Evidence that may assist your investigation
- Types of evidence
- Contract documents
- Company documents
- Coroners' documents
- Liaison with other authorities
- Accessing communications data
- Directed surveillance
- Register entries
- Photographs and drawings
- Original documents or copies?
Types of evidence
1. Depending on the nature of your investigation, you may need to obtain documentary and/or real evidence. Common examples are:
- parts of machinery;
- samples;
- photographs;
- videos;
- CCTV recordings;
- HSE letters or enforcement notices which constitute previous advice;
- HSE or company records of previous incidents or relevant near misses; and
- a number of different types of documents, such as company records, registers, plans, examination reports, risk assessments and method statements.
Contract documents
2. Where you need to show the extent of the undertaking, contract documents should be obtained from all those concerned as these may assist in determining who has duties under health and safety legislation. This is particularly important when a number of contractors are engaged on the same work.
Company documents
3. Where you are investigating an offence by a registered company, you will need to obtain details of the company's registered office, directors and, where a prosecution is being taken, a copy of the latest accounts. Details of how to do this are set out in `Identifying the Defendant'. Company information can be obtained from Companies House, see the Companies House[166] web site.
4. If directors are being considered for prosecution under s37 of HSWA, minutes of board meetings may be relevant.
Coroners' documents
5. The record made of an inquest may contain useful admissions by the defence. The inquest will usually take place before a health and safety prosecution. You should liaise with the coroner, both with regard to evidence and the hearing date. See the Work-related deaths and inquests[167] section for further guidance.
6. The recording of a Coroner's inquest and copies of documents put in evidence can be obtained from the Coroner. Rule 13 of the Coroners (Inquests) Rules 2013 requires the Coroner to supply various documents (listed in Rule 13(2)) to an interested person on request; this includes the post-mortem examination report, the recording of an inquest held in public, any other report provided to the Coroner during the course of the inquest, or any other document which the Coroner considers relevant to the inquest. The Coroner cannot charge a fee for copy documents disclosed before or during the inquest but may charge for documents provided after the Inquest has concluded, including recordings.
7. The Coroner may also make a document available for inspection at a particular time and place although the coroners own notes are no longer disclosable and cannot be inspected.
8. The inquest itself may provide useful information, and your report on the inquest should particularly note the demeanour of witnesses giving evidence.
Liaison with other authorities
9. Inspectors should liaise with other enforcing authorities, such as the police, if they have an involvement in the investigation. 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.
10. 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.
11. 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 exhibits which another authority may want to take possession of, but which HSE requires in order to fulfil its statutory role.
Work-related death Protocol (PDF) [168] must be followed and should be read in conjunction with the associated Work-related Deaths Protocol: Practical Guide (PDF) [169] which provides helpful practical guidance on following the principles of liaison from the Protocol.
Accessing communications data
13. 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 2010 made under RIPA1 enables HSE to obtain certain information from communications providers. HSWA Section 20 powers should not be used to obtain such data.
14. Situations where it may be appropriate to acquire such information could include, for example, the need to obtain a suspect's contact details where only a mobile telephone number is available, or the need to obtain a forwarding address for a suspect or witness who has moved. Guidance on the types of information that can be obtained, and the procedure to be followed for seeking authorisation and making a request for communications data, can be found in the Legal and Enforcement section of the intranet. Acquisition of the information will only be justifiable if it is both necessary and a proportionate use of powers.
15. The Order is only relevant to communications data held by a communications service provider (eg 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.
Directed surveillance
16. Directed surveillance involves covert observation where information relating to the private or family life of any person is likely to be obtained. It would not usually include the general observations that are part of an inspector's normal work and therefore the circumstances in which directed surveillance is necessary in HSE's work are likely to be rare. However, it might be considered appropriate on occasions, such as to observe a person's home to establish the identity of the landlord, or to film pedestrian and transport movements at a passenger ferry terminal. The use of directed surveillance is regulated by Part II of RIPA and must be authorised in accordance with the provisions of the Act2.
17. Directed surveillance will intrude upon a person's privacy and should not be undertaken if the information being sought can be gained by other means. Should it be necessary to carry out directed surveillance, and the degree of intrusion can be justified as proportionate to the seriousness of the investigation, you should follow the guidance set out in the Legal and Enforcement section of the intranet.
