Relations with other prosecuting agencies

The decision to take over proceedings should always be taken at Chief Crown Prosecutor or Director Casework level and the CPS should only accede to such a request if satisfied that there are particular difficulties or other significant public interest considerations that merit involvement. The following factors are a guide only:

• the proceedings have been brought in blatant disregard of the Code for Crown Prosecutors;
• there is an unsatisfactory reason for the withdrawal of proceedings or a failure to proceed.

Where CPS takes over the conduct of proceedings the Service assumes complete control of them.

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Active intervention

In certain circumstances, the CPS will take the initiative and intervene in a private prosecution conducted by a body which regularly institutes criminal proceedings and which is recognised as possessing a particular expertise about matters in respect of which it prosecutes. It will be very unusual for the CPS to intervene in such a case, but the wider public interest may on rare occasions support intervention particularly where:

• there is a danger that the prosecutor is about to stop an undoubtedly important case for what may be an inappropriate reason; or
• where the police, the CPS, or any other public prosecutor had promised the defendant that he would not be prosecuted at all (a promise of an immunity from prosecution) -not including cases where the prosecuting authorities had merely informed the defendant that they would not be bringing or continuing proceeding; or
• where the defendant has already been cautioned for the offence, and the giving of the caution was in accordance with Home Office cautioning guidelines.

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Procedure

Advice

Generally

The CPS should not provide advice or guidance unless it is clear that:

• The CPS is the appropriate prosecutor;
• That a Crown Prosecutor is in full possession of all the relevant facts;

and

• The file accords with the Manual Guidance.

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Provision of advice

In advice cases where a criminal offence is revealed that could or would normally be prosecuted by another prosecution authority the prosecutor should check that the police have notified the relevant prosecution authority/agency and consider whether the case may be more appropriately handled by the authority/agency concerned.

Where there may be some doubt as tq the appropriate authority the prosecutor should always discuss the matter with the other prosecuting authority/agency with an interest and agree who is to prosecute the matter.

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Consent to prosecute

Where the CPS takes over the conduct of proceedings a prosecutor must ensure that any consent to the institution of proceedings which is required from a person other than the Director is obtained before proceedings commence. This applies particularly in Customs and Excise prosecutions.

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Assigned cases

Where another prosecuting authority/agency has the major interest in a prosecution or primacy has been agreed it may be appropriate to consider assigning CPS proceedings to that authority/agency.

Where a case is assigned under section 5 of the Act a prosecutor must send standard letters of assignment set out in section 2 of the National Forms Register National Forms Register to (where appropriate):

• the other prosecuting agency;
• the defendant or his or her solicitors;
• the police;
• the court.

In assigned cases the CPS should not withdraw or discontinue the case.

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Assigned cases: costs

When proceedings are assigned under section 5 of the Act:

• the CPS must not ask the other prosecuting authority to seek any costs which we may have incurred;
• it is not appropriate to make any contribution towards the expenses of the other prosecuting agency in conducting the CPS part of the case.

When the CPS take over the conduct of a case under section 6(2) of the Act the CPS must only seek the costs the Service has incurred in the conduct of the case. This does not apply where the CPS takes over the conduct of private prosecutions.

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Health and Safety Executive (HSE)

Work related deaths

A protocol has been developed between the CPS, HSE, The Local Government Association (representing local authorities), British Transport Police and the Association of Chief Police Officers [ACPO] promoting a structured approach to liaison where there is a work-related death. Copy of the protocol is at Annex 2.

The protocol builds on the Prosecutors Convention and extends the principles of co-ordinated decision making to encompass the investigation stage.

The principles of the protocol must always be followed. Where there is an issue that impacts upon a principle articulated in the protocol the matter should be drawn to the attention of the local Prosecution Co-ordinator who may wish to consult the National Liaison Committee responsible for the strategic overview of relations between the CPS, HSE, the Local Government Association, British Transport Police and ACPO.

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Pre-charge advice manslaughter/corporate manslaughter

Where consideration is given to charging an individual with manslaughter in a situation envisaged under the protocol, police should seek the advice of the CPS.

CPS Areas should be aware that where the offence concerns:

• Allegations of gross negligence manslaughter;
• Allegations of corporate manslaughter;

or

• Manslaughter against members of the medical or paramedical profession.

All such cases must be referred to Casework Directorate.

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Prosecution under the Health and Safety at work etc (HSW) Act 1974

Offences under the Health and Safety at Work etc Act 1974 may only be prosecuted by:

• Health and Safety Executive
• Local Authority responsible for enforcement in certain establishments e.g. shops and offices
• Environment Agency
• CPS

Where the CPS is approached with a view to granting consent under section 38 of the HSW Act - 1974 the matter should always be referred to Casework Directorate.

