procurator Fiscal to hold an investigation into the cause of
death. This is completed in open court and is similar to the
Coroners Inquest in England (see below).
Most health and safety prosecutions are heard summarily
before Magistrates (in England and N.Ireland) or the sheriff
(in Scotland). In England and N.Ireland, if the trial is to be
on indictment, the magistrates will sit as examining justices
to see if there is a case to answer before committing the
Defendant for trial at the Crown Court. A Magistrate may
issue a witness summons and a Procurator Fiscal a citation if
it appears that a witness will not attend voluntarily.
Before trial each side must disclose to the other the
existence of documents relevant to its case. This only applies
to documents which are not privileged. Privileged
documents are those communications between a party and
their legal advisers. They are normally headed with the
words, Private and Confidential, prepared in contemplation
of legal proceedings. However, this is a complex matter and
defendants should take the advice of their solicitors in this
respect.
Proceedings in the inferior courts (Magistrates and
Sheriffs courts) are similar to those in the Crown Court and
Court of Session (Scotland), but quicker and cheaper.

Whilst section 20 of HASAWA causes any person to

answer an inspectors questions they are entitled to have
a representative with them when the questioning occurs.
This representative could be a solicitor in the case of a
serious matter. The statements taken by the Inspector
during this process must make it clear that the statement is
provided under the HASAWA and not PACE (see
below).
Where a tape recorded statement is taken under caution
in accordance with the Police and Criminal Evidence Act
PACE (this should be made clear by the Enforcing
Authority) a person or organisation is entitled to remain
silent if they are of the opinion that the evidence they are
providing could incriminate them. This decision could be
presented in court as non cooperation and therefore it
should only be taken with legal advice as part of the
overall strategy for the defence of the organisation or
person involved.
It is vital that this process is managed through a senior
member of staff and if a prosecution is likely to result from
the events a solicitor must be involved as early as
possible.
It may be appropriate for large organisations to form an
alliance with a legal firm to enable legal representation to
be promptly made available. This decision must be made
jointly with the Companys Insurers.

ACCIDENT/INCIDENT INVESTIGATION AND

ACTION
Where an accident has occurred on site leading to death,
serious injury or the circumstances are such that an
investigation into the circumstances is considered
appropriate because of the potential for serious injury or
death an investigation should be carried out by the
Company. The enforcing authority is also likely to carry out
an investigation. Accident investigation for companies is
dealt with in Section 1-22. However, the facts surrounding
the event should be carefully gathered. This includes starting
as far back as possible with contractual relationships etc.
The fact finding must include sketches of the area, the plant
involved, measurement and photographs. Photographs on
their own are insufficient as they can give a false impression
of dimensions. The information should record the situation
before, during and after the event.
Investigations by the Enforcement Authorities
This is a difficult area as whilst the organisation or person
being investigated must cooperate they could be
incriminating themselves in the process. Therefore, the
following 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 the
only route for the passing of information and
communication. All aspects of this process must be
recorded.
Inform line managers and senior managers / directors in
accordance with the companys procedures.
No person should give a formal statement or documents
to a member of the Enforcing Authority unless this has
been discussed with the person in the company
responsible for legal matters.

