Health and Safety
Executive / Commission
Enforcement Guide (Scotland)
A witness statement is a document recording the evidence of a person who you have spoken to, which is signed by that person to confirm that the contents of the statement are true.
In general, the statement should only contain information on what the witness saw, and not what others have said to him / her. However, it is important to record anything that may open up a new line of enquiry or help in corroborating other information. 1
In Scotland, in the past, a witness statement was not normally considered to be evidence in its own right. This was because witness statements are classed as hearsay when led as evidence of the truth of their facts. However, where a statement is led in evidence only to prove that it was made, then that was and remains quite legitimate. There are several exceptions to the general hearsay rule.
A witness statement is a document recording the evidence of a person to whom you have spoken, which is signed by that person to confirm that the contents of the statement are true. There are several ways in which witness statements can become crucial at a trial, and these make it important that all statements are recorded with particular care and accuracy.
Section 259 of the Criminal Procedure ( Scotland) Act 1995 allows hearsay evidence to be admitted in a number of situations: where the maker of the statement is dead, unfit or unable to give evidence, or where a witness refuses to answer questions, then, evidence from a prior statement can be put to him/her. There have been several challenges to these statutory provisions on the basis that their operation can breach an accused's right to a fair trial under Article 6 (Schedule 1 Part 1) of the Human Rights Act 1998. It has been argued that where hearsay evidence provides corroboration for the Crown's case then, the accused is being denied a fair trial because the accused is not given the opportunity to examine witnesses who are against him/her. The general approach of the Scottish courts has been to leave the question of fairness to the trial judge; if hearsay evidence is assessed to be unfair to the accused this might lead to a trial being deserted or the jury directed to acquit.
Witness statements, under the common law of Scotland, could always be used in evidence when the original statement differs from the evidence a witness gives in court. Here witness statements are being used to challenge the credibility of the witness by highlighting the inconsistency between evidence provided in a statement, and evidence given at trial.
Witness statement can also be used to fill a gap in a person's recollection. The case of Jamieson v HMA (No 2) 1994 SCCR 610 was of importance for prosecutors in Scotland for it held that if a witness in court was unable to recollect what was said to the police, that gap could be filled by police evidence of what was said, provided the witness stated that what was said to the police was the truth.
In addition to these common law exceptions to the hearsay rule, s260 of the Criminal Procedure ( Scotland) Act 1995 provides that
"… any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of proceedings."
This section applies to statements that would not be admissible under the common law, and allows any prior statement by a witness (not an accused) to be admissible as evidence of any matter stated in it. The second part of the section makes provision for a witness adopting as his/her evidence an earlier statement contained in a document. This seems to have been intended to give legislative force to the Jamieson case, however, that case applies to all statements, not just those contained in written documents. Prior statements, which are not recorded in writing, remain admissible on the authority of Jamieson.
In general a witness statement should only contain information on what the witness saw, and not what others have said to him/her. Hearsay evidence is not normally admissible except as provided for in the common law and in the statutory examples noted above. In addition, s259 of the Criminal Procedure ( Scotland) Act 1995, allows a judge to admit hearsay evidence in limited circumstances, such as the death or mental unfitness of the witness who made the original statement.
It is important to bear in mind that, where an offence has been committed by a body corporate, directors, managers, company secretaries or other similar officers of a corporate body may also be guilty of an offence under HSWA section 37.
These are people in positions of authority within the corporate body who have both the power and responsibility to decide corporate policy and strategy. 2 Whether such a person is a suspect in your investigation will depend on the evidence that you have collected.
You are under a duty to follow all reasonable lines of inquiry. this may include investigating the involvement of individuals in any suspected breach. 3 However, HSC’s Enforcement Policy Statement recognises that it may be necessary to target your investigation (e.g. towards the person best placed to control the risk).
Usually, you will only be in a position to decide whether an individual should be interviewed under caution once those lines of inquiry are completed. If, at that stage, you are satisfied that a person in a senior position is not a suspect, then you can, if necessary, request a statement from that person.
