Stage 4: Prepare for court

Not for Independent Legal Oversight / LO cases - for these see Stage 3.3

Stage 4.1: Solicitor Agent

Inspector / line manager

Decide if a solicitor agent should be engaged to take the prosecution forward. If Solicitor Agent appointed:

• In FOD record reasons for appointing Solicitor Agent on decision recording form and submit to FOD central point.
• Make early contact with Solicitor Agent to agree working arrangements in relation to Stages 4 and 5 of this procedure.

In FOD & HID

Confirm Litigation Officer actions for the prosecution process and record decision.

In Energy Division - Offshore:

See relevant guidance in Offshore Intervention Guide – prepare for court.

Now go to: Stage 4.2 Laying informations

Stage 4.2 Laying informations

Prosecutor / Litigation Officer

Before laying the information(s):

• Inform the defendant(s) of the decision to prosecute;
• ensure, if proceedings are being instituted under non-relevant statutory provisions, eg ELCI, FEPA or COPR, that the informations are signed by a person authorised to institute proceedings under that relevant statutory provision;
• establish the Magistrates' Court's normal practice for processing informations and summonses and whether, if there is more than one defendant there is any reason their cases cannot be heard at the same time; and,
• agree a date with the Court for the first hearing which will allow a reasonable period between service of the summons and the hearing; as a guideline 10 weeks is suggested from date of laying informations.

Note: If a summary only matter then informations should normally be laid within 6 months of the offence.

• Complete the agreed number of summons(es) and signed information(s) for the court (typically x3 and x2 respectively). Check whether one or more of the offences are recordable as this will dictate whether an Arrest Summons Number (ASN) will be required by the Court.

Then lay the information(s) together with the summons(es), normally at the Magistrates' Court for the area where the offence was committed.  

For preparation and serving of Initial Details, see Stages 4.3 and 4.5.

For preparation of and sending Bill of Costs, see Stage 4.4.

Performance standard

• Lay the information(s) within 10 working days of approval.
• In summary-only cases an information must normally be laid / delivered to the court within 6 months of the offence.

Now go to: Stage 4.3 Initial details and Friskies schedule.

Stage 4.3  Initial details and Friskies schedule

Prosecutor / Litigation Officer

Preparation

Work preparing and serving Initial Details and Friskies schedules is not recoverable under FFI as it is required for court proceedings alone, however the costs must always be recovered in the prosecution bill of costs.

Work to draft and prepare Initial Details and Friskies schedules should therefore be recorded against the relevant prosecution case where one has been created by a LO. Where work to prepare the Initial Details and Friskies Schedules has been carried out eg prior to approval, a prosecution case should be created by the LO at this time and all relevant time should be recorded accordingly.

Initial Details and Friskies Schedules of the prosecution case:

• should in most cases should take the form of copies of statements and other evidence upon which you intend to rely rather than a summary;
• must not contain personal witness details from the reverse of statement forms;
• must include all previous convictions of the defendant;
• should, if ready, be served on the court with the Certificate of Service and on the defendant with the Summons (see Stage 4.6).

Now go to: Stage 4.4 Prosecution Bill of Costs.

Stage 4.4 Prosecution Bill of Costs

Investigator / Prosecutor (assisted by the Litigation Officer (LO) and/or Visiting Officer (VO) / Regulatory Contact Officers (RCO)

Recovery of prosecution costs is the responsibility of, and should be managed by the Lead Investigator (who may also be the Prosecutor). However the LO and/or VO / RCO may carry out a significant amount of the work to prepare the Bill of Costs. 

Recording Investigation and Prosecution Time (Non-FFI Cases)

Time associated with managing, investigating  and prosecuting cases where FFI does not apply (investigations which commenced before 1st October 2012 or associated with breaches of non-relevant statutory provisions) should be recorded on COIN. Such time should be included in the Prosecution Bill of Costs in any subsequent prosecution. Appendix 1 (Investigation costs) and Appendix 2 (Prosecution costs) in the Appendix provide lists of what should be included in Bills of Costs. The Tables are not exhaustive and there might be additional costs to be considered.

Recording Prosecution Time (FFI Cases)

All prosecution related work should be recorded on COIN against the relevant prosecution case. Appendix 2 in the Appendix provides a list of what should be included in the Bill of Costs.