Where the Health and Safety Executive refer an incident to the police with a view to prosecution for offences other than under the 1974 Act, the case may be progressed locally.

Where, on review, a CPS prosecution may justify the inclusion of supplementary or complementary charge(s) under the HSW Act 1974, the Crown Prosecutor may find it helpful to discuss the matter with HSE Solicitors Branch who are a valuable source of reference.

In all cases where HSE Inspectors were involved in an investigation either in the lead or assisting police the HSE will wish to recover their costs and the necessary application, informed by discussion with the HSE, should be made to the sentencing court.

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The Benefits Agency

The principles of the original agreement with the DSS should still be followed.

The principles of the Prosecutors Convention complement the current agreement with the DSS which is set out in full at Annex 3 Policy Group Circular No.1511994 of this Chapter.

Agreement should be reached with DSS in writing as to the responsibility for the case having regard to the principles - Annex 3.

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The Revenue and Customs Prosecution Office (RCPO)

In the majority of cases in which there are dual interests of both police and RCPO primacy is dealt with by liaison at an operational level between the investigators and should not trouble the CPS. However, where the matter is with or has been referred to the RCPO Solicitors Office then the principles of the Prosecutors Convention - Annex 1 apply and must be followed.

When a request is received from the RCPO to take over conduct of the whole prosecution, the criteria outlined above should be applied and, where appropriate, formal assignment should take place.

When the CPS wish to take over the prosecution of a RCPO case, following consultation, and it is to proceed with a combination of Customs and police charges, the prosecutor should ensure that the CPS are in possession of a Proceedings Order issued by the Commissioners. Such an Order will also be required in the event that proceedings are subsequently to be stayed.

Where RCPO wish to take over a CPS prosecution, the decision should be taken by the Head of the Criminal Justice Unit, Head of Trial Unit or Head of HO Division.

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Industrial Tribunals

Industrial Tribunals have the power to secure the attendance of witnesses and the production of documents by the issue of summonses. A person who has been summoned to attend before an Industrial Tribunal commits an offence if he or she subsequently fails to attend. The offence is summary only with a maximum penalty of a fine not exceeding level three on the standard scale: The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (511993 No.2687), Rule 4(2), and the Employment Protection (Consolidation) Act 1978, Schedule 9, Regulation 1 (7).

The Service has agreed with the Central Office of the Industrial Tribunals ("COlT") to undertake the prosecution of such offences.

The authority to prosecute offences, other than those referred to the Service by the police, derives from section 6(2) Prosecution of Offences Act 1985. Generally speaking, -the police will not be involved in these cases: the relevant office of the Industrial Tribunal will provide the evidence. CPS may, however, invite the police to conduct an investigation if appropriate.

Operational Arrangements have been agreed between the Service and the COlT. These arrangements will govern the procedure, as well as the documentation which the COlT will provide when referring a case to the Service. A pro-forma Information and witness statement should be used in all cases.

Where a case is received from the COlT, prosecutors should ensure that the Operational Arrangements have been complied with. The COlT should be contacted if further documentation or information is required.

The COlT accepts that the CPS has the right, and indeed the duty, not to prosecute cases which do not satisfy the evidential sufficiency or public interest criteria set out in the Code for Crown Prosecutors.

Policy Directorate should be advised of any points of procedural or legal interest arising out of such cases.

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Useful references

R v Stafford Justices ex parte Customs and Excise Commissioners (1991) 2 All ER 201 Archbold 1-254 Archbold 1-154-160 Relevant website: HSE: www.hse.gov.uk under 'Enforcement'. Comments Facility

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Annex 1 - Prosecutors Convention

A convention between prosecuting authorities to provide arrangements for ensuring effective co-ordination of decision making and handling in related cases which are the responsibility of different authorities

• Objective
• Principles
• Parties
• Schedule to the Prosecutors Convention

The prosecuting authorities which have become parties to this Convention hereby agree to pursue the objectives set out in paragraphs 1.1 and 1.2 of this Convention by applying wherever appropriate the principles set out in paragraph 2 to cases for which they are responsible.

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Objective

The objective of this initiative is to address the difficulties (in particular the uncertainties) that can occur where two or more prosecuting authorities propose to proceed against an individual or company for related offences and decisions are made and announced at differing times.

