1. A witness statement is a document recording the evidence of a person, which is signed by that person to confirm that the contents of the statement are true.
2. A statement should record what the witness saw, heard or felt. However, it is also important to record anything that may open up a new line of enquiry or help in corroborating other information1.
3. A s9 statement is taken from a person who has voluntarily given the statement. It does not rely on s20 (2) HSWA powers. S9 statements are recorded on form LP70.
4. Under s9 CJA the contents of a written statement will be admissible, without the witness attending court to give oral evidence, if the following conditions are satisfied:
5. You also need to be aware of the following other provisions of section 9 CJA:
6. 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.
7. Information obtained using this power should be recorded in the form of a statement using form LP7 and, if required, the continuation form LP8. The witness must sign the declaration of truth. You should only record the information provided to you by the witness, i.e. the answers given. It is essential that you make it clear to the witness that you are using your compulsory powers before asking any questions.
8. Answers given by a person compelled to answer your questions are not admissible against that person or their spouse or civil partner (section 20(7) HSWA, as amended).
9. When you take a statement from a witness, you should, wherever possible, take a statement under section 9 CJA as there are limitations on how a compelled (s20) statement can be used in legal proceedings.
10. The witness should be asked if s/he agrees to give you a voluntary statement. If they do, their evidence should be recorded on an LP70. The statement may be handwritten or typed. You should ensure that the witness has the opportunity to check the contents of the statement and make any corrections before s/he signs it. You should also ensure that the witness understands the perjury declaration (see above) contained in a s9 statement before signing.
11. In most cases, witnesses will be willing to cooperate with your investigation. If a witness is unsure as to whether they wish to provide a voluntary statement, you will need to carefully explain your reasons for interviewing him/her and that s/he is not being treated as a suspect. You may explain that, if s/he will not volunteer relevant information or feels that circumstances prevent him/her from doing so, you can use your powers to require that information.
12. Where you have grounds to suspect that a person may have committed an offence, you should not treat him as a witness but should offer him/her an interview under caution instead. If a witness becomes a potential suspect in the course of taking a witness statement from him/her, you must stop the interview and offer to conduct an interview under caution.
13. Only if the witness declines to provide you with a statement voluntarily should you consider exercising your powers under section 20(2)(j) to take a compelled statement.
14. A s9 CJA statement is preferable because:
15. Whenever you take a statement (whether compelled or not) you should record whether you have exercised your section 20(2)(j) power in your notebook, in case this is raised at a later date.
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21. Where a witness refuses to give a voluntary (s9 CJA) statement and you compel them to give a statement under s20 of HSWA you should consider how these compelled statements can be used if you need to rely on the evidence they contain.
22. Form LP7 (s20) does not contain the perjury declaration and does not comply with the provisions of s9 CJA. A section 20 statement cannot be relied upon in evidence without the witness attending court to give the evidence recorded on the LP7 except in very limited circumstances (see Exceptions to the hearsay rule).
23. If the case is tried in the magistrates’ court (i.e. where the charge is a summary only offence or where, after the mode of trial procedure, the case is to be tried in the magistrates’ court), compelled statements can be served on the defence:
24. Even if the witness’s evidence is not in dispute, the witness will still have to be called to give live evidence unless the content of the witness’s evidence can be agreed by a formal admission.
25. In the event that the magistrates' court declines jurisdiction, the case will be allocated to the Crown Court and subsequently sent forthwith for trial. The prosecution must then serve copies of the documents containing the evidence on which the charges are based, no later than 70 days after the date on which the case was sent for trial. Whilst a section 20 statement can be included within those documents, it should be borne in mind that the witness will have to be called to give evidence unless the content of the statement can be agreed by a formal admission.
26. There are a number of ways a compelled statement can be useful. The compelled statement:
27. 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.
28. These are people in positions of authority within the corporate body who have both the power and responsibility to decide corporate policy and strategy3. Whether such a person is a suspect in your investigation will depend on the evidence that you have collected.
29. You are under a duty to follow all reasonable lines of inquiry. This may include investigating the involvement of individuals in any suspected breach4. However, the Enforcement Policy Statement recognises that it may be necessary to target your investigation (e.g. towards the person best placed to control the risk).
30. 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.
31. 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).
32. 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.
33. 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.
34. You should see also OC130/8 for information on the prosecution of individuals.
35. 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 Rights5. 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 or civil partner).
36. 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.
37. 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.
38. 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 personality6, 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 director7.
