1. This section outlines the main rules and procedures that affect magistrates' court hearings of summary and either way offences.
Types of offences
2. Two types of offences appear in health & safety prosecutions: These are:
- summary offences, which are held in a magistrates' court; and
- "either way" offences, which can be heard in either the magistrates' court or the Crown Court.
3. There is a third type of offence known as 'indictable only', which is only triable in the Crown Court. No health and safety offences come within this category, although there are occasions where they may be linked to indictable only offences, such as manslaughter, and so will be heard in the Crown Court.
"Summary only" offences
4. Cases involving "summary only" offences can only be heard in the magistrates' court. Time limits are imposed and these need to be adhered to. The general rule for time bars on summary only offences is that prosecutions will be time barred if Informations are laid more than six months after the date of the offence 1. The Magistrates Court Act (MCA) allows for different time limits to apply where they are explicitly provided for in statutes. A table detailing maximum penalties can be found in the Sentencing and Costs section and shows the ‘Summary Only’ offences.
5. S34(3) HSWA states that where cases fall under s34(4) 2 the time limit will be six months after the date when HSE has to its knowledge sufficient evidence to justify a prosecution. In cases involving a fatality, this must be done within 3 months of the Coroners' Inquest or the making of a report in the case of a Public Inquiry 3. Certain health and safety regulations made to give effect to European obligations, for example the Supply of Machinery (Safety) Regulations 1992 4 has extended the six month period specified in section 34(3). When considering other health and safety regulations you should always check to see whether the time limit specified in section 34(3) has been extended.
6. Should you require a s34 certificate for summary proceedings you should contact Legal Adviser’s Office who will draft the certificate for authorisation by the Executive. You should note that significant delay without a good explanation or just cause may result in the defendant arguing delay as an abuse of process or even applying to judicially review HSE's decision to prosecute. HSE requires careful scrutiny of the chronology of the investigation before issuing a certificate.
7. Where a certificate is required and produced under s34 HSWA, the certificate signed by or on behalf of the Executive shall be conclusive evidence of its knowledge on a certain date.
8. The summons will give the date on which the defendant must first appear in court, and on that date the defendant may be asked to enter a plea. If the defendant pleads guilty, the court may proceed immediately to sentence. If the defendant pleads not guilty, then the court will adjourn to a later date for the next hearing.
Either way offences
9. In cases involving "either way" offences, a decision must be made as to whether the case should be heard in the magistrates' court or the Crown Court. This is done at the 'mode of trial' hearing.
10. If the defendant pleads guilty, the magistrates' may hear the case straight away if they consider that they have sufficient powers to be able to properly sentence the matter. If they don’t, they can commit the case to the Crown Court for sentence.
11. If the defendant pleads not guilty in a case that the magistrates consider is suitable for summary trial, then the defendant will be asked if they consent to summary trial, or whether they elect for a trial at the Crown Court. If they consent to summary trial then the case will usually be adjourned to a later date for trial. However, if they elect trial at the Crown Court then the case will be sent forthwith to the Crown Court for a plea and case management hearing. You should check the practice of the court in every case.
12. Witnesses need only attend at the first hearing in the magistrates' court if the practice of the court is to hear a defended case immediately, and either you have not served statements under s9 CJA 1967 or the defendants have objected to the statements being put in evidence. The procedures for mode of trial hearings are described in more detail below.
- S127(1) Magistrates Courts Act 1980. Back to the reference of footnote 1
- offences under any of the relevant statutory provisions which a person commits by virtue of any provision or requirement to which s/he is subject to as the designer, manufacturer, importer or supplier of any thing. Backto the reference of footnote 2
- Section 34 (1) HSWA 1974. Back to the reference of footnote 3
- S.I 1992/3073 as amended by S.I 1994/2063. Summary proceedings to be commenced within 12 months of the date on which you had sufficient knowledge to justify a prosecution. These regulations were made by the Secretary of State, in exercise of the powers conferred on him by section 2(2) of the European Communities Act 1972 and are intended to implement certain EC directives. Regulation 28 of, and schedule 6. paragraph 1(b)(vii)(bb) to these Regulations amends section 34(3) HSWA, by substituting for `six months' a period of `twelve months'. The effect of section 2(4) of the European Communities Act 1972 is to provide that (subject to certain restrictions found in Schedule 2 of the 1972 Act, which are not material here) regulations made under section 2(2) may repeal or amend Acts of Parliament, which is why the Supply of Machinery (Safety) Regulations 1992 were able to amend section 34(3) HSWA. Back to reference of footnote 4