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Drafting informations

Preparing the case

The purpose of an Information

  1. In health and safety cases, criminal proceedings are commenced by the laying 1 of an Information in the magistrates' court 2. The Information is normally accompanied by a summons, which is intended to secure the accused's attendance at court, in order to answer the allegation(s) made against him/her contained in the Information.
  2. An Information must be prepared and laid before the relevant magistrates’ court to initiate the prosecution. However, the purpose of the Information is not only to initiate proceedings. It is also, with the summons based upon it, to inform the accused, in clear and unambiguous language, of the alleged offence(s) so that an accused can consider how s/he intends to plead and, if appropriate, commence preparation of their defence or mitigation.
  3. Article 6(3)(a) of the European Convention on Human Rights ("ECHR") requires that "everyone charged with a criminal offence has the right to be informed promptly in a language that he understands and in detail of the nature and cause of the allegation against him".
  4. The particulars of the Information, i.e. the description of what the alleged offence involved, should seek to give sufficient detail to meet this requirement, although it will also be appropriate to provide further detail by way of Advance information.
  5. If the defence seek more details on the nature of the allegation against the accused, they are likely to rely on both the provisions of Rule 7.2 of the Criminal Procedure Rules 2005, which requires sufficient detail of the charge to be given (see below), as well as the ECHR.

Duplicity

  1. Only one offence may be charged in any one information 3, although a single summons can contain several separate Informations, providing they are set out separately within the summons 4. An Information, which charges two or more offences, is bad for ‘duplicity’.
  2. Although the duplicity rule sounds straightforward, it can be difficult to apply in practice, as sometimes it is not clear what amounts to "an offence". It is helpful, when considering whether acts of an accused amount to a single offence, to consider whether those acts can properly be seen as forming a single activity 5. If they are separated "in time and place", or have no common purpose, separate Informations will be required.
  3. For example, breach of a regulation requiring an appliance to be provided and used creates two offences; one Information alleging that the appliance was not provided, a second alleging that it was not used. Including both offences in the same Information would be bad for duplicity. 6
  4. If there is a breach of a continuing duty, it is not duplicitous to allege that an offence took place between two dates. However, if the duty has been breached in different ways between these dates, this may be deemed to be duplicitous. For example, if on one date there was no guard fitted to the machine, and on another date the guard was present but the operative using the machine was untrained, although there was a continuing breach of the duty to ensure the health and safety of employees, the breach creates separate offences; they should be contained in separate Iinformations.
  5. Certain regulations set out a hierarchy of duties, requiring a risk to be first prevented and second, where this is not reasonably practicable, reduced. 7 In these circumstances, an Information should clearly set out which of the breaches is being alleged. If you cannot tell whether the dutyholder has taken steps to comply with either duty, two separate Informations may be laid as alternative Informations, although best practice is to specify the alleged breach.
  6. If an Information alleges one offence, the fact that the evidence at the trial may reveal two offences does not make the Information bad for duplicity.8 However, the prosecution must prove the accused guilty of the precise offence alleged in the Information/summons, and not some other offence shown by the evidence. 9 It is for the prosecution to prove that the defendant is guilty of the offence for which s/he is brought before the court. An accused is only required to defend him/herself against the offence alleged in the summons.

Curing duplicity

  1. A magistrates' court cannot proceed on the basis of an Information that charges more than one offence 10. If an Information is duplicitous, it will need to be amended before the hearing.
  2. If you intend to apply to the court to amend the Information, you should, where possible, notify the defence by letter in sufficient time for them to consider the matter before the hearing. This notification may avoid the case being adjourned.
  3. Where, on a defence application, the court finds that the Information is duplicitous, the magistrates will require the prosecutor to elect the offence on which the prosecution wishes to proceed. The court will then strike out the other allegation. If the prosecutor refuses to make the election, the Information must be dismissed.

The particulars of the Information

  1. The "particulars" of the Information should 11:
    • identify the defendant by giving full details of name and address. In the case of individuals (including partners within a partnership), the date of birth and, whenever possible, the National Insurance number should also be included12;
    • describe the offence in ordinary language, avoiding so far as possible the use of technical terms, although it need not necessarily state all elements of the offence;
    • give sufficient detail of the alleged offence to amount to "reasonable information" of the nature of the allegation 13; and
    • refer to the statutory provision which creates the offence.