This memorandum establishes a Convention between prosecuting authorities by providing a structure to ensure a co-ordinated approach to the decision making process and wherever possible the timing of any joint public announcement of the final prosecution decision.

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Principles

To ensure proper co-ordination it is important that effective lines of communication are established at an early stage in the proceedings. Preliminary discussions should focus on the following issues:

• whether any prosecution can be jointly conducted; if not how best to co-ordinate related prosecutions;
• which agency will take lead responsibility for the prosecution;
  • the timing of proceedings;
  • mechanisms for sharing information;
  • arrangements for the retention and disclosure of material subject to any legal constraints; and
  • identifying and resolving any other case management issue.
• In circumstances where prosecution by more than one authority cannot be avoided or where an investigation results in a joint or related prosecution, there should be discussion between the agencies involved and a course of action should be agreed before an announcement is made to the media.
• Press Officers representing the agencies involved should co-ordinate an announcement of the prosecution decision and wherever possible issue a joint statement to the media.
• Each agency will identify by name a liaison officer. The liaison officer will be responsible for:
  • providing the initial point of contact for inter agency co-ordination purposes;
  • ensuring that there is an identified and accountable line of effective communication between each agency to include regular structured meetings;
  • monitoring compliance with the memorandum.
• Where considered desirable, signatories to this agreement may wish to develop separate protocols to address specific areas of overlap in working practice.
• Signatories will encourage, where appropriate, associated prosecuting authorities to abide by the spirit of this Convention.

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Parties

• The parties to this Convention are those prosecuting authorities who have adopted it by signing the attached Schedule.

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Schedule to the Prosecutors Convention

• Crown Prosecution Service
• Department of Trade and Industry
• Serious Fraud Office
• HM Customs and Excise
• Health and Safety Executive
• Department of Social Security
• Inland Revenue
• Environment Agency
• Ministry of Agriculture Fisheries and Food
• Intervention Board
• Bank of England
• Army Prosecuting Authority
• Royal Air Force Prosecuting Authority
• Royal Navy Prosecuting Authority
• Maritime and Coastguard Agency
• Occupational Pensions Regulatory Authority
• Civil Aviation Authority
• Relations with other prosecuting agencies

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Annex 2 - Protocol between CPS/HSE/ACPO

Work-related Deaths: A protocol for Liaison

• Foreword
• Introduction
• In what circumstances will this protocol apply?
  • Statement of intent
  • Initial action
  • Management of the investigation
  • Decision making
  • Disclosure of material
  • Special inquiries
  • Advice prior to charge
  • The decision to prosecute
  • The prosecution
  • H.M. Coroner
• National and regional liaison
  • National liaison
  • Local liaison
• A general guide to the enforcement of the Health and Safety at Work etc Act 1974 (HSWA) and related legislation
  • The Health and Safety Executive
  • Local authorities
  • Contacting the HSE out-of-hours
  • Contacting local authorities out-of-hours

Foreword

The first version of this protocol was introduced in 1998, and was signed by the police, the Health and Safety Executive and the Crown Prosecution Service. This is the second version, revised to extend our partnership to include Local Authorities through their representative body, the Local Government Association, and the British Transport Police, and to emphasise further the importance of working together to investigate thoroughly, and to prosecute appropriately, those responsible for work-related deaths in England and Wales.

We were pleased by the level of response to the public consultation exercises, which produced some excellent and extremely helpful suggestions. We are acutely conscious of the strength of public feeling about workplace fatalities, and how these tragic incidents devastate people's lives.

All five signatory organisations recognise the need for investigating authorities to talk to each other and to share information and best practice. We appreciate that people want to be confident that we are doing all that we can to co-ordinate our efforts and to co-operate with each other in the best interests of public safety and of those affected by work-related deaths.

We endorse this revised protocol. We believe that it provides an enhanced framework for liaison, and that its introduction will help ensure that all five signatory organisations work in partnership to deliver the high standard of professionalism that the public requires and deserves.

Sir David Phillips, Chief Constable, Association of Chief Police Officers Ian Johnston, Chief Constable, British Transport Police Sir David Calvert-Smith, Director of Public Prosecutions Crown Prosecution Service Timothy Walker, Director General, Health and Safety Executive Sir Brian Briscoe, Chair, The Local Government Association

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Introduction

This protocol has been agreed between the Health and Safety Executive (HSE), the Association of Chief Police Officers (ACPO), the British Transport Police, the Local Government Association and the Crown Prosecution Service (CPS). It sets out the principles for effective liaison between the parties in relation to work-related deaths in England and Wales, and is available to the public. In particular, it deals with incidents where, following a death, evidence indicates that a serious criminal offence other than a health and safety offence may have been committed. The protocol addresses issues concerning general liaison and is not intended to cover the operational practices of the signatories.

