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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 & 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):

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

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

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.

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:

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:

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:

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:

  • Check the summons has been returned by the court within 10 working days of submission, if not, contact the court accordingly.
  • When the summons is received back from the Court:

    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: 

    Performance Standards

    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:

    Now go to Stage 4.7 Confirm the plea below.

    Stage 4.7 Confirming the plea

    Prosecutor / Litigation Officer

    Confirm the plea:

    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

    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:

    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:

    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:

    Defence disclosure

    Following initial prosecution disclosure the defence should:  

    The Disclosure Officer and Prosecutor should review the defence statement:

    Ongoing review and disclosure

    The Disclosure Officer and Prosecutor should:

    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 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

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

    Costs to be claimed via Prosecution Bill of Costs Costs which cannot be claimed
    All work to ensure that the prosecution case progresses to conclusion in a timely and effective manner including: Any costs already recovered via FFI.
    Assisting the coroner ie attending meetings, pre-inquest reviews (PIRs), preparing interim and final reports including associated disclosure, and attending inquest.  Time spent considering and approving the prosecution case in FFI cases (This 'management function' has already been factored into the FFI hourly rate). 
    Preparation, serving and other work associated with the Initial Details and Friskies Schedules. Prosecution costs attributable against any Duty Holder in Multi Duty Holder cases where no Informations are ultimately laid, or the case (ie all Informations) is withdrawn before or during the case.   
    Briefing prosecutor where investigating inspector is not taking forward the prosecution. Prosecution costs against Duty Holders in Multi Duty Holder cases found 'Not Guilty'.
    Any further investigation work required after Informations have been laid eg as a result of legal advice or for advance rebuttal purposes. Preparation of Press Releases and other media statements.
    Instructing Specialists and Experts (Internal and External) after the laying of Informations. Time attending, including associated travel and subsistence costs for those attending court who are not required or essential to the case eg training, CPD, potential V&A issues and performance management purposes, interest in the prosecution.  
    Briefing, obtaining and receiving advice from lawyers, including solicitors agents and barristers, both before the laying of Informations, and also during the investigation stage (such costs are not recoverable under FFI).  
    Any work required by investigators (internal and external) and expert witness (internal and external) specifically in relation to the prosecution case after Informations have been laid .eg production of a statement to produce report, additional opinion required due to legal advice or to rebut potential defences, production of agreed expert witness reports including visual presentation and modelling.  
    All management time to ensuee that the case progresses to conclusion in a timely and effective manner.  
    Costs associated with PNC and disciplinary checks for Disclosure purposes (CPIA / CJLA).  
    Disclosure work ie compliance with CPIA.  
    Responding to defendant enquiries and correspondence, including considering basis of pleas and defendant expert reports or submissions.  
    Printing, scanning, photocopying and other associated costs. Compiling Court Bundles
    Contacting witnesses and arranging attendance at Court.
    Interpreter's fees eg attendance at court for translation of witness evidence.
    Liaising with Victims, including taking Victim Personal Statements (VPS), including the bereaved / interested parties.
    Witness and expert witness costs including allowances for loss of earnings, travel costs, subsistence and agreeing any invoices for professional services.
    Travel and subsistence costs incurred by HSE in relation to the prosecution including court attendance. Record time on COIN but keep a note for inclusion in Prosecution Bill of Costs.
    Court Appearances.  
    Updated 2021-01-14