39. Under s 20 HSWA, you have the power to take a copy of documents required to be kept under any of the relevant statutory provisions or that are necessary for you to see for the purposes of your investigation. You should be aware that the defence may argue that, if such documents are relied upon in a prosecution, this infringes their right against self-incrimination. The basis of this argument is that, since the defendant was compelled to provide the copies, they have been compelled to incriminate themselves8.
40. The Court of Appeal has stated9 that there is a distinction to be drawn between the compulsory production of documents or other material which had an existence independent of the will of the suspect or accused person and statements that they have had to make under compulsion.
41. In other words, it is important to determine whether the material in question is evidence that a defendant has been compelled to create (e.g. a compelled statement) or evidence that was already in existence, where the effect of the compulsory power is to bring such evidence to the attention of the court (e.g. a company's documents).
42. As the law currently stands, material that a defendant has been compelled to create may be protected from subsequent prosecution use by the right not to incriminate oneself. Material that was already in existence, but which the defendant was required to produce, does not have this protection and may be used as part of the prosecution case.
43. A victim personal statement (VPS) is a statement made by the victim of a criminal offence relating to the effect of the offence on that person. The purpose of such a statement is:
45. A “victim”, in relation to HSE’s work, is an individual, injured as a result of another person (including a corporate body) committing an offence under the relevant statutory provisions or, where there has been a fatality, the bereaved relatives or partners (including same sex partners). OC130/12 gives further advice on how “victim” is to be defined in practice for the purposes of the VPS scheme. See also OM 2008/07 on contact with the families of those killed at work.
46. Where an incident has been selected for investigation, any individual who has been injured as a result of a possible health and safety offence will normally be interviewed (see Investigation Operational Procedure). If a witness statement is to be taken, the victim should be given the HSE VPS leaflet. The opportunity to give a VPS is available during the investigation and prosecution stages and the victim can provide a VPS any time until the case is heard in court. The procedures contained in OC130/12 should be followed. A VPS is a voluntary statement (see below).
47. When considering the public interest test in deciding whether to bring a prosecution, para 4.12 c) of the Code for Crown Prosecutors says that, "In deciding whether a prosecution is required in the public interest, prosecutors should take into account the views expressed by the victim about the impact that the offence has had". A VPS, if there is one, may provide information that assists in meeting the requirements of para 4.12 c). However, whether or not the victim chooses to participate in the VPS scheme, the approval offices should still apply the Code for Crown Prosecutors, as set down in OM 2003/106, and take account of any significant views expressed by the victim.
48. Victims have the option of whether or not to make a victim personal statement and no inference is to be made if they choose not to do so. A VPS should be taken as a voluntary (section 9 CJA) statement on form LP70. It should be taken on a separate form to any other statement the victim makes. As with other, evidential statements, guidance on taking statements from particular categories of witnesses (see below) should be followed when taking a VPS.
49. The VPS is disclosable and should be provided to the defence before the hearing. It is unlikely that the VPS will contain any sensitive material for the purposes of the CPIA; if it does, it will need to be edited by the prosecutor before disclosure.
50. The VPS will be put before the court after conviction in the sentencing bundle. Victims should not comment on the appropriate level of sentence; courts will not take account of any such comments. Victims should be advised of this. The VPS may provide information relevant to a possible compensation order but the VPS scheme does not affect the procedures by which the court will consider and, if appropriate, make such an order. The Criminal Practice Directions 2013 include directions (at F) to judges and magistrates on how to use the VPS10.
51. 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).
52. 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.
53. Witness statements should normally be taken as soon as possible to ensure that:
54. 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.
55. In some cases it may be more appropriate to obtain the home contact details of the potential witness and contact them there.
56. 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.
57. It is common practice within HSE to use the term witness "interview" when taking or proposing to take a witness statement. Elsewhere in the criminal justice system the term "interview" is used to refer to the questioning of a suspect. It is important therefore to clearly explain to a potential witness that they are not a suspect and you propose to take a statement from them.
58. 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's own words.
59. You may find it helpful to take notes before beginning to write the statement. Once the statement has been completed, you should read it over to the witness before it is signed. If there are any alterations on the statement, these should be initialled by the witness.
60. When questioning the witness, you should ask all relevant questions so as to satisfy your duty under the Criminal Procedure and Investigations Act 1996 to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect (see ‘Key requirements’ in the relevant section on disclosure of unused material in the Pre-trial Stage).