HSE, local authorities, the Police and the CPS have different roles and responsibilities in relation to a work-related death.

HSE and local authorities are responsible, under section 18 of the Health and Safety at Work etc. Act 1974 (HSWA), for making adequate arrangements for the enforcement of health and safety legislation with a view to securing the health, safety and welfare of workers and protecting others, principally the public. Each has specific areas of responsibility, further details of which are set out in Annex A of this protocol.

Please note that this protocol does not take into account co-operation and liaison with the Rail Accident Investigation Branch (RAIB), which, at the time this protocol was written, had not come into being. When the RAIB is introduced, it is envisaged that a separate protocol, or protocols, governing liaison between the RAIB and the signatory organisations will be developed.

There are other enforcing authorities that have responsibility for enforcing health and safety, or other similar legislation. Some of these are listed in Annex A. The Civil Aviation Authority and the Maritime and Coastguard Agency are not signatories to this protocol, but each has agreed to abide by the protocol's principles.

At present, only the police can investigate serious criminal offences (other than health and safety offences) such as manslaughter, and only the CPS can decide whether such a case will proceed. The police will also have an interest in establishing the circumstances surrounding a work-related death in order to assist the coroner's inquest.

Health and safety offences are usually prosecuted by HSE, the local authority or another enforcing authority in accordance with current enforcement policy. The CPS may also prosecute health and safety offences, but usually does so only when prosecuting other serious criminal offences, such as manslaughter, arising out of the same circumstances.

When making a decision whether to prosecute, the CPS, HSE, local authority or another enforcing authority will review the evidence according to the Code for Crown Prosecutors to decide if there is a realistic prospect of conviction and, if so, whether a prosecution is needed in the public interest. Local authorities that have signed up to the Enforcement Concordat must follow the principles and procedures within it.

The underlying principles of this protocol are as follows:

• an appropriate decision concerning prosecution will be made based on a sound investigation of the circumstances surrounding work-related deaths;

• the police will conduct an investigation where there is an indication of the commission of a serious criminal offence (other than a health and safety offence), and HSE, local authority or other enforcing authority will investigate health and safety offences. There will usually be a joint investigation, but on the rare occasions where this would not be appropriate, there will still be liaison and co-operation between the investigating parties;
• the decision to prosecute will be co-ordinated, and made without undue delay;
• the bereaved and witnesses will be kept suitably informed; and
• the parties to the protocol will maintain effective mechanisms for liaison;

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In what circumstances will this protocol apply?

For the purposes of this protocol, a work-related death is a fatality resulting from an incident arising out of, or in connection with, work. The principles set out in this protocol also apply to cases where the victim suffers injuries in such an incident that are so serious that there is a clear indication, according to medical opinion, of a strong likelihood of death.

There will be cases in which it is difficult to determine whether a death is work-related within the application of this protocol; for example, those arising out of some road traffic incidents, or in prisons or health care institutions, or following a gas leak. Each fatality must be considered individually, on its particular facts, according to organisational internal guidance, and a decision made as to whether it should be classed as a work-related death. In determining the question, the enforcing authorities will hold discussions and agree upon a conclusion without delay.

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Statement of intent

In the early stages of an investigation, whether any serious criminal offence has been committed is not always apparent. The parties to the protocol are committed to ensuring that any investigation into a work-related death is thorough and appropriate, and agree to work closely together in order to achieve this. Decisions in relation to who will lead the investigation, and the direction it will take, should be timely, informed by the best available evidence and technical expertise, and should take account of the wider public interest. Should there be any issue as to who is to be involved in investigating any work-related death, then the parties will work together to reach a conclusion.

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Initial action

A police officer attending an incident involving a work related death should arrange, according to the officer's own force procedures governing unexplained deaths, to:

• identify, secure, preserve and take control of the scene, and any other relevant place;
• supervise and record all activity;
• inform a senior supervisory officer;
• inquire whether the employer or other responsible person in control of the premises or activity has informed the Health and Safety Executive (HSE), the local authority or another investigating or enforcing authority; and
• contact and discuss the incident with HSE, local authority or another enforcing authority, and agree arrangements for controlling the scene, for considering access to others, and for other local handling procedures to ensure the safety of the public.