This category will include managers, supervisors and other similar people who do not fall within the category above. It will also include employees and self-employed people. These people may have knowledge of the particular incident that you are investigating or the unsafe situation that gave rise to the investigation. They might also be able to deal with matters relating to the extent of the breaches that you are investigating (e.g. their knowledge of the risk and the ability to avoid the risk, including system of work, training, instructions, supervision etc).
Statements taken from people within this category should include details of their employment status (whether they are employed or self-employed). If they are employed, you should record details of their employer, together with their position or post.
You should bear in mind that people within this category may also have committed an offence under HSWA section 7 and/or section 36. If you have reasonable grounds to suspect that a person has committed such an offence, you should not seek to obtain a witness statement from them. They should be questioned in a formal interview under caution in accordance with the provisions of PACE.
You should see also Prosecuting individuals, for information on the prosecution of individuals.
Section 20(2)(j) HSWA gives you the power to require any person whom you have reasonable cause to believe will be able to provide information relevant to your examination or investigation, to answer such questions as you think fit to ask and to sign a declaration of the truth of the answers. It is an offence for any person to contravene any requirement imposed under section 20.
Information obtained using this power can be recorded using form LPS 10. You should only record the information provided to you, that is, the answers given, not the questions. It is essential that you make it clear to the witness that you are using your compulsory powers before asking any questions.
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Answers given by a person compelled to answer your questions are not admissible as evidence against that person or their spouse (section 20(7) HSWA). As such, using section 20 powers will be inappropriate when questioning an individual whom you have grounds for suspecting may have committed an offence. If you have any doubt, then, a voluntary statement should be taken in the first instance.
These are taken from witnesses who are not suspects, when it is considered unnecessary, or inappropriate, to use the section 20 powers to require answers to questions. An example would be interviewing a cooperative member of the public who has witnessed an incident. Such statements should be taken on form LPS 9.
In Scotland all statements taken by the investigator and submitted to the Procurator Fiscal will be disclosed to the defence prior to trial. If asked by the witness they should be informed of this. Before sending copies of statements to the defence, the Fiscal will edit (redact) sensitive information. Fiscals have indicated that guidance from the investigator will assist them in this process and the statement forms have been designed to allow none disclosable information to be separately recorded. Investigators should discuss this aspect with the witness to identify sensitive information. This could include personal details and medically in confidence information. The final decision on redaction is for the Fiscal, so no promise that information will be withheld should be made.
You should take statements under caution (confusingly sometimes called voluntary statements) from anyone whom you think it is possible may be prosecuted. Statements under caution should be sought from any director against whom you are considering proceedings under s37, or employee under s7 (see Prosecuting individuals).
As far as possible, the nature of the enquiry being undertaken should be explained to the interviewee. You should identify yourself and others present by name and grade and explain that you are not using your section 20 powers to require answers. The interview should be conducted sitting down and as far as possible in comfort with proper breaks for refreshment.
There is a distinction evidentially between statements of witnesses and statements made by an accused. To an extent, pre-trial statements made by an accused are admissible in evidence so long as they have been obtained fairly; this applies both to statements taken during a preliminary investigation and when the accused is a suspect. The law is not, however, free from difficulty. There have been a series of conflicting decisions in this area and it is difficult to state the law with complete certainty.
What is clear is that the courts will examine statements made when an individual has become a suspect more closely, mainly because the courts have a special duty to safeguard suspects. 4 This is why it is important to ensure that suspects are cautioned, and, when a person becomes a suspect during the course of questioning that a caution is administered once that person's status changes from witness to suspect. As such, if suspicion falls on the interviewee and you require to ask further questions you should, before doing so, caution the suspect in the presence of another inspector.
Whether the questioning has been fair or not (and therefore admissible in evidence) will depend on the circumstances of each individual case. Answers must not be elicited by unfair means including undue pressure, cross-examination, bullying or trickery.
The form of caution that should be used is as follows:
"You are going to be asked questions about (description of offence); you are not bound to say anything but anything you do say will be noted and may be used in evidence. Do you understand?"