Where prosecution related work is carried out prior to approval eg preparation of initial details or taking a VPS, a request should be made to the LO to open a Prosecution case early so that the appropriate time can be recorded.

How to record both Investigation and Prosecution Time

In both Non-FFI and FFI cases, time should be clocked through by all relevant staff  with an appropriate description of the work undertaken entered into the invoice comments field on the time line of the relevant COIN case. The invoice comments will be collated into the schedule to the Bill of Costs to specify the work that has been undertaken against the time recorded.

Preparation of Provisional Bill of Costs

All Bills of Costs should seek to recover 100% of costs/time reasonably incurred on a prosecution.  All Bills of Costs that do not seek to recover 100% MUST be agreed by the Approval Officer and authorised by a Band 1.

The following process applies to all Prosecutions in England and Wales:

• Obtain all the time recorded against the Prosecution case on COIN and also against the Investigation case for non-FFI cases (Qlikview reports should be obtained and manipulated to produce a schedule of itemised work to the Bill of Costs);
• Ensure other recoverable time/costs to date not recorded on COIN are obtained (see Appendix 1 and Appendix 2);
• Prepare the draft provisional Bill of Costs using the template in the Enforcement Guide (E & W), including (i) and (ii) above. The schedule and other supporting documentation eg invoices from external specialists and/or HSL, should be appended to the Bills of Costs.

Where the provisional Bill of Costs seeks to recover 100% of the time / costs expended to date:

Forward to the Approval Officer with the supporting documentation for agreement.

Where the provisional Bill of Costs do not seek to recover 100% of the time / costs expended to date:

• Seek agreement from the Approval Officer by e:mailing the Bill of Costs with clarification of the time/costs not to be recovered and the reasons why. 
• If agreed by the Approval Officer, the Bill of Costs should be e:mailed to the Band 1 with supporting comments and information for authorisation.
• If not agreed by the Approval Officer or authorised by the Band 1, the Bill of Costs with relevant comments should be returned to the Lead Investigator by email for amendment.

Once complete, the provisional Bill of Costs should be forwarded to the LO for sending to the Defendant and Court either with the Initial Details and Friskies Schedule (see Stage 4.5), or separately. It should be made clear to the defendant that the Bill of Costs is provisional and represents costs expended to date, and that the final amount will be higher to take into account further time/costs expended to conclude the case in court. 

Preparing Final Bills of Costs

All additional work to bring the case to conclusion (see Appendix 2) should be included in the final Bill of Costs. The provisional Bill of Costs should therefore be amended to include:

• all time expended prior to attending court;
• known witness expenses, including loss of earnings, travel and subsistence;
• in guilty plea cases an estimate of the likely time to be spent at court, including any travel and subsistence;
• in more complex cases ie defended cases in Magistrates court or Crown Court trials, the Bill of Costs should be completed as far as possible, but be in a format that enables final modifications (ie court attendance by HSE staff and witnesses, including travel and subsistence etc.) to be made at court (likely handwritten). Note: A copy of the final Bill of Costs, including any handwritten additions should be retained for saving to the TRIM folder.

The final costs sought for recovery should include all Solicitor Agents and Counsel costs. Any negotiations between lawyers/barristers acting on behalf of HSE and defendants (including their legal advisors) should include the Lead Investigator. Agreement must be sought from the Approval Officer and Band 1 where negotiations do not seek to recover 100% of costs reasonably incurred.

Saving documentation relating to the Prosecution Bill of Costs

All documentation and records of decisions regarding Prosecution Bills of Costs should be saved with attachments to the relevant Investigation TRIM folder. The words 'Prosecution Bill of Costs' should be included in the TRIM file name (Title). This will assist in providing an auditable trail for the Prosecution costs process.

Monitoring of Prosecution Bill of Costs process

Monitoring of costs recovered in prosecution cases should be undertaken by Band  1s on a regular basis to ensure the above process is operating effectively.

Now go to: Stage 4.5 Serving summons and initial details.

Stage 4.5 Serving summons and initial details

For: Prosecutor / Litigation Officer

Unless it is the Court's practice to serve the summons:

When the summons is received back from the Court:

• Serve the original summons with accompanying letter on the defendant within 5 working days. In addition to the summons, the letter should:
  • explain the mode of trial procedure;
  • if ready, include the initial details, Friskies schedule and provisional Bill of Costs   (see Stage 4.4 above).
• Complete the certificate of service (F145 or F144) and send to the Court. If ready, the initial details, Friskies schedule and provisional Bill of Costs should be included.