June 2003

INQUESTS
THE CORONERS COURT
Purpose
A coroner must seek to determine certain facts about a death
if there is reasonable cause to suspect that the person died
either a violent or unnatural death, or died a sudden death
of which the cause is unknown. Any deaths involving injuries
or accidents at work or industrial diseases generally fall into
this category.
It is the coroner who decides, based on the information
presented to him, if it is appropriate to carry out an inquest
and/or post-mortem examination and when the body may
be released for burial or cremation.
An inquest is an inquiry to find out who has died, and
how, when and where they died, together with information
needed by the registrar of deaths, so that the death can be
registered. It is required to be a fact-finding exercise and not
a method of apportioning guilt.
There are several other benefits that can come from
holding 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 pending
or future criminal or civil proceedings.
Process
Inquests are held in public and the coroner will notify near
relatives, those whom he believes ought to be present and,
in the case of industrial accidents and diseases, the relevant
enforcing authority. It is therefore usual for the inquest to be
opened, identification established, the body released for
burial/cremation and the inquest then adjourned until
appropriate arrangements can be made for all relevant
persons (interested parties) to be present. It is only the
coroner who decides which persons are to be called as
witnesses although his decisions can be challenged.
It is advisable to write to the Coroner to notify your
companys interest, e.g. as employer, and request to be kept
informed of arrangements for the inquest.
Under strictly defined rules, all inquests into deaths
caused by legally notifiable accidents and diseases, must be
held with a jury composed of seven to eleven people. Others
typically involved in the inquest could include a solicitor
and/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 are
very different from those at a criminal court. There are no
sides, no indictment, no prosecution, no defence, and no
trial, simply an attempt to establish the facts. There is also no
process of discovery as there is in other proceedings,
hence no advance disclosure of witness statements and the
like.
Witnesses are first questioned by the coroner and then by
any other interested parties or their representatives. It is the
coroners job to ensure that questions posed are relevant and
do not seek to apportion blame to anyone. However, this is
a difficult area as there is often a very fine line between
investigating any acts or omissions, which may have
contributed towards the death, and suggesting guilt on
someones behalf. Witnesses therefore do have the right of
privilege against self-incrimination, although it is for the
coroner to decide whether or not the witness is entitled to the
privilege, ie whether answering the question would tend to
incriminate the witness.
June 2003

In giving evidence relating to technical issues it is

important for witnesses to keep the language they use as
simple as possible for the benefit of the jury. If technical
terms have to be used they should be clearly interpreted and
if possible, practical, every day examples or analogies
used. Photos, diagrams, sketches or exhibits can be very
useful and can make a witness task much easier; it is helpful
if they let the coroners officer know in advance if they think
they might want to use any.
In cases arising from industrial accidents it must be borne
in mind that the outcome of the inquest can have a
significant effect upon the likelihood and nature of
subsequent legal actions, either criminal or civil. It is
therefore vitally important that all possible causes are fully
explored, that theories advanced are properly challenged
and that alternative theories are presented. Whilst the
process is not meant to be accusative, it can become very
close to it and companies involved would be well advised to
prepare as if to defend themselves. This therefore requires
the close involvement of the Companys legal advisers.
Verdicts
Once the evidence and legal submissions have been
completed, the coroner sums up the evidence to the jury and
directs them on any points of law that have arisen and on the
possible verdicts that may be appropriate. These may
include:
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 unexpected
result of a deliberate act;
Unlawful killing - includes the substantive homicide
offences of murder and both voluntary and involuntary
manslaughter
Open verdict - only used if there is insufficient evidence to
reach any other verdict.
An unlawful killing verdict in a Coroners court would
normally result in the case being referred to the Crown
Prosecution Service for investigation as to whether
manslaughter charges ought to be brought. If not, the HSE
may still bring charges under Health and Safety legislation.
For a criminal charge of involuntary manslaughter to be
brought 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 of
involuntary 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 evidence
gathering process.
By their very nature inquests can be harrowing
experiences for all concerned. Companies and individual
employees summoned to appear should take legal advice
well in advance and, if necessary, arrange for legal
representation at the inquest and prepare thoroughly.
Reference - Jervis on the Office and Duties of Coroners
(Eleventh Edition) published by Sweet and Maxwell

