It is vital that the complaint relates the facts which are sufficient to constitute an offence, and that the complaint gives the accused fair notice of the case which he has to meet. It is particularly important that the date or period of the offences and the place where they occurred (the locus) are clearly stated, as well, of course, as the correct identity of the accused. You should bear in mind in cases involving more than one accused, that it can be helpful to the Fiscal and the court to include the charges against all the accused on the same complaint.
The "particulars" of the proposed charge:
- should identify the accused by giving full details of name and address;
- should state the date and place of the offence to ensure the jurisdiction of the court
- should state the special capacity in which the accused is charged eg "employer"
- should describe the offence in ordinary language avoiding so far as possible the use of technical terms, although it need not necessarily state all elements of the offence; and
- give sufficient detail of the alleged offence to amount to "reasonable information" of the nature of the allegation 1; and
- should refer to the statutory provisions which create the offence. Use should be made of an existing ISCJS Charge Code where one exists.
Text removed under the Freedom of Information Act 2000
If an offence is created by or under an Act or subordinate legislation, the complaint must refer to the appropriate section of the Act, order or regulation. Significant departure from the wording of the statutory provision should be avoided, (although you should also try to ensure that the allegation is put in plain English). For example, if the offence alleges a breach of section 2(1) and incorporates a sub-paragraph of section 2(2) 2, it may be appropriate to add "... and in particular that " followed by details of the relevant sub-paragraph.
You do not necessarily have to state all the elements of the offence in the particulars. For example, it is not necessary to specify or negative an exception, exemption, proviso, excuse or qualification. In such cases the onus of proof of any exception, etc, relied on by the accused is on the defence.
The date, or range of dates, when the offence is alleged to have occurred should be stated. If the exact date is not known you should state that the offence occurred on a day unknown between certain dates.
Where a relevant statutory provision requires something to be done within a fixed time, the offence continues until it is done 3. You may allege that the offence occurred at any time after the fixed time period expired, preferably on the earliest date on which the offence was committed. For example, where an Enforcement Notice has not been complied with, the offence will be committed on the day after the date given for compliance.
When an act or omission appears to constitute an offence under either one or another provision of an Act, Order or Regulations, and it is not clear which provision it would be best to proceed, alternative charges may be proposed, although not more than one penalty can be imposed in respect of the same act or omission.
Alternative charges may be appropriate where the application of the law is not clear from the evidence. An example would be where agency workers are involved and their employment status is in doubt. Alternative Section 2 or Section 3 HASWA charges may then be laid.
Alternatives should not be used simply because a decision cannot be made on which charge to use eg Section 2 or Regulations.
Failure to perform a duty "so far as is reasonably practicable" will be more difficult to prove than an absolute duty. Where there is a choice, and the proposed defendant may have taken all reasonably practicable steps, a charge alleging breach of a specific (or absolute) duty should normally be preferred, although each case must be considered on its circumstances.
Where the issue is whether the defendant has done all that was reasonably practicable 4, it is not necessary to include in the Complaint what might be "reasonably practicable": The onus is upon the defence to prove that they have satisfied the requirement. The Compliant need only allege the breach. 5
It is essential that evidence in relation to what is "reasonably practicable" is available from the investigation, as in due course it may be necessary to introduce evidence in rebuttal of the defence case.
There are many situations covered by both the requirements of specific regulations (eg PUWER) and by the general provisions of HSWA, sections 2 to 6. The following factors should be taken into account in deciding which charge to select:
- whether the offence is appropriate (eg is it a single incident or a general lack of a system?);
- the standard of evidence;
- the difficulty in proving the case (will an absolute provision be easier to prove than a reasonably practicable one?);
- the maximum penalty that can be imposed.
2. Note that the matters referred to in s.2(2) are only examples of the matters to which the s.2(1) duty refers. They do not constitute separate offences and, as such, there can be no question of duplicity if several of the 'matters' in s.2(2) are relied upon.
4. Edwards v National Coal Board 1 ALL ER 743 ‘Reasonably practicable’ as traditionally interpreted, 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 be 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. At 747 per Asquith LJ.