Evidence which may assist your investigation

Types of evidence

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;
  • a number of different types of documents, such as company records.

Contract documents

Where you need to show the extent of the undertaking, contract documents should be obtained from all those concerned as these should assist in determining who has duties under health and safety legislation. This is particularly important when a number of contractors, or subsidiary companies in a group, are engaged or involved with the same site or place of work.

Company documents

Where you are investigating an offence by a registered company, you will need to obtain details of the company's registered office and directors. Company information can be obtained from Companies House, see the Companies House[52] website.

If directors are being considered for prosecution under s37 of HSWA, minutes of board meetings, or other committees/groups relevant directors have been involved with are likely to be relevant.

Liaison with other authorities

Inspectors should liaise with other enforcing authorities, such as the police, if they have an involvement in the investigation (see Work Related Deaths Protocol Scotland [228KB] (PDF) [53]). 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.

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.

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 productions which another authority may want to take possession of, but which HSE requires in order to fulfil its statutory role.

Accessing communications data

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 2003 made under RIPA 1 enables HSE to obtain certain information from communications providers. HSWA Section 20 powers should not be used to obtain such data.

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.

The procedure to be followed for seeking authorisation and requesting communications data is in interim guidance on the FOD legal bulletin board.

Register entries

An entry, the failure to make an entry or the failure to keep a specific register may be relevant to your investigation, for example, the failure to have particulars of a young person entered in the general register. 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

Photographs and drawings are useful evidence to illustrate conditions and circumstances and should be used whenever possible. The photographer or whoever prepares the drawing should provide a statement setting out the circumstances in which the photographs were taken or drawing was made, on whose instructions; the statement should be dated and signed. Inspectors and photographers working for HSE should be methodical in taking and recording photographs. Guidance on evidential use of photographs should be followed in Scotland. The witness who identifies the photographs in court must be able to say they have not been altered and should state so in their statement.

Original documents or copies?

Generally when a party seeks to rely on the contents of a paper document in court, the original document should be produced. This does not apply to tape recordings and film. Where possible, therefore you should try to ensure the originals of paper documents are available for the court.

Section 20 (2)(k) HSWA gives you powers to inspect and take copies of documents only. However if the owner of the document has refused to produce the original and a copy will not suffice for court proceedings, you should seek advice from the Procurator Fiscal: a refusal to produce an original document may constitute an offence. However, there are some circumstances when it is legitimate to withhold documents, for example where these are legally privileged[54].


Footnote

The Regulation of Investigatory Powers (Communications Data) Order 2003 (SI 2003 No.3172) came into force on 5th January 2004 and was made under the Regulation of Investigatory Powers Act (RIPA) 2000. Back

