Evidence which may assist your investigation
Types of evidence
Depending on the nature of your investigation, you may need to obtain documentary and/or real evidence. Common examples are:
- parts of machinery;
- CCTV recordings;
- HSE letters or enforcement notices which constitute previous advice;
- HSE or company records of previous incidents or relevant near misses;
- a number of different types of documents, such as company records.
Where you need to show the extent of the undertaking, contract documents should be obtained from all those concerned as these should assist in determining who has duties under health and safety legislation. This is particularly important when a number of contractors, or subsidiary companies in a group, are engaged or involved with the same site or place of work.
Where you are investigating an offence by a registered company, you will need to obtain details of the company’s registered office and directors. Company information can be obtained from Companies House, see the Companies House website.
If directors are being considered for prosecution under s37 of HSWA, minutes of board meetings, or other committees/groups relevant directors have been involved with are likely to be relevant.
Liaison with other authorities
Inspectors should liaise with other enforcing authorities, such as the police, if they have an involvement in the investigation (see Work Related Deaths Protocol Scotland [228KB]). All parties can then determine how best to perform their respective roles within the investigation, as well as how evidence is to be identified and preserved.
The police have a wider range of resources available to them, such as forensic specialists and vehicle inspectors. Consequently they may be able to assist HSE in the preservation and collection of evidence in a large investigation.
It is vital to establish early a clearly defined working relationship with other authorities, to ensure the investigation is not undermined. This is particularly important where there are productions which another authority may want to take possession of, but which HSE requires in order to fulfil its statutory role.
Accessing communications data
During the course of an investigation you may wish to acquire, or may require, disclosure of communications data from postal or telecommunications service providers. The Regulation of Investigatory Powers (Communications Data) Order 2003 made under RIPA 1 enables HSE to obtain certain information from communications providers. HSWA Section 20 powers should not be used to obtain such data.
The Order is only relevant to communications data held by a communications service provider e.g. BT, Vodafone, Royal Mail etc., and not to records of communications held by an employer / other person, or to personal contact details held by an employer / other person. If such data is relevant to your investigation, it should be obtained using your HSWA Section 20 powers.
The procedure to be followed for seeking authorisation and requesting communications data is in interim guidance on the FOD legal bulletin board.
An entry, the failure to make an entry or the failure to keep a specific register may be relevant to your investigation, for example, the failure to have particulars of a young person entered in the general register. If the required register is produced for your inspection but is retained by the owner (for example an accident book), then you should sign and date under the last entry made and obtain a copy of the relevant section.
Photographs and drawings
Photographs and drawings are useful evidence to illustrate conditions and circumstances and should be used whenever possible. The photographer or whoever prepares the drawing should provide a statement setting out the circumstances in which the photographs were taken or drawing was made, on whose instructions; the statement should be dated and signed. Inspectors and photographers working for HSE should be methodical in taking and recording photographs. Guidance on evidential use of photographs should be followed in Scotland. The witness who identifies the photographs in court must be able to say they have not been altered and should state so in their statement.
Original documents or copies?
Generally when a party seeks to rely on the contents of a paper document in court, the original document should be produced. This does not apply to tape recordings and film. Where possible, therefore you should try to ensure the originals of paper documents are available for the court.
Section 20 (2)(k) HSWA gives you powers to inspect and take copies of documents only. However if the owner of the document has refused to produce the original and a copy will not suffice for court proceedings, you should seek advice from the Procurator Fiscal: a refusal to produce an original document may constitute an offence. However, there are some circumstances when it is legitimate to withhold documents, for example where these are legally privileged.
- The Regulation of Investigatory Powers (Communications Data) Order 2003 (SI 2003 No.3172) came into force on 5th January 2004 and was made under the Regulation of Investigatory Powers Act (RIPA) 2000.