Errors in the Information

  1. Duplicity is an example of an error in the Information that makes the Information defective. However, there are other types of defects that can occur: for example, the Information may not meet formal legal requirements or, as a trial proceeds, there may be a discrepancy between what the particulars of the offence allege and the evidence that is before the court.
  2. Some defects in an Information (and in a summons based upon it) are more serious than others. They can be split into three broad categories:
    • First, an error may be so minor that no amendment is required. If the defendant knew the true basis of the allegation in the Information, a conviction will be upheld even on an unamended Information. 14
    • Second, an error may be substantial enough to require amendment but not so serious that it cannot be cured. Examples include:
      • The wrong date of offence;
      • The place of the offence is inaccurately described;
      • The defendant is wrongly named (but is not the wrong defendant).

      In such a situation the court has the power to allow an amendment, although the defence may be allowed an adjournment in the interests of justice.

  1. Third, an error may be so serious that it cannot be cured by any amendment. In such a case, the charge alleged will fail. For example, if the wrong defendant is named in the Information, it cannot be amended to show the name of a different defendant. A new Information would have to be issued with the correct details and a new summons served.
  2. Where a defective Information is not amended, it may be dismissed or any conviction based upon it quashed on appeal. 15 An attempt to secure a conviction by the laying of a second, remedied Information, may be barred because the defence may claim that the accused has already technically been acquitted, under the doctrine of "autrefois acquit" 16.
  3. Similarly, where a summons has been addressed and served on the wrong company, it is not possible to amend the Information and summons by substituting the name of another company. 17
  4. Amendment of the summons can take place at any time until the justices are "functus officio" (i.e. they have performed all their duties in the case) 18. This means that an Information can be amended after the expiry of the six month statutory time limit for summary offences, even to allege a different offence, provided that the different offence alleges the "same misdoing" and the amendment can be made in the interests of justice 19.

Offences causing injury

  1. Where an accident has resulted in injury to a particular person, it is advisable to avoid alleging in the Information that the injured person was the one person at risk. This focuses attention upon the specific circumstances of the accident and the person’s behaviour, which may allow the defence to argue that the person’s behaviour and danger were not foreseeable, or otherwise limit the scope of any duties properly in issue.
  2. It is usually appropriate to either allege the danger generally, or say "including X" (the injured person).

References to legal provisions

  1. If an offence is created by or under an Act or subordinate legislation, the Information must refer to the appropriate section of the Act, order or regulation. 20 Significant departure from the wording of the statutory provision should be avoided (although you should also try to ensure that the allegation is put in plain English). For example, if the offence alleges a breach of section 2(1) and incorporates a failing mentioned in one of the sub-paragraphs of section 2(2),21 it may be appropriate to add "... and in particular that", followed by details of the relevant breach of duty.

Exceptions etc.

  1. You do not necessarily have to state all the elements of the offence in the particulars.22 For example, it is not necessary to negative any matter upon which the accused may rely. 23 In such cases, the onus of proving any "exception, exemption, proviso, excuse or qualification" relied on by the defendant is on the defence . 24

Date of the offence

  1. Although it is not essential 25 to put the precise date when the offence is alleged to have occurred, whenever possible the Information should allege a single offence on a particular day. If the exact date is not known, you should state that the offence occurred on a day unknown between certain dates. Unless the offence is a continuing offence, an Information alleging that an offence was committed on a number of days is bad for duplicity 26, and simply stating that the offence was committed between two given dates may cause the same problem.