Although there is no prescribed form of caution, these words will adequately cover the requirements of fairness to the accused. It is important that each element of the caution is clear, and particularly important that the suspect understands that he/she is not bound or obliged to say anything.
When describing the offence you should not state potential breaches, rather describe briefly the matters which you think may have given rise to an offence that you are investigating.
It is crucial that the terms of the caution are fully noted by you (and the corroborating witness) at the time and that any replies made are similarly noted verbatim. You will be permitted to refer to these contemporaneous notes when giving evidence in court. Clearly the terms of the caution are highly relevant to any incriminating statements made; a failure to caution a suspect fully could result in the statement being ruled inadmissible.
The attitude of the interviewee to caution is something that may be of interest to the Procurator Fiscal in developing the case in court and should be pointed out in the report. It should be borne in mind that the silence of the accused in response to caution and/or charge cannot corroborate guilt.
A verbatim note of the interview should be taken on plain paper, which can be used as a production in court. Only one record of the interview should be made as it is unlikely that a record made by the corroborating witness will exactly match, and any discrepancies will leave the record of the interview vulnerable to defence challenge. The record should note the place and time of the interview and the names of all persons present. To aid identification you should record the date and place of birth and National Insurance Number of the suspect. Any difficulties in obtaining that information should be discussed with the Fiscal who may ask the police to assist.
Ideally, the statement should be shown/read over to the interviewee who should be asked if they accept that it is accurate and asked to sign it. Any refusal to do so should be noted by you. The corroborating witness should also sign it.
Following advice from Crown Office, you should not use tape recording equipment when interviewing. If you feel that in the particular circumstances of a specific case its use might be merited, you should contact the Procurator Fiscal for advice on the matter.
If a suspect makes unsolicited comments outside the context of an interview but which might be relevant to the offence, you should make a written record of the comments. You should sign the record and record the time the comment(s) were made.
You should also give the suspect the opportunity, where practicable, to read the record and sign it as correct or to indicate the respects in which they consider it inaccurate. Any refusal to sign should also be recorded.
You must not try to obtain answers by the use of oppression. Such an approach is likely to mean that any evidence obtained is inadmissible.
You must not indicate, except in answer to a direct question from the person being interviewed, what action HSE will take against them if they answer questions or refuse to do so. To do so could be seen as an oppressive approach
As soon as you believe that a prosecution should be brought against a suspect, and that there is sufficient evidence for a prosecution to succeed, you should ask if the suspect has anything further to say. If the suspect has nothing further to say, then you should immediately cease questioning the suspect about that offence.
Witnesses often ask to be given a copy of their statement. On advice from Crown Office such requests should be refused. The aim is to avoid witnesses "swotting up" their statements prior to appearance in Court.
However, inspectors should be aware that the Procurator Fiscal will now disclose witness statements to the defence prior to trial. If witnesses ask when being interviewed whether their statements will be disclosed then they should be informed of the Fiscal's current practice. In some circumstances the Procurator Fiscal may be able to withhold parts of a statement, such as the witnesses address if there is a risk of intimidation. Any concerns expressed by the witness should be noted for the Fiscal.
A Note about the demeanour, apparent reliability of the witness and any other relevant factors e.g. a severe speech impediment should be prepared and accompany the statement (LPS 6).
Every person has a right not to incriminate themselves, both under domestic law and under the fair trial provisions contained in Article 6 of the European Convention on Human Rights. 5 This right presupposes that the prosecution in a criminal case will seek to prove the case against the accused without resort to evidence obtained through coercion or oppression of the accused. Section 20(7) HSWA protects this right by preventing the use of a compelled statement against the maker of the statement (and their spouse).
Although a compelled statement taken under section 20(2)(j) is not admissible in evidence against its maker, there may be situations where it will be necessary to rely on the evidence of a director who has been compelled to make such a statement against the company.
It may be argued later that the director should be regarded as "the company" and therefore cannot be compelled to give evidence against the company as this would infringe the company’s right against self-incrimination.
