Purpose of seeking publicity
1. Where a prosecution is brought, it may be desirable to seek publicity for the proceedings you are initiating. In alerting the media to prosecutions, you will be discharging HSE’s obligation to take all reasonable steps to inform the public of its actions and, where relevant, to warn the public of any dangers presented by the alleged offences.1
2. HSE may also wish to publish certain information before any criminal proceedings are commenced, for example, safety alerts in respect of particular areas of concern or preliminary reports into the causes of major health and safety incidents . The level of detail should be proportionate to the aim to be achieved by publication, and in particular take into account the extent of the risk to health or safety involved.2
3. HSE inspectors, press officers and other members of staff must be aware that anything said or written about the investigation has the potential to prejudice the defendant’s position in the event that criminal proceedings are instituted. Prejudicial publicity may give rise to a breach of the right to a fair trial under Article 6 of the European Convention on Human Rights ("ECHR"). It may also constitute grounds for a stay of proceedings as an abuse of process.
4. The contents of safety alerts or interim reports should be carefully assessed, if necessary in consultation with Legal Adviser’s Office. The assessment will consider:
- the need to bring new information or advice on controlling risks to the attention of the public or industry as soon as possible;
- the requirements of the ongoing investigation and any future criminal proceedings; and
- the other statutory and common law duties on HSE outlined elsewhere in this section.
5. However, it is anticipated that, in all but the most exceptional cases, it will be possible to word safety alerts and technical reports in such a way as to achieve the aims of publication without jeopardising future proceedings or contravening the other restrictions on disclosure.
6. Before making any disclosure, inspectors should always consult fully with other any other authorities involved, such as the police and CPS in investigations being conducted under the Work-Related Deaths Protocol.
7. HSE’s Press Office is the link between HSE divisions and the media. All press relations work should be channelled through press officers to ensure consistency.
8. As of April 2015, all press activity, including trade and technical media liaison is conducted by central press office.
9. When dealing with HSE Press Office, inspectors can expect arrange of services. These are:
- advice on media handling to maintain HSE's reputation;
- media monitoring;
- ensuring an informed response to media enquiries and correcting misreporting;
- preparing and issuing press notices; and
- arranging press launches and interviews.
10. If inspectors receive direct approaches from the media, they should keep Press Office informed.
11. In practice, you will work closely with Press Office who can provide insight and expertise when handling press enquiries and in publicising HSE prosecutions. You may be contacted following an inquiry about an incident, for example, where the media want to know whether HSE is investigating. A HSE press officer will contact the relevant HSE inspector to:
- obtain details;
- agree a response; and
- communicate it on behalf of HSE.
12. Press office staff are also available to help publicise prosecutions. They will sometimes prepare a draft note for release headed ‘HSE Operational Note’ which will be checked by you for accuracy. An Operational Note is a diary note to journalists, and is not intended for use as a news item. After clearing it through Press Office and Legal Adviser’s Office as required, it will be disseminated to the press either in written form or, if urgent, by telephone. Press Office will also assist in preparing a statement to be made after a prosecution. Where appropriate, Press Office will prepare a draft press release which, if the prosecution is successful, will be issued immediately afterwards, announcing the result and the lessons to be learned from the case.
13. Current press office guidance states that the operational note should satisfy the following checklist:
- The phrase "operational note" is to be included at the top left.
- References to an "offence" or "incident" should be preceded by the qualifying word "alleged".
- Pejorative or accusatorial phrases (e.g. "did negligently remove" or "dangerous practice") should be avoided.
- Phrases which might state or imply the prosecution's confidence in the outcome of the case should be avoided.
- Comment on the case in general should be avoided and, where there is a possibility of facts being in dispute, it should be made clear that HSE alleges such facts.
14. The "notes for editors" should include:
- descriptions of the relevant sections of the Act and/or Regulations under which the prosecution is being brought;
- a reminder about the requirements of the Contempt of Court Act 1981 ("CCA"); and
- any other reporting restrictions (such as those imposed under the Magistrates’ Courts Act 1980).
15. An "Operational Note" is understood by editors to contain information for operational use and not for publication. The publisher is responsible for ensuring the accuracy of any subsequent report.
16. As the operational note will be drafted on the basis of factual information which you have provided, it is extremely important that you ensure that, in dealing with facts, you avoid possible ambiguities.
17. Any reference to a defendant in legal proceedings should describe that person in a way that avoids possible confusion with any other person of the same or similar name. Providing details of the road and town where the defendant lives, in addition to his or her name, will usually be sufficient.
18. Where HSE publishes any report or other documents in the exercise of its powers under HSWA, including a special report made under section 14(2)(a) or a report made under section 14(2)(b) HSWA, these must also avoid the use of pejorative/accusatorial phrases or reference to facts which are in dispute.