Offences occurring over a period of time

  1. A single offence does not necessarily take place only on a single day; it may continue (continuously or intermittently) over a period of time 27. It is possible in such cases either to select a single date for the Information and summons (for example, the date of an incident that resulted from the breach), or to allege that the offence occurred over a period, between two given dates. You will need to consider carefully which option is more appropriate in your case. Important factors will be any time limits in which to commence proceedings (see below) and, above all, the evidence available; it must be sufficient to satisfy the evidential requirements of the Code for Crown Prosecutors for the offence as described on the Information (see the section Approving prosecutions. You will also wish to put the extent of the breach (which includes whether it continued over a period) before the court, as this is a relevant factor at sentencing; this may, however, also be achieved by way of the Friskies schedule and, depending on the circumstances of the case, it may be more appropriate to inform the court in this way.
  2. Certain offences may be argued to arise on each day that a duty holder acts (or fails to act) in a particular way, such as offences under the Employers’ Liability (Compulsory Insurance) Act 1969 for failing to have the required insurance and failing to display a copy of the insurance certificate. In such cases, you will also need to consider whether it would be inappropriate (and possibly oppressive) to lay an Information for each day on which an offence can be proved to have been committed.
  3. Where the offence involves a failure to notify or report an accident, you may allege that the offence occurred at any time up to the day before the date on which the notification was sent (if at all). This should preferably be the earliest date on which the offence was committed, i.e. the date on which the notification or report should have been sent.
  4. Where a relevant statutory provision requires something to be done within a fixed time, the offence continues until it is done. 28 You may allege that the offence occurred at any time after the fixed time period expired (preferably on the earliest date on which the offence was committed, such as the day following the expiry date). Where an enforcement notice has not been complied with, the offence will be committed on the day after the date given for compliance. Alternatively, you may allege that the offence was committed between two specified dates29. For the sake of certainty, and provided there is sufficient evidence in support, the offence may be said to have been committed between the day after the compliance date on the notice and the day before the notice was complied with (or the information was laid, if earlier).

Time limits

  1. For summary-only offences (offences which can only be heard in the magistrates’ court), the usual rule is that a magistrates’ court will not try an Information unless it was laid within six months from the time when the offence was committed 30. The day on which the offence was alleged to have been committed is excluded for the purposes of calculating the time limit31; for a summary-only offence allegedly committed on 10th January, therefore, the latest date by which the Information should be laid is 10th July.
  2. However, where the offence is committed under one of the relevant statutory provisions and the accused is subject to the provision as "the designer, manufacturer, importer or supplier", the prosecutor may commence proceedings at any time within six months from the date on which sufficient knowledge to justify a prosecution comes to the prosecutor’s knowledge 32.
  3. In certain situations (for example, where there has been difficulty in locating a defendant), a new summons may be required from the court. A court might request that you provide a second Information. You should not do so, as this is liable to be considered as a new Information33 which might be out of time. It is also unnecessary, as the court is able to issue two or more summonses based upon the original Information.34

  4. Whether or not proceedings are commenced within time limits, any unnecessary time delays could allow the defence to raise issues concerning fairness.

Location of the offence

  1. In order to provide the defendant with sufficient particulars of the nature of the charge35, it will often be appropriate to include the location of the offence on the Information and summons. However, this is not essential and, indeed, it may not be possible in some cases to state that an offence was committed at a particular (or known) location or it may be misleading to do so. Whilst it is preferable to include the location of the offence, you may, in appropriate cases, omit reference to it.
  2. The matters giving rise to the breach may have occurred at several locations but nevertheless still amount to a single offence (see ‘Duplicity’ above). Where giving details of all the locations within the Information and summons would be impractical, the offence may, for example, be stated to have been committed "at various locations within [town/county/England and Wales]".

Penalty

  1. The Information should not refer to the penalty which may be incurred, but should refer to the section in which the penalty is contained. Where the penalty section has been frequently amended, such as s.33(2) HSWA, it is not necessary to detail all amending statutes; it will be sufficient to cite the originating section accompanied by the words "as amended" (see, for example, the table of maximum penalties).

Requests for further particulars

  1. The defendant may make a request for further particulars at any time after the charge is ‘preferred’ (laid before the court). The court has the power to require the prosecutor to give such particulars.
  2. The guiding principle is that the defendant should be clear as to the nature and scope of the allegation, and the time and place that any breach is alleged to have occurred (if applicable).
  3. This clear and candid approach is important to:
    • ensure fairness;
    • encourage a transparent process; and
    • allow defendants to mitigate or contest allegations made against them before the court in an informed manner.
  4. You should comply with any reasonable request for further particulars by seeking to clarify the case. However, as the summons, advance information and Friskies schedule will normally provide the defence with sufficient particulars of the offence, this should not be necessary.