61. You will be concerned with obtaining the best evidence possible and therefore you will want to know from the witness whether they have discussed their evidence with anyone else (including the solicitor representing any suspect e.g. a company/employer or another person). If there is any information relevant to the weight to be attached to a witness's evidence, this should be recorded in your notebook.
62. It is essential that you record each witness’s home address, telephone numbers (including their home) and dates to avoid (if known) on the form attached to the statement, so that you can contact the witnesses at any time, if necessary. It is also essential that you record the witness’s date of birth on the back of the statement where indicated. 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 for any previous convictions (see the related section in Attendance of witnesses). You should also ask whether or not the witness will consent to the disclosure of their witness statement for the purposes of any subsequent civil proceedings that may be commenced. You should make a written record of their reply on the back of their statement. If a request for disclosure is received for any other purpose then you must seek consent for this and again make a written record of the reply.
63. It may be necessary as part of the investigation for a witness to identify a person as someone they have seen involved in committing an offence. Whilst this occurs relatively rarely in HSE investigations, it could be required in certain circumstances (for example, where evidence is needed that an individual was indeed the person seen to carry out work on a domestic gas appliance).
64. In such a case, identification evidence should only be obtained in accordance with PACE Code D. You should record the witness’s description of the suspect before any identification procedures are carried out11. This record would normally be made in the form of a witness statement. Identification procedures, such as video (or photograph) identification, must then only be carried out in accordance with Code D. In such circumstances, you should seek guidance from Legal Adviser’s Office via your legal liaison point.
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67. A witness is not entitled as a matter of law to have a legal adviser present when his/her statement is taken.
68. The situation changes if a witness turns into a suspect. You must terminate the statement-taking exercise immediately and issue the caution as required by the Police and Criminal Evidence Act 1984 (PACE). The procedures relating to interviewing a suspect are found in the Questioning of Suspects section.
Statements complying with section 9 CJA
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76. During an investigation into possible breaches of health and safety legislation by an employer, an employee witness providing a statement (whether under s9 CJA or s20 HSWA) may ask for the solicitor, or other representative, of the employer to be present when s/he is interviewed.
77. You should explain to the witness that the interests of the employer may not be the same as those of an employee. The witness may want, for example, to seek the advice of his/her trade union.
78. In 2011 the Solicitors Regulation Authority (SRA), the body that regulates solicitors in England and Wales, introduced outcomes focused regulation which focuses on the high-level principles and outcomes that should drive the provision of legal services rather than detailed and prescriptive rules. A new SRA handbook incorporates the SRA Code of Conduct 2011. However, in reality the guidance in respect of this area has changed little from that in the previous Code of Conduct 2007.
79.Under the SRA Code of Conduct 2011, a solicitor must generally not act for two or more clients where there is a conflict of interest or a significant risk of such a conflict between them12.
80. The SRA has issued guidance revised in 2008 (soon to be reviewed and updated in light of the new Code and Handbook) on whether it is appropriate for the employer’s solicitor to be present during HSE’s interview of an employee. Whilst this is only guidance, the SRA and the courts will take it into account and you are therefore entitled to refer to it.
81. Paragraph 2 of the SRA guidance deals with the situation where a solicitor claims to act for both the employer and the witness. It includes an example of the conflicts that may arise in such a situation: the solicitor will be under a professional duty to tell each party what s/he learns from the other, yet at the same time will be under a similar duty to keep confidential what s/he has learned13.
82. Where an employer’s solicitor does not claim to represent the witness, the guidance states that “it is difficult to justify the employer’s solicitor accompanying the employee to the interview”14 and that “it is generally inappropriate for the employer’s solicitor to attend such interviews as the employee’s nominee, or to seek to obtain the employee’s consent to being present at the interview”15.
83. The guidance recommends that, if an employer’s solicitor does attend an HSE interview, s/he should ask to be provided at the end of the interview with a copy of any witness statement taken. You have the discretion to refuse such a request where supplying a copy of the statement would be likely to interfere with, or prejudice, the ongoing investigation - see Supplying statements to witnesses for further guidance.
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89. The “Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers”, Code C of the codes of practice made under section 66 of PACE, gives guidance on the procedures to follow when you speak to certain categories of witness. Although the Code is primarily concerned with situations where people are taken into custody by the police, certain parts apply specifically where people are assisting you voluntarily.
