Prosecution of foreign defendants

OG Status: Partially open

General approach

1. Foreign companies that have an establishment (ie a branch or place of business) in the United Kingdom must register a number of particulars in this country with Companies House1, and will generally be liable for prosecution.

[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]

6. In all cases where you do want to gather evidence abroad, you must consult Legal Adviser's Office.

Evidence from abroad

7. LAO may apply in writing to a magistrates' court for the issue of a 'letter of request'. The letter of request should always be drafted by LAO, requesting the assistance of a court, tribunal or other appropriate authority abroad in obtaining evidence outside the UK, which may consist of witness statements, documents or other items of evidence, where:

  • an offence has been committed or there are reasonable grounds for suspecting that an offence has been committed; and
  • proceedings in respect of that offence have been instituted or the offence is being investigated.

8. Letters of request can only be used to obtain evidence, not other pieces of information which are not to be used as evidence. This can raise complications when material is required for the purposes of satisfying HSE's disclosure obligations. Such issues should be discussed with LAO prior to the drafting of the letter of request.

9. These provisions are set out in s.7 of the Crime (International Co-operation) Act 2003. Note that, unlike the Police and certain other authorities, HSE is not a designated prosecuting authority for the purposes of s.7(5), and therefore is not entitled to send letters of request in its own right.

10. There may be circumstances in which informal contact is made with overseas investigative or regulatory bodies. LAO should always be consulted where such contact is anticipated. The letter of request procedure should be followed in all cases where admissible evidence is needed, unless LAO has advised otherwise.

11. In some cases, it may be appropriate for an inspector to be present when a witness is to be questioned abroad in order to deal with matters of form and content, and to have the opportunity to ask questions and make a note of the answers. In such cases, the need for an inspector to accompany the local officer should be explained to LAO prior to the drafting of the letter of request, as it will need to be included. LAO may be able to advise on whether the country from which the evidence is to be obtained has particular requirements or limitations relating to the attendance of an officer.

12. However, while each case should be considered on its merits, the presence of an inspector will not normally be warranted for the collection of copies of original documents or simple interviews, where question sets could be provided to local officers.

Service of proceedings

13. Sections 3 and 4 of the Crime (International Co-operation) Act 2003 provide that a summons requiring a person charged with an offence to appear before a court in the United Kingdom to answer a charge, or a person to attend to give evidence as a witness, can be served outside the United Kingdom, either by post (s.3) or, if otherwise than by post, in accordance with arrangements made by the Secretary of State (s.4).

14. This will not impose an obligation under UK law , and therefore no proceedings for contempt of court or for the issue of a warrant can be taken for failing to comply with such a warrant. The summons must also be accompanied by a notice giving the information required by rule 3 of the Magistrates Courts (Crime (International Co-operation)) Rules 20042.

15. If the person at whose request the summons is issued believes that the person on whom it is to be served does not understand English, he must inform the Court of this fact and provide a copy of the summons (or so much of it as is material) translated into the appropriate language (s.3(3)).

16. Where a summons is not served by post, the present arrangement requires the summons and accompanying documents to be forwarded via the United Kingdom Central Authority, which forms part of the Judicial Co-operation Unit of the Home Office.

17. In all cases where it is proposed to serve a summons outside the UK, the advice of Legal Adviser's Office must be sought.

18. If a summons is served on a defendant (or a person required to attend as a witness) outside the United Kingdom, a notice must accompany the process giving specific information as is required by Part 49 of the Criminal Procedure Rules 2015.

19. Part 49 requires an explanation of where the party can obtain information from (ie. HSE) about their rights in connection with the current proceedings. For example, this will be the right to have a solicitor present at the hearing. This does not mean providing any advice on the case, but simply explaining that it is a case brought in the English or Welsh criminal courts, that they have the right to attend and be represented at the hearing, and that the case may still go ahead even if they choose not to attend.

20. The information to be included in the notice is the relevant address of the HSE office dealing with the case, together with telephone & fax numbers and e-mail address. There should also be the name of the person at HSE who can provide the information about the summonsed party's rights (the investigating inspector in the specific case), together with their telephone & fax numbers and e-mail address.

21. All of that information should be translated into the language of the party and, together with a translated copy of the summons and information, be sent to the relevant Magistrates' Court justices' clerk or Crown Court officer.

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Admissibility of evidence from abroad

22. If voluntary statements made by witnesses abroad are obtained by a letter of request in accordance with the Crime (International Co-operation) Act 2003 s.7, they can be relied on at committal.3 A statement taken abroad should not include the perjury declaration4, as this is unenforceable abroad and may have the effect of calling the voluntary character of the statement into question.

23. If a statement is taken abroad otherwise than in accordance with the s.7 procedure, it is unlikely to be admissible for purposes of committal, except in unusual cases, for example where a statement is taken on UK consular premises abroad in the same form as if it were taken in this country.

24. A statement taken abroad is subject to the same provisions as a statement taken in this country in respect of:

  • its admissibility at trial; and/or
  • the obligation to bring the witness to court to give evidence in person, if so required by a defendant.

25. A statement taken by investigators from another jurisdiction maybe in a different format to one taken under domestic legislation. LAO should always be consulted if there is a doubt as to whether material obtained from abroad can be used as evidence.

26. While a court can issue a summons to a witness overseas, there is no provision to enable this to be enforced5.

27. Statements and documents may be admitted in evidence in criminal proceedings if they meet the conditions set out in the Criminal Justice Act 2003 ("CJA") sections 116 and 117, which are qualified by s.126. Where, at the committal stage, a prosecutor considers that a statement on which s/he relies is likely to be admissible at trial only if he can invoke s.116 or s.117, s/he must notify the court and the other parties to this effect6.