In the case of a Limited Company or LLP ensure a senior officer of the duty holder at board level (or equivalent) has been notified.

If the initial details, Friskies schedule and provisional Bill of Costs are not served with the summons and copied to the Court with the certificate of service, they should be sent to both the court and the defendant(s) as soon as practicable thereafter, and in any event, before the first hearing.

Following service of the Summons: 

• Inform the injured person or nominated contact of the bereaved family if the case relates to a fatality and the safety representative(s) or other interested parties if applicable;  
• inform all HSE instructed expert witnesses; and,
• alert the Press Office when early media attention is anticipated.

Performance Standards

• Check receipt of summons back from court 10 working days after submission of same
• Serve summons on defendant within 5 working days of receipt from court.

Now go to Stage 4.6 Publicity below.

Stage 4.6 Publicity

Prosecutor / Litigation Officer

Confirm arrangements for pre and/or post-publicity of the prosecution. Ensure:

• the release of information would contravene any disclosure or information restrictions or harm the defendant's right to a fair trial; and,
• confirm and agree media strategy with Press Office/Regional Media Network.

Now go to Stage 4.7 Confirm the plea below.

Stage 4.7 Confirming the plea

Prosecutor / Litigation Officer

Confirm the plea:

• Within 7 working days prior to the first hearing confirm the defendant's indication of plea.
• If plea unknown at this stage then write to the defence seeking indication of plea and copy correspondence to the Court.

Where the defence confirms in writing the intention to plead guilty, inform the Court in writing.  

Now go to:

• Stage 4.8 Prepare for guilty plea.
• Stage 4.9 Prepare for not guilty plea.
• Stage 4.11 Unknown plea.

Stage 4.8 Prepare for guilty plea

Prosecutor / Litigation Officer

If the defendant has indicated a guilty plea in the Magistrates' Court and the case is to be prosecuted by an inspector:

• Be prepared to satisfy the court of the right to conduct the case and that the summons and initial details have been served.
• Prepare notes (court speech) for the conduct of the case which cover the circumstances and facts, a brief reference to the statutory requirements and an explanation of why proceedings are being taken against the defendant.
• Prepare the final  prosecution Bill of  Costs, (see Stage 4.4: Prosecution Bill of Costs).
• Assemble sufficient sets of all papers, exhibits, etc. relevant to the case including the Friskies Schedule.  
• If agreement on basis of plea is unlikely & the Court may hold a Newton Hearing, consult LAO.
• Prepare a statement of the defendant's record where applicable to assist the court for the purpose of sentence (this also needs to be served on the defence).
• Prepare copies of the VPS to be served on the defence and for use in court.

Now go to Stage 5.1 Appear in court below

Stage 4.9 Prepare for not guilty plea

Prosecutor / Litigation Officer

If the defendant indicates that they may plead not guilty in the Magistrates' Court:

• Appoint LAO lawyer or Solicitor Agent if not already done and brief them on the case.
• Obtain up-to-date witness availability.
• Ensure that a Magistrates Court trial preparation form has been completed and is either served on the Defendant with the Initial Details (if not already served), or as soon as possible thereafter.

Now go to Stage 4.10 Unused material disclosure below

Stage 4.10 Unused material disclosure

Disclosure Officer/ Prosecutor

If the defendant intends to or pleads not guilty in the Magistrates' Court, or is sent for trial at the Crown Court, the prosecutor must Categorise all relevant material identified by the Investigator as either sensitive or non-sensitive.

Compile schedule CPI1 of No-Sensitive Unused Material, CPI2 of Sensitive Unused Material, and the Disclosure Officer's Report to the Prosecutor and pass (reveal) them to the Prosecutor.

The Prosecutor should:

Consider schedules CPI1, CPI2 and the Disclosure Officer's Report to the Prosecutor to decide whether the material should be examined in order to decide whether it undermines the prosecution case or assists the defence case and consequentially should be disclosed to the defence.

Note: Where a Solicitor Agent is appointed as Prosecutor, the role of Disclosure Officer remains with the Inspector (usually the Lead Investigator). Schedules CPI1, CPI2 and Disclosure Officer's Report to the Prosecutor must be signed by the Inspector named as Disclosure Officer.