90. The 'notes for guidance to the Code'16 say that, although certain sections of the code apply specifically to people in custody, those who are present voluntarily to assist with an investigation should be treated with no less consideration. You should therefore follow the guidance below both when speaking to witnesses and when questioning suspects at an interview under caution.
91. Any witness who appears to be under the age of 17, unless you have clear evidence to show that they are older, and any witness who you suspect, or are told, may be "mentally disordered or otherwise mentally vulnerable" should be spoken to in the presence of an appropriate adult 18.
92. An appropriate adult for a juvenile is a parent or guardian, a social worker or, failing this, another responsible adult not employed by HSE 19.
93. An appropriate adult for a mentally disordered or otherwise mentally vulnerable person is a relative, guardian or other person responsible for care, or someone who has experience of dealing with "mentally disordered or otherwise mentally vulnerable" people, and failing that, some other responsible adult who is not employed by HSE 20.
94. The appropriate adult should not be someone suspected of involvement in the offence in question, or a witness21. The role of the appropriate adult is to advise the juvenile and to observe whether or not the interview is being conducted properly and fairly, and to facilitate communication with the person being interviewed, and this should be explained 22.
95. Juveniles should not be interviewed at their place of education except in exceptional circumstances23.
96. Where it is considered that a child, or a vulnerable or intimidated witness, is not able to give evidence in the usual way with an appropriate adult present and their evidence is crucial (i.e. there is no other way of proving a case), then special measures may be required (for example, video recording of the interview). In such circumstances, legal advice should be sought beforehand.
97. If you need to take a statement from a witness who has difficulty in understanding English, you should arrange for an interpreter to attend 24. 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 25. 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.
98. If the case goes to trial and you propose to call a witness who requires an interpreter, you should notify the court as soon as possible, so that the court can arrange for a suitable interpreter to attend.
99. 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 26. The interpreter should read the written record and certify its accuracy 27.
100. 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 28.
101. You should not interview a person if you believe that they are unfit to be interviewed 29. 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.
102. There is no "property" in a witness. This means that the fact that you have taken a statement from a witness and are likely to call them to give evidence does not prevent the defence from taking a statement from the same witness. However, a person who seeks to speak to a witness who has already provided a statement for the other side may be exposed to the suggestion of tampering with evidence, particularly where the witness changes their evidence as a result.
103. Where the defence seek to interview a witness whom you intend to call, you may advise the witness that they have a choice as to whether they make a statement to the defence. Where the witness consents to make a statement to the defence, you should suggest to the defence that, subject to the consent of the witness, you should also be present when this takes place 30.
104. If a witness requests that you provide them with a copy of their witness statement, you should normally comply with their request. However, you are not obliged to supply a copy immediately; you have a discretion to refuse or delay providing a copy of the statement in circumstances where this would be likely to interfere with the course of justice 31 32. In certain circumstances, you might have concerns that providing the statement could prejudice the investigation 33.
105. You should also be careful not to provide statements to witnesses in circumstances which enable them to compare with one another what each has said. If there are grounds to believe that a witness will pass their statement to a suspect or their representative, you will need to consider whether this may interfere with the course of justice. If so, you may use your discretion to refuse to provide a copy of the statement at that time.
107. It is an offence at common law to interfere with a witness by unlawful means, such as violence, bribery, threats or improper pressure 34. 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 35. Interfering with exhibits is also an offence 36.
108. The Criminal Justice and Public Order Act 1994 (CJPOA) contains two further offences of intimidating a witness and taking revenge on a witness 37.
109. The first offence covers acts which intimidate and are intended to intimidate either a witness or a person assisting in the investigation of an offence, intending to cause the investigation or the course of justice to be obstructed, perverted or interfered with 38.
110. The second offence covers doing, or threatening to do, an act which harms and is intended to harm a person, knowing or believing that person to have been a witness or to have assisted in an investigation 39. The harm may be physical or financial, to that person, their family and friends, as well as their property.
111. Where you have taken a statement from a witness who will not give oral evidence at court because of fear, the court may give leave to allow the written statement to be admitted in evidence 40 (see Exceptions to the hearsay rule ).
112. The courts have been reluctant to allow a written statement to be admitted in these circumstances, as the witness will not be cross-examined. It also means that the jury will not be able to assess the credibility of the witness. You should therefore consider whether any of the special measures that the court can take to protect witnesses, for example use of screens or video links, will assist the witness to give evidence 41.
113. If you become aware of information suggesting that a witness has been interfered with or intimidated, you should report this information to the police.