Link URLs in this page

  1. Enforcement homehttps://www.hse.gov.uk/enforce/index.htm
  2. Enforcement guide (Scotland) homehttps://www.hse.gov.uk/enforce/enforcementguidesc/index.htm
  3. Role of CO & PF Servicehttps://www.hse.gov.uk/enforce/enforcementguidesc/rolecopf.htm
  4. Overview - Collecting witness evidencehttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingwitness/index.htm
  5. Collecting witness evidence - Introductionhttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingwitness/intro.htm
  6. Order of collecting evidencehttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingwitness/order.htm
  7. Witness statementshttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingwitness/statements.htm
  8. Overview - Collecting physical evidencehttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingphysical/index.htm
  9. Collecting physical evidence - Introductionhttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingphysical/intro.htm
  10. Evidence which may assist your investigationhttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingphysical/evidence.htm
  11. Evidence using s20 powershttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingphysical/obtaining.htm
  12. Preparing evidence for use in courthttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingphysical/preparing.htm
  13. Overview - Expert evidencehttps://www.hse.gov.uk/enforce/enforcementguidesc/expert/index.htm
  14. The experthttps://www.hse.gov.uk/enforce/enforcementguidesc/expert/expert.htm
  15. Site visitshttps://www.hse.gov.uk/enforce/enforcementguidesc/expert/visits.htm
  16. The reporthttps://www.hse.gov.uk/enforce/enforcementguidesc/expert/report.htm
  17. Expert evidence - At courthttps://www.hse.gov.uk/enforce/enforcementguidesc/expert/atcourt.htm
  18. Status of workershttps://www.hse.gov.uk/enforce/enforcementguidesc/status.htm
  19. Overview - Identifying the accusedhttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/index.htm
  20. Identifying the accused - Introductionhttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/intro.htm
  21. Companieshttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/companies.htm
  22. Partnershipshttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/partnerships.htm
  23. Other offendershttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/offenders.htm
  24. Foreign offendershttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/foreign.htm
  25. Insolvencyhttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/insolvency.htm
  26. Prosecution of individualshttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/individuals.htm
  27. Proceeding against employeeshttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/employees.htm
  28. Proceeding against Crown employeeshttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/crown.htm
  29. Proceeding against directors, etchttps://www.hse.gov.uk/enforce/enforcementguidesc/identifying/directors.htm
  30. Overview - Reporting to the Procurator Fiscalhttps://www.hse.gov.uk/enforce/enforcementguidesc/report/index.htm
  31. Reporting processhttps://www.hse.gov.uk/enforce/enforcementguidesc/report/process.htm
  32. Form of report to Procurator Fiscal https://www.hse.gov.uk/enforce/enforcementguidesc/report/form.htm
  33. Drafting complaintshttps://www.hse.gov.uk/enforce/enforcementguidesc/report/complaints.htm
  34. Disclosure in criminal proceedingshttps://www.hse.gov.uk/enforce/enforcementguidesc/disclosure-in-criminal-proceedings.htm
  35. Criminal courtshttps://www.hse.gov.uk/enforce/enforcementguidesc/criminal.htm
  36. At courthttps://www.hse.gov.uk/enforce/enforcementguidesc/atcourt.htm
  37. Penaltieshttps://www.hse.gov.uk/enforce/enforcementguidesc/penalties.htm
  38. Appealshttps://www.hse.gov.uk/enforce/enforcementguidesc/appeals.htm
  39. Fatal accident inquiries (FAIs)https://www.hse.gov.uk/enforce/enforcementguidesc/fatal.htm
  40. Publicityhttps://www.hse.gov.uk/enforce/enforcementguidesc/publicity.htm
  41. Overview - Civil proceedingshttps://www.hse.gov.uk/enforce/enforcementguidesc/civil/index.htm
  42. Generalhttps://www.hse.gov.uk/enforce/enforcementguidesc/civil/general.htm
  43. Backgroundhttps://www.hse.gov.uk/enforce/enforcementguidesc/civil/background.htm
  44. Factual statementshttps://www.hse.gov.uk/enforce/enforcementguidesc/civil/statements.htm
  45. Disclosure of documents and productionshttps://www.hse.gov.uk/enforce/enforcementguidesc/civil/disclosure.htm
  46. Precognitionshttps://www.hse.gov.uk/enforce/enforcementguidesc/civil/precognitions.htm
  47. Inspectors as witnesseshttps://www.hse.gov.uk/enforce/enforcementguidesc/civil/witnesses.htm
  48. Improvement and prohibition noticeshttps://www.hse.gov.uk/enforce/enforcementguidesc/notices.htm
  49. Employment tribunalshttps://www.hse.gov.uk/enforce/enforcementguidesc/tribunals.htm
  50. Food and Environment Protection Act 1985 (FEPA)https://www.hse.gov.uk/enforce/enforcementguidesc/fepa.htm
  51. Sitemaphttps://www.hse.gov.uk/enforce/enforcementguidesc/sitemap.htm
  52. Companies Househttp://www.companieshouse.gov.uk/
  53. Work Related Deaths Protocol Scotland [228KB]https://www.hse.gov.uk/scotland/assets/docs/workreldeaths.pdf
  54. legally privilegedhttps://www.hse.gov.uk/enforce/enforcementguidesc/collectingphysical/obtaining.htm#legal
  55. Work Related Deaths Protocol Scotlandhttps://www.hse.gov.uk/scotland/assets/docs/workreldeaths.pdf

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Updated 2021-11-02