28. A statement will be admissible if:

  • the person who made it is outside the United Kingdom and it is not reasonably practicable to secure his/her attendance at trial (s.116(2)(c) CJA); and
  • the statement, if taken abroad, has been obtained in accordance with the Crime (International Co-operation) Act 2003. 7

29. All reasonable steps to secure a witness's attendance, having regard to the means and resources available to the parties, must have been taken before sections 116 and 117 CJA can be relied on.8 Therefore, foreign witnesses should be regarded in the same manner as those within the jurisdiction in terms of the obligation to bring them before a court, if required. Every attempt must be made to encourage witnesses to attend as otherwise the court may not allow the prosecution to rely on their written statements.

30. Section 126 CJA 2003 gives a trial judge or bench an overriding discretion not to admit a statement or document admissible under sections 116 and 117 if the court is satisfied that the case for excluding the statement substantially outweighs the case for admitting it, taking into account the value of the evidence. Section 126 does not prevent the Court from excluding a statement if it is of the opinion that it ought not to be admitted in the interests of justice. In considering the interests of justice, the court would usually consider a number of factors, such as:

  • possible unfairness to the accused (this may, for example, include whether it was possible to challenge a statement made by questioning the witness who made it, and whether, if proceedings have already been instituted, the local court allowed the parties to the proceedings to be legally represented when the evidence was taken); and
  • the likely authenticity of documents.

31. Section 117 of the Criminal Justice Act 2003 provides that statements in a document will be admissible in evidence of any fact on which oral evidence would be admissible, if certain conditions are fulfilled. Principally, the document must have been created or received in the course of a business trade or profession or the holding of a paid or unpaid office, and the information contained in it supplied by a person who had or may reasonably be supposed to have had personal knowledge of the matters dealt with. Such documents, when obtained abroad, will only be admissible at committal if obtained pursuant to a letter of request9, and will otherwise be excluded.

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Attendance of defendants

32. Extradition is the process by which one jurisdiction will seek to have delivered to it a person found within another jurisdiction. It is only available for the prosecution of individuals, and is restricted to offences carrying a penalty of imprisonment of at least one year. Therefore it is available for manslaughter, but not for most of the most frequently encountered offences under HSWA.

33. Extradition is normally invoked only in the most serious cases. If you are of the opinion that it should be pursued, you should contact Legal Adviser's Office immediately. Where an overseas defendant, individual or corporation, fails to answer a summons forwarded under a letter of request, proceeding in his/her/its absence will seldom be possible. In such circumstances, there is no explicit provision for dealing with mode of trial in respect of offences triable either way, which include the majority of health and safety offences.

Scotland and Northern Ireland

34. Service of a summons requiring a person charged with an offence to appear before a court in England and Wales may, in such manner as may be prescribed by rules of court, be served on him/her in Scotland or Northern Ireland10.

35. For guidance on serving a summons on a defendant in Scotland or Northern Ireland, see The summons. Should a corporate defendant then fail to appear, the prosecution can proceed in their absence as with a defendant company based within England and Wales.

Requests from abroad for mutual legal assistance in criminal cases

36. On occasion, HSE may receive a request for assistance from an overseas judge or prosecutor in connection with a criminal investigation or prosecution being conducted by them. This could, for example, be a request to: seek information from witnesses; undertake enquiries; take statements; gather evidence; or obtain certified copies of records of convictions and sentences imposed. You should contact LAO for advice on how to handle any such request.

37. These requests are governed by various international treaty arrangements made by the United Kingdom. Some of these treaties are multilateral ones11 while others are bilateral12.

38. Requests should not be treated as requests for information under section 1(1) of the Freedom of Information Act 2000.

Footnotes

  1. Companies Act 1985 s.690A &the Overseas Companies Regulations 2009.
  2. S.I. 2004 No.1048. For the Crown Court, see the Crown Court (Amendment) Rules 2004 (S.I. 2004 No.1047) and see Part 32 Criminal Procedure Rules 2013. Back
  3. Magistrates' Courts Act 1980 s.5E. Back
  4. Magistrates' Courts Act 1980 s.5B(2)(b) that the maker knows that he would be liable to prosecution if he states anything that he knows to be false or that he does not believe to be true. Back
  5. Crime (International Co-operation) Act 2003, s.3(5) & (6). Back
  6. Magistrates' Courts Act 1980 s.5D. This section and other relevant sections in Part II of this Act are to be repealed by the CJA 2003, but at the time of writing, the provision which repeals section 5D had not yet commenced. Accordingly, it is considered that the section 5D procedure should be followed until it is repealed, and the references to ss23 and 24 of the 1998 Act should be read as a reference to ss116 and 117 of the 2003 Act respectively (s17 Interpretation Act 1978). Back
  7. Crime (International Co-operation) Act 2003, s.7. Back
  8. R v Maloney [1994] Crim LR 525 (dealing with the former ss 23 and 24 of the CJA 1998). Back
  9. Magistrates' Courts Act 1980 s.5E (this section will continue until repealed – see footnote 8 above). Back
  10. Section 39(1) Criminal Law Act 1977 and Part 4 Criminal Procedure Rules 2013. Back
  11. Such as the 1959 European Convention on Legal Assistance in Criminal Matters & Additional Protocol of 1978; the European Union Convention on Mutual Legal Assistance in Criminal Matters between the Member States of the European Union and its 2001 Protocol; or the Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth – 'the of the European Union and its 2001 Protocol; or the Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth – 'the Harare Scheme'. Back
  12. Such as the one made by the United Kingdom with the USA. Back
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Updated 2022-05-10