However, the courts have held that, although the general privilege against self-incrimination, which allows a person to refuse to answer a question that could expose them to a risk of prosecution, can be claimed by a company or any other body with legal personality, 6 it is limited to the person who makes the statement. This means that a director cannot claim the privilege against self-incrimination to avoid incriminating the company or to prevent the company disclosing information that would incriminate the director. 7
Towards the end of the investigation, once all lines of enquiry have been considered, a meeting should be requested with a director/senior manager of the company or organisation being investigated. The purpose of this meeting is for HSE to explain the outcome of our investigation and our proposed action. The company may then present its explanation/mitigation.
It is important to make it clear that this process is not an interview, but a meeting. The purpose is not to elicit evidence or admissions, but rather to give the company the opportunity to explain themselves. They do not have to accede to any such meeting. They should not be told they are to be prosecuted, as that is a decision for the Fiscal. They should be informed that a report is being sent to the Fiscal and the issues in the report should be outlined so that they can respond. Remember, that just as the Fiscal may decide not to proceed despite a recommendation to prosecute, the Fiscal may decide to implement proceedings against an HSE recommendation, so no indication, to a duty holder, should be made following an investigation, that they will not be prosecuted.
In the event that a body corporate (e.g. a company) is invited to attend an interview under caution, you should ask the body corporate to nominate a person to attend the interview under caution to answer questions on its behalf.
It sometimes happens that a company (or other body corporate) that is invited to nominate a representative to attend an interview under caution nominates a person who you suspect may have committed an offence in their individual capacity (e.g. as a director or senior manager pursuant to HSWA section 37) and who you may therefore intend to interview under caution as an individual. Where this happens, the company should be asked if there is anyone else who they can nominate to attend instead to speak as the company’s nominated representative.
If the company cannot nominate a different person (e.g. because there is only one director), there should be two separate interviews under caution, one of the company (through its nominated representative) and one of the same individual in their personal capacity. The order in which the interviews are conducted will depend on the circumstances of the investigation. You must never conduct just one interview where the individual is asked to answer questions both on his/her behalf and on behalf of the company – it would be impossible to identify which answers are admissible against each and the entire interview is likely to be inadmissible in any later court proceedings.
Where two interviews are to take place, it may be possible to conduct both interviews on the same day for the convenience of all concerned, but this may not be possible in more complex cases. It should always be made clear in advance in which capacity a person is being interviewed, either in his/her capacity as an individual or as the company’s nominated representative. Where both interviews are being conducted on the same day, it should be absolutely clear that you are conducting two separate interviews. A separate set of tapes should be used for each interview. You should make it completely clear, when cautioning at the start of each interview, in what capacity the person is being interviewed.
Victim Personal Statements are not required for health and safety offences in Scotland though the procedure is being piloted for other offences in some areas. In the meantime Inspectors should ensure that the views of victims are considered, as set down in the public interest considerations in the Crown Office and Procurator Fiscal Service 'Prosecution Code' (Taking account of the views of victims[PDF 27KB]
refers), and that this is included in the report to the Fiscal.
The circumstances of the investigation will dictate whether or not it is appropriate to see witnesses with the knowledge of their employer (or another person). In determining the arrangements for interviews, you will need to use your discretion in this respect so as to ensure that the witness feels most able to assist the investigation, free of any risk of intimidation (intended or otherwise).
In many cases, dutyholders will voluntarily assist you with making suitable arrangements to interview witnesses. However, should this not prove to be the case, you have a number of powers to require this under section 20 HSWA including the power to require any person to afford you such facilities and assistance as are necessary to enable you to exercise your powers (section 20(2)(l)). This can include facilities to see witnesses in private (subject to a person’s right to have another person present if you are requiring information under section 20(2)(j)). You do not have to make appointments to see employees via their employer. However, you should arrange to see potential witnesses at an appropriate time.
In some cases it may be more appropriate to obtain the home contact details of the potential witness and contact them there. Ensure you follow HSE’s personal safety advice in the section Your Health & Safety on the HSE intranet.
Witness statements should normally be taken as soon as possible to ensure that:
This approach will give you the best evidence from the witness and make it more difficult for the defence to challenge the witness’s evidence.