MANAGING A PROSECUTION
The Summons
As detailed in previous sub sections a summons is instigated
by an Enforcing Authority where they are of the opinion that
the statutory provisions (the law) has been broken. This does
not have to be linked to an accident.
The summons will normally arrive by post at the
Companys 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 sometimes
wrong and require amendment by the Prosecution.
The summons will list the legislation that, it is alleged, was
breached by the defendant. Prosecutors should rely on the
specific legal requirements first and only resort to the general
legislation, such as section two of the Health and Safety at
Work etc Act 1974, when the specific legislation does not
cover the facts.
It is not unusual for prosecutors to include both specific
and general legislation in relation to the same event as part
of a catch all strategy. The contents of a summons can be
challenged and the Solicitors acting for the Company or
Individual should advise in this respect.
The summons should be accompanied with advance
information of the Prosecutions case against the Defendant
or at least this information should be provided in plenty of
time to allow the Defendant to prepare a defence. There is
some important case law associated with this process and
again the Solicitor instructed by the Company or person
concerned will provide advice on this matter.
Following is a list of actions and advice designed to assist
anyone who receives a summons in connection with a
health, 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 someone
who knows the Companys operations and personnel and
can make things happen. Where possible get the
witnesses to the Solicitor at a central point as Solicitors
time is expensive.
Provide background information, including contractual
details to ensure that the Solicitor fully understands the
facts surrounding the event.
Provide all the information in the Companys possession
associated with the event.
Witnesses
Encourage the Companys witnesses to tell the truth and
understand that the Solicitor is on our side. The legal
profession can only give good advice if they know the
facts.
Some complex cases may require the services of an
expert who can provide the court with an experienced
and learned opinion about technical matters associated
with the events that have led up to the case. It is important
to note that obtaining all the evidence, including in some
cases experts opinion, may take some time. The Law
Society publishes a Directory of Expert Witnesses in
various subjects associated with the industry. The expert
chosen should be independent and have more substantial
qualifications and experience than the one used by the
Prosecution if it is intended to challenge their opinion.
Where an expert witness is involved it is important to
understand that he or she is a servant of the Court and
cannot be seen to be prejudicial towards one side or the
other. The experts main job is to write a balanced report
setting out the facts and the strengths and weaknesses of
the case. The more that the Prosecutions Expert and the
Defendants Expert can agree before the trial the more the
court will accept their opinion as this saves court time
which is, by its nature, expensive. However, this process
must still be managed through the Companys or

Individuals legal representative as experts can run out

of control.
The experts report or reports are important documents as
their findings can significantly influence the case strategy
and plea. The instructing Solicitor must therefore provide
a clear brief setting out the matters to be covered by the
report bearing in mind that its contents must be disclosed
to the Prosecution.
Finally, it is vital that the reports contents are presented in
a simple, clear fashion as, if the defendant does not
understand the points that the expert is making, neither
will the Court and, in the event of a Crown Court case,
the Jury. Getting the best out of an expert will demand
common sense, time, experience, patience and skill from
the Solicitor conducting the case.
Understand that the advice on the likely outcome may
change as the case develops and evidence comes to
light 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 be
confirmed to the Solicitors in writing by the Defendant.
Ego should not be allowed to influence the decision; a
not guilty plea must only be entered if the Company or
person named in the summons is confident that the
allegations are incorrect. A wrong decision to plead not
guilty can be expensive with costs far outstripping fines.
In weighing up the likelihood of conviction against the
potential costs, it must be recognised that the Companys
reputation with its Clients and prospective Clients has a
value which should be taken into account. The plea must
be confirmed to the court as early as is practical, bearing
in mind the need to collect and evaluate all the facts, as
the Court will take the promptness of a guilty plea into
account when considering sentence.
The first hearing is likely to be at a Magistrates Court. As
most Health, Safety and Environmental offences are
triable either way. A higher Court will lead to more costs
and the risk of more serious penalties. Both the
Companys
and
Enforcing
Authoritys
Court
Representatives take part in the mode of trial debate
although the Magistrates have the last word on this
matter. In either way offences the defendant has the
right to trial in the Crown Court if they so desire.
If a not guilty plea is likely to be entered or the case is
legally complex in nature the Solicitor may advise that a
Barrister should be instructed. Cases heard at the Crown
Court will nearly always involve the appointment of a
Barrister to act as the Companys Legal Adviser and
Advocate although new Court procedures allow specially
trained Solicitors to appear at the Crown Courts in
addition to Magistrates Courts which have been their
normal place of business.
As with expert witnesses, obtaining the services of a
Barrister with significant experience of Health, Safety or
Environmental matters is important to the likely outcome
of the case. As members of the public cannot engage
Barristers directly and must use the service of a Solicitor
as a go between the Solicitors assessment of the
Barristers knowledge, experience and track record
stimulated by pertinent questioning from the Company or
person involved is crucial in making the correct choice.
Solicitors support Barristers in the collection of the factual
and expert evidence, documentation and Court
proceedings. The evidence must be collated in a manner
that enables it to be readily and easily accessed before
and during the Court proceedings.

