The prosecution report

• Preparing for approval
• Key contents of the prosecution report
• Information which the report should consider
• Timeliness of reports and time limits
• Approval Officers
• Views of the potential defendant

Preparing for approval

1. In order to prepare a report that will inform and assist the Approval Officer, you must understand the essence of the case and be able to explain both the circumstances of the case and whether the elements of any offence may be proved.
2. A prosecution report should be prepared for every prosecution case submitted for approval.

Key contents of the prosecution report

3. A prosecution report should include:
   • a contents list or index;
   • summary of the prosecution file for the approval officer (usually in the form of a covering memo), explaining where necessary any delay in completing the investigation and/or report;
   • the prosecution case, including draft informations;
   • the investigation report, consisting of the factual report and analysis, if the case arises from an investigation of an accident or incident;
   • a note of any points of law that may arise, together with any relevant case(s) and references to case reports or journals in which they are reported;
   • an EMM Enforcement Assessment Record form;
   • copies of witness statements, typed where appropriate, and any expert evidence;
   • copies of relevant photographs, maps or plans;
   • copies of any drawings or diagrams, labelled with measurements where appropriate, including those you or other investigators have produced to assist in the understanding of the facts;
   • any other documentary evidence (e.g. accident reports etc);
   • a summary or transcript of any PACE interview with the proposed defendant;
   • any correspondence with the defendant (e.g. previous letters of advice or warning);
   • copies of relevant HSE inspection records from the computer database, e.g. COIN/FOCUS records, relating to the inspection or investigation leading to the proposed prosecution or relevant contacts with the duty holder prior to the alleged offence;
   • a Companies House search confirming, for example: that the company is registered; the correct name of the company; the registered office of the company (for service of the summons); and whether the company is in the course of being wound up;
   • in the more complex or serious cases or where a not guilty plea is anticipated, completed schedules of unused material as required under CPIA. You should refer to the Disclosure section for further information on what should be included in CPIA schedules;
   • clear reference to any material, whether used or unused, which might undermine the prosecution case or assist the defence;
   • any documents and statements required to show the defendant's safety record;
   • a witness check for any previous convictions, if the case relies on the credibility of a particular witness;
   • the views of the victim, including any victim personal statement taken (see below).

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Information which the report should consider

4. In the report, you must identify the essential elements of the case and the most reliable admissible evidence by which each element will be proved. You should include any facts or information favourable to the defendant or which are likely to be employed by the defence, and any representations received from the defendant concerning the potential prosecution.

5. You should also consider what evidence may be required to rebut possible lines of argument from the defence; where an offence under consideration involves the failure to do something ‘so far as is reasonably practicable’, it is advisable to adduce prosecution evidence to show what measures it would have been reasonably practicable for the defendant to take. This may include, for example:

   • HSE or industry guidance, or expert evidence, to counter any potential defence arguments on foreseeability¹; or
   • where the defence may argue that the actions (or omissions) of an employee were not foreseeable, evidence of wider custom and practice, human factors or the hierarchy of control measures².
   See the section Proving the offence for further guidance on reasonable practicability, section 40 HSWA and ‘advance rebuttal’.
6. You should also record the views of the victim (injured person or bereaved) about the proposed prosecution. If a victim personal statement (VPS) has been taken, this should be provided to the Approval Officer. If the victim has not made a VPS, his/her views should nevertheless be considered in the prosecution report. The VPS scheme is one element in HSE’s policy on working with victims.
7. You should set out the aggravating, mitigating and other factors relevant to sentencing, so as to provide a clear summary for the approving officer. This will also facilitate the production of a Friskies schedule if the case is approved (see the section on Sentencing and Costs).
8. Where, because of the particular nature of a case, senior management has been kept informed of its progress, you should include details of senior management comments/input in the report.

Timeliness of reports and time limits

9. You should draw up a prosecution report and submit it to the Approval Officer as soon as possible after you have concluded your enquiries. You should meet any time standard set by your Directorate, and include in the report a written explanation for any delay. A defendant is entitled to "trial within a reasonable time" ³ and any undue delay in undertaking a prosecution may lead to the defence arguing that the prosecution is an abuse of process.
10. Most HSE cases may be heard either before the magistrates or at Crown Court ("triable either way"). Whilst there must not be unreasonable delay, there are no limits for laying the information in such cases. A few cases are summary only, and the informations must be laid within 6 months of the offence, unless s.34(3) and (4) HSWA apply.

Approval Officers

11. Section 18(1) HSWA imposes a duty upon HSE to make adequate arrangements for the enforcement of health and safety law. In all cases, the prosecution is conducted on behalf of HSE. However, it is important to distinguish the role of laying an information from that of bringing a prosecution.
12. In line with other enforcement regimes, the responsibility for laying an information lies with an individual, i.e. the inspector. The responsibility for deciding whether to commence a prosecution on behalf of HSE is a different role. This function, which involves assessing and approving cases for prosecution, is undertaken by the Approval Officer who is, in most cases, a Principal Inspector. In certain cases, the Approval Officer should consider notifying senior managers of the circumstances of the case before s/he makes any prosecution decision; a more senior officer may decide to take on the role of Approval Officer instead⁴.
13. When a file is forwarded to an Approval Officer, you will already have applied the standards under the Enforcement Management Model and obtained an indication of the type of enforcement action that HSE would normally expect to be taken. The proposed action is still subject to approval by the Approval Officer, who will have an opportunity to consider any relevant "dutyholder or strategic factors". The EMM helps to ensure that HSE meets its commitment to consistency, proportionality and targeting in relation to its enforcement decisions, in accordance with the Enforcement Policy Statement.

Views of the potential defendant

14. The Approval Officer will also consider the views of the potential defendant, or its representative in the case of a body corporate. Normally, the potential defendant will have been interviewed under caution during the course of the investigation (see Collecting Witness Evidence – Questioning of Suspects) and therefore will have been given an opportunity to put forward their views and representations in that interview. Where no interview under caution takes place (for example, where the potential defendant has declined an invitation to attend), you should invite him/her to provide any written representations s/he may wish to make in relation to the investigation. This is in line with the ‘Principles of Good Enforcement’ contained within the Government Enforcement Concordat.
15. If the potential defendant’s representations are obtained (either in an interview under caution or, in the limited circumstances outlined above, in writing) a significant period of time before the approval process, it will be necessary to check with the potential defendant at that stage whether they wish to make any further representations. This should be done in writing, unless you intend to hold a further interview under caution for other reasons.
16. Where written representations are received, they should not be treated as evidence against the person supplying them. However, they may be useful in other ways; for example, they may:
    • reveal further lines of enquiry; or
    • inform you of matters which may be relevant to the prosecution decision; or
    • provide new information which may be relevant to the public interest stage of the Code for Crown Prosecutors.

17. It is important that you do not question a potential defendant about an alleged offence without observing the Codes of Practice under PACE, as this may be viewed as unfair. If you invite a potential defendant to make representations (other than during an interview under caution), you should therefore always do so in writing.

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Footnotes

1. In R v HTM Ltd [2006] EWCA Crim 1156, the Court of Appeal held that, in assessing what measures it is ‘reasonably practicable’ for a duty holder to take in relation to the general duties under sections 2, 3 and 4 HSWA, the likelihood of a risk eventuating (which includes some consideration of what is reasonably foreseeable) is relevant.
2. The principles of prevention are set out in the Management of Health and Safety at Work Regulations 1999, regulation 4 and schedule 1.
3. Article 6(1) European Convention on Human Rights.
4. See OC 168/14 on Notification of prosecution cases, which gives guidance to Approval Officers on when they should consider notifying more senior operational line managers.