Footnotes

  1. An information is "laid" when it is delivered to the court office – R v Manchester Stipendiary Magistrates, ex p Hill [1983] 1 AC 328.
  2. There are other ways of commencing proceedings, for example by arrest and charge. However these are not available for Health and Safety prosecutions.
  3. Rule 7.3 Criminal Procedure Rules 2005.
  4. Rule 7.7 CPR 2005.
  5. DPP v Merriman [1973] AC584.
  6. Case law on duplicity is decided on the particular facts of the case. However, Carrington Carr Ltd v Leicestershire County Council [1993] Crim LR 938 provides examples of potential duplicity. Other cases are Hoggetts v Chiltern District Council [1983] 2 AC 120 [an Information alleging that the defendant had on and since a particular day allowed land to be used in contravention of an enforcement notice was not bad for duplicity] and Cullen v Jardine [1985] Crim LR 668 [an Information alleging that the accused felled 90 trees over a three day period was not bad for duplicity].
  7. See, for example, Control of Asbestos Regulations 2006, reg.11(1)(a) and (b).
  8. R v Greenfield [1973] 1 WLR 1151.
  9. R v Griffiths [1966] 1 QB 589.
  10. Rule 7.3 CPR 2005.
  11. Rule 7.2 CPR 2005.
  12. An individual's date of birth and NI number should be requested during the investigation, for example at the interview under caution, or by letter (NB the request need not be made under caution). Should the defendant refuse to provide these details, you should still lay the Information but be prepared to explain to the court the steps you took to try to obtain the details.
  13. If there is insufficient detail in the Information the court may require the prosecution to give better particulars of the allegation: Stephenson and Johnson [1954] 1 All ER 369.
  14. Garfield v Maddocks [1974] QB 7; R v Sandwell Justices, ex parte West Midlands Passenger Transport Executive [1979] RTR 17.
  15. Hunter v Coombs [1962] 1 All ER 279, 108 JP 300.
  16. Halstead v Clark [1944] 1 All ER 270, 108 JP 70.
  17. R v Greater Manchester Justices ex p Aldi GmbH and Co KG [1994] 159 JP 717; Marco (Croydon) Ltd v Metropolitan Police [1984] RTR 25, [1983] Crim LR 395.
  18. Allan v Wiseman [1975] RTR 217.
  19. R v Scunthorpe Justices ex p McPhee and Gallagher [1998] 162 JP 635.
  20. Rule 7.2(3) CPR 2005.
  21. Note that the matters referred to in s.2(2) are only examples of the matters to which the s.2(1) duty refers. They do not constitute separate offences and, as such, there can be no question of duplicity if several of the ‘matters’ in s.2(2) are relied upon: Health and Safety Executive v Spindle Select Ltd, The Times, 9 December 2006 (DC).
  22. Rule 7.2(2)(a) CPR 2005.
  23. Rule 7.2(2)(b) CPR 2005.
  24. S.101 Magistrates’ Courts Act 1980.
  25. R v Dossi (1918) 13 Cr App R 158; R v Browning & Others [1974] Crim LR 714.
  26. R v Thompson (1914) 9 Cr App R 252; R v Robertson (1936) 25 Cr App R 208.
  27. Hodgetts v Chiltern District Council [1983] AC 120, HL.
  28. HSWA 1974, s.34(2).
  29. Hodgetts v Chiltern D.C. (above), which concerned non-compliance with an enforcement notice served under the Town and Country Planning Act 1971.
  30. Section 127 Magistrates’ Courts Act 1980.
  31. Marren v Dawson Bentley & Co Ltd [1961] 2 All ER 270.
  32. HSWA 1974,s34(3).
  33. Network Sites Limited v London Borough of Havering (1997) 161 JP 513.
  34. Ex parte Fielding (1861) 25 JP 759; R v Clerkenwell Magistrates’ Court, ex parte Ewing and Clark (1987) The Times, 3 June.
  35. Rule 7.2(1)(b) CPR 2005 – see above.