Selection of charges and mode of trial

1. As part of the approval process, the Approval Officer will consider the suggested charges. The Approval Officer will consider whether those charges:

• reflect the seriousness of the offending;
• give the court adequate sentencing powers; and
• enable the case to be presented in a clear and simple way

2. The Approval Officer will decide which charges are necessary. You should never attempt to go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. Where, following approval of the charges, a defendant indicates that s/he will plead guilty to some of them if others are withdrawn, you should refer to the Code for Crown Prosecutors and the guidance in the section Discontinuing a prosecution.

3. In reaching this decision, the Approval Officer will also have regard to the sentencing powers available to each court and the magistrates’ powers to commit cases to the Crown Court for sentencing. You should refer to the section on ‘Sentencing and Costs’ for further information.

4. When considering the seriousness of the offending and the most appropriate court to hear the case, Approval Officers will take into account the aggravating, mitigating and other relevant factors set out in the prosecution report.

Alternative informations

5. When an act or omission appears to constitute an offence under a provision of an Act, Order or Regulations, and it is not clear under which provision to proceed, the Approval Officer may decide to lay alternative informations¹. However, you should note that, in these circumstances, not more than one penalty can be imposed in respect of the same act or omission². In addition, the Code for Crown Prosecutors states that it is the duty of prosecutors to make sure that the right person is prosecuted for the right offence ³.

6. The court (and the defence) should be informed at the outset which charges are alternatives and that, if a conviction is obtained on one information, the others will be withdrawn. See also the section on Sample informations for guidance on numbering the informations.

7. Where there is no evidence that a dutyholder has complied with a requirement, it may be appropriate to consider whether there is also a legal requirement to make a record of compliance. In these cases, the failure to make an entry can be used as evidence of the failure to comply with the first provision⁴, but the Approval Officer will also wish to consider alternative charges. For example, where there is a duty to test certain equipment and to record that these tests have been carried out, the failure to make this record may be either admissible evidence that the tests were not in fact carried out or a separate offence in itself.

Additional charges

8. Where there is sufficient evidence, a second information alleging an additional charge that is not an alternative may be appropriate, in order to bring the full extent of the breach before the court. For example, an offence alleging the use of a drill without a guard and an offence for not training the operator should be contained in separate informations, even though they arise from the same incident or investigation.

9. Where the issue is whether the defendant has done all that was reasonably practicable⁵, it is not necessary to specify in the information what might be ‘reasonably practicable’. The onus is upon the defence to prove that they have satisfied the requirement. However, it is advisable in cases involving reasonable practicability to be in a position to adduce prosecution evidence of what it would have been reasonably practicable for the defendant to do; this may be required at court in order to rebut defence arguments. See The prosecution report and Proving the offence for further guidance on ‘advance rebuttal’.

Overlapping provisions

10. There are many situations covered by both the requirements of specific regulations and by the general provisions of HSWA, sections 2 to 6.⁶ The following factors should be taken into account in deciding which charge to select:

• whether the offence is appropriate (e.g. a single incident as opposed to a more general failure to provide a safe system of work);
• the strength of admissible evidence;
• the nature of the offence (for example, the evidence may be sufficient to prove contravention of an absolute provision but not one qualified by reasonable practicability);

• the maximum penalty: Most offences available under health and safety legislation provide for matters to be dealt with in either the Magistrates’ or the Crown Court. Some offences committed on or after 16 January 2009 attract higher sentences than previously. For example, for offences relating to breaches of health and safety regulations Magistrates’ Courts may impose a fine of up to £20,000. In addition, imprisonment is a sentencing option in respect of many offences, both in the Magistrates’ Court and the Crown Court. See the Model examples for a list of available sanctions that can be imposed by both courts,

Co-ordination with other enforcement agencies

11. There will be occasions when the circumstances giving rise to a prosecution under health and safety legislation will also give rise to an offence prosecuted by another agency. In these cases, it is important that there is proper consideration of whether the offences should be prosecuted at the same time, to avoid an ‘abuse’ argument based on double jeopardy. The principles contained in the Prosecutors' Convention  will assist in ensuring effective co-ordination and handling of these related cases.

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Footnotes

1. For example, where prosecution of an “employer” under s.2(1) HSWA 1974 seems appropriate, but it is arguable whether the persons at risk were employed, an information under s.2(1), with further informations under s.3(1) or s.4(2) as alternatives, may be laid.
2. Interpretation Act 1978, s.18. When addressing the court on alternative informations, it may be helpful to refer to this section, which does not prohibit the prosecution proceeding under either provision in cases where the same facts constitute a breach of more than one provision, but prohibits punishment under more than one of the alternative provisions.
3. Section 6 of the Code for Crown Prosecutors – ‘Selection of charges’.
4. HSWA 1974, s.41(2).
5. Edwards v National Coal Board [1949] 704, CA: ‘Reasonably practicable’ is a narrower term that ‘physically possible’ and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble, involved in the measures necessary to avert the risk is placed in the other; and that if it is shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon whom the duty is laid discharges the burden of proving that compliance was not reasonably practicable. This computation falls to be made at a point of time anterior to the happening of the incident complained of.
6. In R (on the application of Junttan Oy) v Bristol Magistrates’ Court [2003] UKHL 55, the House of Lords confirmed that HSE is entitled, as a matter of domestic and EC law, to prosecute a company under either section 6 HSWA or the Supply of Machinery (Safety) Regulations 1992, and that both functioned in parallel in as much as they operated at different levels of seriousness. You should therefore apply the principles set out in paragraph 10 above in selecting the most appropriate charge. See OC 200/29.