June 2003

The Trial
During the trail the prosecution presents their evidence
first, followed by the defence. Witnesses are not allowed
to be present in the courtroom before they have given
their evidence but must remain in the separate witness
room. Obviously, if they were in court they could hear
everyone elses evidence and this would clearly prejudice
their view of events.
Whilst both sides can call witnesses this is mainly
associated with not guilty trials. Solicitors and Barristers
are not allowed to practice witnesses in their evidence as
again this would be viewed by the Court as prejudicial.
Witnesses must be advised to stick to the facts they know
from first hand knowledge and nothing else. They should
also tell the truth and avoid confrontation with the
Enforcing Authoritys Legal Representative.
Before and during the trial Solicitors and Barristers on
both sides may attempt to reach agreement on certain
issues. The aim of this process is to save the Courts time
whilst ensuring a fair outcome for both parties. Evidence
which is non-contentious may be accepted by both sides
and therefore not brought before the Court. Similarly,
offences listed on the original Summons may be dropped
or amended.
It is important that a Senior Representative of the
Company, a Director, is present in Court to demonstrate
the Companys concern and commitment.
Similarly, the Company should provide a person, usually
the Health, Safety or Environmental Manager, who can
advise the legal team on aspects of the Companys
documentation, management system and facts that
emerge during the evidence presented during the trial.
Like other witnesses and persons involved in the case the
Adviser must be objective in his responses and tell the
truth. Like the legal team the Adviser must collate
paperwork associated with the case in a manner that
allows for prompt recovery before and during the trial.
The Verdict
The Magistrates or Jury, depending on the type of Court
where the case is heard, will hear all the evidence and
then retire to consider their verdict. In a Magistrates Court
the Clerk of the Court normally provides the lay
Magistrates with legal advice to assist them in their
deliberations.
The Magistrates or the Jury, at a Crown Court, return and
pronounce their verdict.
If the verdict is guilty then the defendants Solicitor or
Barrister will normally want to enter a plea of mitigation.
The Companys Adviser must be involved in the
preparation of this document which normally includes
positive facts about the Company, its Health, Safety and
Environmental record, as appropriate, previous
convictions and the improvement actions taken.
The plea of mitigation is heard and the Judge or
Magistrates, depending on the type of Court, announce
their sentence and hear submissions in relation to the
award of costs. It is normal for the side that wins to be
awarded all their reasonable costs and for the loser to
pay both sides costs. However, Courts use the level of fine
to indicate the level of culpability. This will also be related
to, what are called, aggravating and mitigating factors
such as the degree of injury experienced by the person
involved in an accident, the actions taken since the
accident to avoid a recurrence, the Defendants past
record over the previous five years etc. Direction on these
matters 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 aggravating
factors and present those agreed factors to the court
before sentencing; see (R v Friskies Petcare (UK) Ltd
(2000) It is vital that current, factual evidence associated

June 2003

with the Howe factors is obtained and made available

to the Court; this includes the last three years financial
results as these are taken into account when the fine is
determined.
Companies normally ask the Court for thirty days in
which to pay the fine and costs awarded against them. It
is important that a senior person, such as the Company
Secretary, tracks the Courts invoice and the Companys
cheque as it would be embarrassing, and could lead to
an additional Court appearance and costs, if the fine and
costs were not paid on time.
The Health & Safety Executive publish details of their
successful prosecutions on their Intranet web site
(www.hse.gov.uk). It is important that the Companys
Adviser or a Director checks the entry and asks the HSE
to amend any factual discrepancies.
Appeals and Close Out
Defendants who are of the opinion that something about
the Prosecution process, the Court proceedings or the
verdict is incorrect can appeal. This can be an expensive
process and Defendants should take legal advice before
considering this action. Like the plea it can be a
balancing act between protecting the Defendants
reputation, objecting about the conduct of the case and
assessing the likely expenditure in a dispassionate
manner.
The final act should be a case review involving all the
persons from within the Company associated with the
event. This is not a time for apportioning blame but rather
an opportunity to learn from the experience. The
proceedings must be formalised with, perhaps, the
Director responsible for the contract or Company
Managing Director chairing the event. Actions arising
from the discussion should be minuted and closed out
within a reasonable timeframe.