The Anatomy of a Health and Safety Prosecution
Investigation
After an accident who will turn up and what will they do?
If it is a fatal accident the first people to turn up almost inevitably will be the Police. They will come in, take control of the area where the accident has happened, ensure that none of the equipment or whatever else is involved is moved, get the names and details of any witnesses, possibly take some preliminary statements and generally secure the scene.
The Police have an interest in seeing if any purely criminal offences have been committed (like culpable homicide). They are also the lead investigating authority under the Corporate Manslaughter and Corporate Homicide Act (CMCHA 2007) as directed by the Procurator Fiscals service.
If the accident does not involve a fatality or there is no serious risk to the public the first organisation to attend will be the Health and Safety Executive. The HSE are in terms of the Health and Safety at Work 1974 empowered to ensure compliance with the act and the delegated (six pack) legislation and to investigate possible breaches.
Some of you may be aware in England the HSE prosecute cases in court themselves. In Scotland they report to the Procurator Fiscal who will prosecute on their behalf.
They also have the power where they think the work force or the public are at risk to suspend work activities until work practices have been made safe. A failure to follow a prohibition or improvement notice issued by HSE is a criminal offence.
Awareness
In the early stages of an investigation you may well find the Police and HSE working together in a joint team. The Police will normally remain involved until a view can be reached on whether a serious criminal offence (culpable homicide or a breach of CMCHA) has been committed. If not you will normally find that the HSE will take over the investigations to establish if any health and safety offences have been committed.
There is nothing wrong with the Police and HSE working together but it is important to understand they have different powers. As best you can you will want to try and confirm exactly who is doing what.
Imagine the scenario of an employee asked to give a statement. He or she goes in to a room and on the other side of the desk we have a Police officer and a health and safety inspector.
What are the employee’s rights, do they have to answer the questions and if so do they have any right against self incrimination?
It is important for those involved to know what the position is because individual employees can be jailed for health and safety offences under Section 7 or 37 of the Health and Safety at Work Act 1974.
The Police and HSE have different powers when it comes to statement taking
The HSE
If you are being interviewed as a witness by the HSE they will normally start with a voluntary statement. You should be aware that if you make an unsolicited admission during a voluntary statement which could be incriminating it can be used against you.
If you are unwilling to give a voluntary statement HSE have the power to compel you to give a statement under Section 20 of the Health and Safety at Work Act 1974. This is a power that the Police don’t have. If the statement is taken under Section 20 the person giving it has immunity from individual prosecution in relation to any information which the statement contains.
The third option is an interview under caution. This will be used when HSE think the person is a suspect or where something is said during a voluntary on Section 20 interview which alerts HSE to think that the individual may be a suspect. HSE inspectors will administer the caution before the statement begins. The caution advises the statement giver that they are ‘entitled to remain silent, anything they say may be used in evidence against them’.
If a caution is administered our advice is always to refuse to answer any questions until the individual has the opportunity to obtain legal advice.
The Police
If you are invited to give a statement by the Police in Scotland, you should confirm first if you are being interviewed as a witness or as a suspect.
If you are being interviewed as a witness your only obligation is to give your name, address, date of birth and national insurance number. You are not obliged to answer any further questions the Police may have. If you have any concerns about your own position in terms of self incrimination you should not give any additional information.
If you are being interviewed as a suspect, just as with the HSE, you will be given the caution at the outset and again our advice will be to say nothing until you have obtained separate legal advice.
The Police have the power to detain a suspect for the purposes of inquiry. You can be taken to a Police station, put in a cell, finger printed, photographed and have your DNA taken. If you are in that situation you should indicate to the Police that you want the benefit of legal advice and have it noted on the custody record. The law in this area is rapidly developing but broadly if you are not given the opportunity to consult with a solicitor before being interviewed any statement you give might not be admissible in subsequent court proceedings. Detention can be for an initial period of up to 12 hours. An extension of the detention period is possible if authorised by a Senior Officer.
Summary
HSE have power to compel a witness to give a statement under Section 20 but the statement giver is immune from prosecution in relation to the contents.
Police cannot compel you to give a statement but have the power to detain suspects for the purposes of interview. If detained suspects should be allowed to take legal advice before giving a statement.
Investigation/Recovery of Documents
The other major difference between the Police and the HSE is the extent of their inherent investigative power. The HSE under Section 20 of The Health and Safety at Work Act 1974 have very extensive powers to obtain documentation, seize equipment, enter premises, take photographs and generally obtain all materials necessary to allow them to investigate the circumstances of an accident.
On the other hand the Police have relatively limited immediate powers in that regard and tend to require to obtain warrants from the courts to allow more extensive investigations to be carried out.
Again when dealing with the collective investigation team it is important to identify who is making the request, for example for the production of documentation, and on what authority.
Practical Hints and Tips for Managing an Investigation
- Have a plan. Many of you will have disaster recovery plans perhaps even dawn raid protocols but we have not come across too many organisations who have an accident management procedure. It is certainly worthwhile putting one in to place. You will often find that you have other policies such as the ones mentioned which can be plagiarised to form the basis of the accident management procedure.