Initial Prosecution disclosure

Following consideration of schedules CPI1, CPI2 and the Disclosure Officer's Report to the Prosecutor, the Prosecutor should:

• Disclose any unused material to the defence which might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused, be that a single item or several material items which together may have the this effect; or,
• serve a statement on the defence, that there is no such material (at this stage) to disclose.
• In either instance the court must be informed in writing on the action taken to comply with CPIA (there is however no requirement to send copies of any documents served on the defence).
• If sensitive material meets the test for disclosure, seek legal advice – a Public Interest Immunity (PII) application to the Court may be necessary.

Defence disclosure

Following initial prosecution disclosure the defence should:  

• Serve on the prosecution and the court, a defence statement (mandatory in Crown Court cases, voluntary in Magistrates' Court cases). The defence statement should be served within either 28 days in Crown Court cases, or 14 days in Magistrates cases of the Prosecutor complying, or purporting to comply with the Initial Disclosure requirements.  
• If intending to call witnesses at a trial, provide details in advance (name, address and date of birth) to both the prosecution and the court.

The Disclosure Officer and Prosecutor should review the defence statement:

• To assess its adequacy, taking appropriate action should it be inadequate.
• To ascertain if there is material in HSE's possession which meets the disclosure test (ie may be capable of undermining the prosecution case or of assisting the case for the accused). Following the review, the Prosecutor must communicate with the Defence as soon as practicable to:
  • (i) disclose any material meeting the disclosure test; or,
  • (ii) if no such material exists, provide a written statement that no disclosure is required.

Ongoing review and disclosure

The Disclosure Officer and Prosecutor should:

Review throughout the prosecution process, the question of whether there is any unused material which passes the disclosure test and has not yet been disclosed.

Now go to Stage 5.6 Not guilty plea indicated before first hearing

Stage 4.11 Prepare for unknown plea

Prosecutor / Litigation Officer

If the defendant has not indicated a plea:

• If, within 7 days of the hearing, you have heard nothing from the defence in respect of the plea, consider enquiring as to whether the defendant intends to enter a guilty plea as it may save time and costs.
• Prepare for a guilty plea hearing (as at Stage 4.8 above), but in addition, be prepared to prove service of the summons in the event of non-attendance of the defendant.
• Collate evidence of efforts to obtain a plea from the defendant in advance of the hearing.
• Obtain up-to-date witness availability.

If defendant enters a not guilty plea shortly before the case, contact the Court to seek an adjournment to instruct a solicitor agent.

Now go to: Stage 5: Appear in Court

Appendix 1: Investigation Costs to be claimed against convicted Defendants for Non-FFI Investigations

Recoverable time / costs

• All work to ensure that the investigation is completed in an effective and timely fashion:
• HSE staff time associated with the investigation of all reasonable lines of enquiry and gathering evidence (including those which did not subsequently form part of the prosecution case).
• Making the area/scene safe.
• Discussions and meetings with police, other enforcing authorities and CPS to review investigations, including the passing of primacy.
• Enforcement Action in relation to matters under investigation eg Improvement and Prohibition Notices. 
• Taking witness statements and conducting interviews under caution.  
• Liaising with the bereaved, other victims and interested parties.
• Instructing and use of Specialists and Experts (Internal and External).
• All management time directly associated with the investigation including Enforcement Liaison Officer (ELO), Band 2 and Band 1 time. 
• Work carried out by any organisation supporting the investigation eg HSL, or providing expert witness or other services including visual presentation and modelling services. 
• Travel costs incurred by HSE in conducting the investigation (mileage or public transport costs and time).
• The cost of searches, such as those obtained from Companies House and/or Land Registry.
• Costs associated with other searches such as birth / death certificates. 
• Witness costs incurred during the investigation.
• Interpreter's fees.
• Cost of PNC searches made prior to the laying of Informations.
• Printing, scanning, photocopying and other associated costs.
• Preparing the investigation report, information(s), summons(es), initial details of the prosecution case, Friskies schedule and prosecution bill of costs.
• Time spent considering and approving the prosecution case.
• Work and other costs associated with the retention and recording of material. 
• Other Administration costs related to the Investigation not included above.

Appendix 2: Prosecution Costs to be claimed in all Prosecution Cases (FFI and Non-FFI)