All witnesses should be treated with courtesy and every attempt should be made to put witnesses at their ease. It is preferable to speak to witnesses in a private room so that there is a more relaxed environment. At the outset, you should explain to the witness that the primary aim of taking a statement from them is to find out what happened.
Any statement should be written and signed in ink. Witness statements should be drafted so that they are concise and to the point. They should only deal with matters within the direct knowledge of the witness. As far as is possible, you should try to record the witness’ own words.
You may find it helpful to take notes before beginning to write the statement. Once the statement has been completed you should offer to allow the witness to read it; otherwise you should read the statement over to the witness before it is signed. If there are any alterations on the statement, these should be initialled by the witness.
When questioning the witness you should ask all relevant questions ie pursue all reasonable lines of enquiry, whether these point towards or away from the potential accused.
Your primary concern is with obtaining the best evidence possible from witnesses. Therefore you will want to know, and should ask, whether the witness has discussed their evidence with anyone else (including the solicitor representing any suspect eg a company/employer or another person). If there is any information relevant to the weight to be attached to a witness’ evidence, this should be recorded in your notebook.
It is essential that you record each witness’ home address, telephone numbers (including their home number) on the statement, so that you or the Procurator Fiscal can contact the witnesses. It is also essential that you record the witness’ date of birth. This is a legal requirement if the witness is under 18. However it is also necessary in other circumstances, in order to properly identify the witness and, if required, perform a check on the Police National Computer (PNC) for any previous convictions.
The statement given by a witness is their evidence alone. In general a witness is not entitled as a matter of law to have a legal advisor present when his/her statement is taken.
Where a statement is taken using Section 20 (2)(j) powers then the witness has the right to nominate someone to be with them and this may include a solicitor, a union representative or a friend.
Where a voluntary statement is being taken from a witness, then you should apply the same policy as applied to Section 20 statements.
If a witness turns into a suspect, the situation changes. You should caution them and explain that they have the right to consult a solicitor before further questioning. Although there is no statutory right for a suspect to have a solicitor present during an interview under caution, it is HSE policy that this should be permitted. If someone you are interviewing on a voluntary basis becomes a suspect during questioning you must caution the suspect and advise of the right to consult a solicitor.
Special considerations apply where you are taking statements from certain vulnerable people eg juveniles.
If a witness wishes the solicitor or other representative of the employer/dutyholder to be present (where the employer or dutyholder are a suspect in your investigation) during an interview under Section 20, you should explain to the witness that the interests of their employer may not be the same as theirs, and advise them that they can speak to their trade union or take their own legal advice. However, if the witness insists, you are not entitled to resist such a choice, although it may not be appropriate, depending on the circumstances of the investigation, to continue with the interview.
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In 2003 the Scottish Executive produced a comprehensive guidance on interviewing children Guidance on Interviewing Child Witnesses in Scotland. Although the guidance is aimed primarily at the police (and as such deals mainly with issues surrounding suspected abuse) it is stated to be "relevant for all professionals who undertake investigative interviews with child witnesses"(p.5). The guidance should therefore be followed, and referred to by inspectors in appropriate cases. The aim of the guidance is to improve the quality of investigative interviewing, and may be useful, not only in interviewing children but also when seeking information from vulnerable witnesses. So far as young people are concerned the guidance deals with 'very young children' (up to the age of 5 years), 'young children' (up to 11 years of age) and 'older children' (over 11 years of age). Child witnesses are generally taken to be those under the age of 16.
The guidance recommends that all interviews with children are planned, and that the purpose of the interview is clarified fully before it takes place. Examples of planning points are: age and gender, language, mental/physical health requirements, known sources of stress. Although the guidance is framed mainly for those dealing with criminal matters (suspected abuse for example) the methodology suggested should be referred to by inspectors in appropriate cases.