- Where are you going to put the investigation team? Can you accommodate them on site and continue your business? Can you keep them separate from your day to day activities and from getting access to witnesses other than in controlled circumstances. If the Police and the HSE are going to be in site for weeks, how are you going to manage that?
In terms of access to computer systems, can you set up a link which allows them to access things they might want to consider such as protocols and procedures but restricts access to other material they might not be entitled to see.
- Maintain a full list of all documentation passed on to the investigating agencies in either paper or virtual form and where possible ensure that copies are retained. Also maintain a full record of individuals from whom statements are obtained.
- If the investigating authorities are examining or dismantling equipment or if they want to take something away for analysis at one of their labs make sure that you photograph and record the original state of the item and if possible instruct your own expert witnesses to see what is going on and attend at any subsequent testing.
- In terms of instructing expert witnesses and/or carrying out internal investigations it is extremely important that consideration is given to litigation privilege. Generally an accused is entitled to investigate matters for themselves without concern that what they might find out could be recovered by the investigating authorities. As we are sure some of you are aware this exception has been somewhat eroded by recent cases and our advice is that any internal investigation report should be purely factual and that if something analytical is required external solicitors should instruct an independent expert to carry out the investigation so that the report produced ought to be protected by litigation privilege. If the report is instructed by in house lawyers litigation privilege may not apply.
The same would apply to the instruction of experts to assist with investigations. They should be instructed by external legal advisors on the clear understanding that they are to produce a report which will allow external legal advisors to give advice to the organisation being investigated so that a view on how to deal with any criminal or civil liabilities that may follow may be taken.
There may be a question of whether documents requested by the investigating authorities are either legally privileged or commercially sensitive. It is open to the party being investigated to argue that documents should not to be disclosed and there are ways in which this can be done.
6. Consideration also needs to be given at a very early stage to the question of conflict of interest. If employees are at risk of individual prosecution they should be given the benefit of separate legal advice and representation. If instructed on behalf of the company we cannot give advice to individual employees who may be concerned for their positions. Regularly when called on site we are required to contact solicitors from other firms who we have worked with in the past to ask them to attend urgently and give separate advice to individuals who may be concerned.
7. Managing the fall out from a serious accident particularly a fatality and coordinating the response to the investigation that will follow is an extremely time consuming process. In our experience companies have often found it best to bring in a small team of individuals from other parts of the business who have no connection with the event to manage the process. They should be nominated as the sole points of contact for investigating authorities and external lawyers and should be available on a 24 hour basis.
Those involved need to be of sufficient authority to be able to take decisions and they should be freed from their day to day activities so that they can focus fully on the task at hand. We have found that if taking instruction from a full board there is a degree of lack of flexibility and difficulty in coordinating the board to have them in the right place at the right time to allow effective management of an ongoing investigation.
Approaching things in this way also allows the majority of the company to get back to managing its day to day activities and perhaps means those who may have been involved in the event can focus on something else which might be helpful in terms of allowing them to deal with matters. Those who have been or feel involved in the event itself will experience a wide range of emotions and it is important that they have access to external support services via occupational health providers. In simple terms someone unconnected with matters to speak to if required.
Summary
Investigations after accidents are intense and stressful particularly in the early stages and you need to be prepared and have a plan, know your rights and your employees rights and of course consult with your solicitors at the earliest possible opportunity.
Being well organised and well advised will make the best of an unfortunate situation. The sentencing guidelines which we will touch upon a little later make it quite clear that one of the factors to be taken in to account when discounting a sentence is the extent to which the entity being prosecuted cooperated during the investigation phase.
It is very difficult to assess the likely timescale for the investigation process. Simple accidents might take six months but more complicated incidents can take two years or more.
Prosecution
Once the HSE or Police have concluded their investigation they will report to the specialist health and safety prosecution division of Crown Office. The unit was created in October 2008. It consists of Procurator Fiscals working in three teams. Scotland North based in Aberdeen, Scotland east based in Edinburgh and Scotland West based in Glasgow. The teams have a direct connection with the senior prosecutors based at crown office at Edinburgh. The overall aim is to ensure that there is expertise consistency and efficiency in terms of dealing with the health and safety cases.
Even before the matter is reported to the health and safety unit, if HSE are the investigating authority quite often one will find that they will visit the party investigated and see what they have to say about the findings/criticisms the HSE have outlined. This is not a formal requirement but it does often happen before HSE report it to the prosecution unit.
Once a decision has been taken to prosecute by the specialist unit at Crown office the Fiscal delegated to handle the case will engage with the solicitors appointed on behalf of the entity to be prosecuted for two reasons. Firstly they are obliged to disclose copies of statements and documentation to the appointed solicitors to allow fair advice to be given to the accused and secondly they want to ascertain if there is any scope for resolving the case at an early stage.