18. Failure to follow the proper procedures may result in any evidence obtained being excluded by the court, as well as referral of the matter to RIPA's regulatory bodies. Therefore, if you are in any doubt, you should seek guidance and apply for authorisation, as set out in the Legal and Enforcement guidance referred to above.
Register entries
19. An entry, the failure to make an entry or the failure to keep a specific register may be relevant to your investigation. 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
20. Photographs and drawings are useful evidence to illustrate conditions and circumstances and should be used whenever possible. Both film and digital images may be used as evidence.
21. Where it is intended to use digital imagery as evidence, staff should follow the guidance on the HSE kit pages of the intranet. This will ensure that the evidential integrity of the images is maintained and can be demonstrated to the court.
Original documents or copies?
22. Under section 20(2)(k) HSWA, inspectors have the power to require any person to produce any books or documents which must be kept under any of the relevant statutory provisions or which are necessary for them to see for the purposes of their investigation. The section also gives inspectors the power to inspect and take copies of such documents, but not to take original documents into possession.
23. Where you do not have access to copying facilities on site, you may need to remove an original document for copying. In such cases, the section 20(2)(k) power is likely to include the power to remove documents in order to copy them3. You may also rely on section 20(2)(m), which gives inspectors 'any other power which is necessary' for the purpose of carrying into effect the relevant statutory provisions. Should this be necessary, you should give a responsible person a notice on form LP24, which identifies the document, states that you have taken possession of it and confirms that you will return the document as soon as the copy has been made. You should record in your notebook your reasons for taking the original for copying and also make a note when you return it.
24. The use of copy documents is permitted in criminal proceedings, provided they are authenticated to the court's satisfaction4. In most cases, therefore, copy documents, properly authenticated and exhibited by an appropriate witness, are likely to be sufficient for evidential purposes. Original witness statements should be made available to the court at trial, together with exhibits (see Exhibiting evidence[170]).
25. In circumstances where you wish to produce at court an original document that is held by the defendant, you should consider serving a Notice to Produce or applying to the court for a summons to require a witness to produce the document. See Production of documents[171] for further guidance. A witness summons to produce documents cannot be obtained against a defendant who is an individual.
26. Occasionally, a document may have such intrinsic evidential value, and be of such significance for any subsequent proceedings, that it is necessary to take the original into possession. In such circumstances, which are likely to be rare, you will have to rely on your section 20(2)(m) power. Use of the power in this way must be justifiable as necessary and proportionate, and you should make a careful note of your reasons for making the decision (see Obtaining evidence using section 20 powers[172]). You should use form LP23 to give notice that you have taken an original document into possession, and provide the duty holder with a copy of the document in question.
27. In rare cases where only an original document will suffice, and you consider it inappropriate or impractical to take the original (for example, where it forms part of a much larger book or register), a witness statement should obtained from the person who owns or has custody of the document, exhibiting a copy of the entry and confirming his/her willingness to produce the original at court. Should the witness be unwilling to agree to produce the original, you should include this in the statement, make a record in your notebook and further consider using your power under section 20(2)(m) to take possession of the original.
28. Further guidance on the collection of evidence, including original and copy documents, can be found in OG: Material and evidence management (collection, retention and disposal)[173].
Footnotes
- The Regulation of Investigatory Powers (Communications Data) Order 2010 came into force on 6th April 2010 and was made under the Regulation of Investigatory Powers Act (RIPA) 2000. Back to reference of footnote 1
- The Regulation of Investigatory Powers Act 2000. Back to reference of footnote 2
- Cantabrica Coach Holdings Limited v Vehicle Inspectorate [2001] UKHL 60. In this case, the House of Lords considered the extent of a power given by s.99 of the Transport Act 1968 to authorised officers to inspect and copy tachograph charts and other documentation. The Court held that, whilst records should generally be inspected and copied where they are produced and handed over, the power also permits officers to remove the documentation from the operator's premises, for such period as is reasonably required, for the purpose of inspection and copying, in circumstances where it is not reasonably practicable for them to carry this out on site. Back to reference of footnote 3
- Criminal Justice Act 2003, section 133: Where a statement in a document is admissible as evidence in criminal proceedings, the statement may be proved by producing either the document or (whether or not the document exists) a copy of the document, or of the material part of it, authenticated in whatever way the court may approve. Back to reference of footnote 4