It is recommended that only professionals who are "trained and competent" should carry out interviews with children (generally certain police officers and social workers). In some cases this may mean that an inspector might need to involve other professionals; for example a child's doctor if a child has witnessed a traumatic incident to decide how best to conduct an interview. Two individuals should carry out interviews, one should lead and the other should monitor and accurately record the questions and answers and also the demeanour of the child. The guidance notes that in "most circumstances, it is best for only the two interviewers to be present in the room with the child." In certain cases, however, a child may wish for an adult supporter to be present. If a supporter is present then it is important they understand their role: they should not participate in the interview itself, and it would generally be best for them to withdraw to an adjacent room once the child is settled. In general, for health and safety offences, the presence of a supporter isn't likely to be objectionable per se. However, it should be established that any supporter is not a witness or potential witness, nor someone with a personal involvement in the case. In suitable cases this would rule out a parent who was also an employee or director of a relevant company.
In addition to the guidance, the Vulnerable Witnesses ( Scotland) Act 2004 provides for special measures to be used through which the evidence of children and certain vulnerable adults can be given in court. For example, in criminal cases all children under 16 are automatically entitled to give evidence by live television link and have the use of a supporter. Children under the age of 12 will, in some cases, be able to give evidence without attending the court building (for cases involving sexual assault or violence).
Where a witness has a mental disorder then the then Scottish Office guidance of 1998 (Interviewing people who are mentally disordered: "Appropriate Adult" schemes) should be taken account of. Although this is aimed mainly at the police, inspectors should ensure that when there is any suspicion an interviewee is mentally disordered an appropriate adult is called. There are a variety of appropriate adult schemes accessed by the police throughout Scotland, and the majority of these are Social Work led.
The rationale for the scheme is to put mentally disordered people on the same footing as others when they are being interviewed: to ensure that they understand what is happening, and to ensure that their answers are fully understood.
If you need to take a statement from a witness who has difficulty in understanding English, you should arrange for an interpreter to attend. 8 The interpreter will normally be a member of the National Register of Public Service Interpreters (NRPSI). The statement should be written in the witness’s own language and signed by the witness.9 If they are unable to read it, the statement should be read back to the witness by the translator. A translation should be obtained, which the interpreter will usually prepare. S/he should complete a witness statement producing the English translation, certifying that it is a true and accurate translation of the statement given by the witness and stating that s/he is a member of the NRPSI (or other relevant organisation). The translation should be obtained as soon as possible, so as not to delay the investigation.
In such cases you should also arrange for an interpreter to be present, unless the witness agrees in writing to be interviewed without an interpreter present. The interpreter should read the written record and certify its accuracy.
Where a witness cannot read the written record, you should read it out and ask the witness to sign it as correct. You should then take a note that this has occurred.
You should not interview a person if you believe that they are unfit to be interviewed. This can be where conducting the interview could significantly harm the person’s physical or mental state or anything that they say about their involvement or suspected involvement in the offence might be considered unreliable in subsequent court proceedings because of their physical or mental state. For example, a person may be unfit to be interviewed if they are under the influence of alcohol or drugs.
If you need to take a statement from a witness who is unlikely to live for very much longer, you should contact the Procurator Fiscal who will consider whether it is appropriate to arrange for a "Dying Deposition" to be taken in front of a Sheriff, at the witness’ bedside. However, given the provisions of s.259 of the Criminal Procedure ( Scotland) Act 1995 (see para 15) the need for such depositions is now more limited.
There is no "property" in a witness. This means that the fact that you have taken a statement from a witness and the witness is likely to be called to give evidence for the prosecution does not prevent the defence from taking a statement or precognition from that witness. The Procurator Fiscal is required to provide the defence with a list of witnesses together with the address at which they can be contacted for the purposes of precognition to enable them to be interviewed by the defence.
It is an offence at common law to interfere with a witness by unlawful means, such as violence, bribery, threats or improper pressure. Such conduct amounts to an offence of perverting (or attempting to pervert) the course of justice. It does not matter that no criminal proceedings have yet been commenced, provided investigations which could or might bring about proceedings are in progress. Interfering with productions is also an offence. Suspicion of any such actions should be discussed with your line manager and usually reported to the police or Procurator Fiscal.