A police officer of supervisory rank should attend the scene and any other relevant place to assess the situation, review actions taken to date and assume responsibility for the investigation. Should any other investigating or enforcing authority have staff in attendance before the police arrive, it should ensure that the police have been called, and preserve the scene in accordance with the initial actions (above) until the police get there.

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Management of the investigation

Investigations should always be managed professionally, with communications between the signatory organisations continually maintained. Investigations should generally be jointly conducted, with one of the parties taking the lead, or primacy, as appropriate. An investigation may also require liaison with any other enforcing authority that may have an interest, and may include liaison with the Crown Prosecution Service (CPS).

Throughout the period of the investigation, the police and HSE, local authority or another enforcing authority should keep the progress of the investigation under review. Milestones should be agreed and monitored, and policy and key decisions recorded.

The police, HSE, local authority or another enforcing authority should agree upon:

• how resources are to be specifically used;
• how evidence is to be disclosed between the parties;
• how the interviewing of witnesses, the instruction of experts and the forensic examination of exhibits is to be co-ordinated;
• how, and to what extent, corporate or organisational failures should be investigated;
• a strategy for keeping the bereaved, witnesses, and other interested parties such as the coroner, informed of developments in the investigation; and
• a media strategy to take account of the sensitivities of the bereaved and those involved in the incident, and to encourage consistency of approach in reporting.

In certain large-scale investigations it may be beneficial to form a strategic liaison group to ensure effective inter-organisational communication, and to share relevant information and experiences.

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Decision making

Where the investigation gives rise to a suspicion that a serious criminal offence (other than a health and safety offence) may have caused the death, the police will assume primacy for the investigation and will work in partnership with HSE, local authority or another enforcing authority.

Where it becomes apparent during the investigation that there is insufficient evidence that a serious criminal offence (other than a health and safety offence) caused the death, the investigation should, by agreement, be taken over by HSE, local authority or another enforcing authority. Both parties should record such a decision in writing.

Where HSE, local authority or another enforcing authority is investigating the death, and new information is discovered which may assist the police in considering whether a serious criminal offence (other than a health and safety offence) has been committed, then the enforcing authority will pass that new information to the police. An enforcing authority inspector may do this, but it may also be from the enforcing authority's solicitors via the CPS. The police should then consider whether to resume primacy for the investigation. The decision and reasons should be recorded in writing.

There will also be rare occasions where as a result of the coroner's inquest, judicial review or other legal proceedings, further consideration of the evidence and surrounding facts may need to be made. Where this takes place the police, the enforcing authority with primacy for the investigation and the CPS will work in partnership to ensure an early decision. There may also be a need for further investigation.

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Disclosure of material

Disclosure must always follow the established law and procedure.

Where there has been an investigation, any material obtained should be shared, subject to any legal restrictions, between the police, HSE, local authority or another enforcing authority and the CPS. Special handling procedures may be necessary in certain cases. The organisation responsible for retaining the exhibits, documents and other relevant material should also be agreed upon.

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Special inquiries

In the case of some incidents, particularly those involving multiple fatalities, the Health and Safety Commission may, with the consent of the Secretary of State, direct that a public inquiry be held. Alternatively, the Commission may authorise HSE, or any other person, to investigate and produce a special report.

In such circumstances, the police will provide any necessary support and evidence to the person appointed to conduct the public inquiry, or to the special investigation, subject to the relevant regulations.

Complex legal issues may arise when there are parallel public inquiries and criminal investigations or prosecutions. The signatories will aim to keep inquiry chairs informed of the progress of the investigation.

Sometimes the report of a public inquiry may be delayed to await the conclusion of criminal proceedings, and on other occasions, there may be no such delay because of strong public interest in publishing the report and the recommendations of a public inquiry quickly. In either event, the signatories to the protocol will work together to ensure that the decision to prosecute is made as expeditiously as possible and any criminal proceedings commenced without delay.

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Advice prior to charge

Early liaison by the police, HSE, local authority or another enforcing authority with the CPS, is to be encouraged in the best interests of the investigation and prosecution process as a whole. There is no need to wait until a file is ready to be submitted before the police open discussions with the CPS. The police are encouraged, at any stage following a work-related death, to consult the CPS for advice, not only about the nature of any charges, but also as to the legal and evidential issues surrounding the investigation, including advice about expert evidence.

The police should seek the advice of the CPS before charging an individual with any serious criminal offence (other than a health and safety offence) arising out of a work-related death.

The police must consult the CPS Casework Directorate for advice when there is any consideration of charging a company or corporation with any serious criminal offence (other than a health and safety offence).

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The decision to prosecute

The decision to prosecute any serious criminal offence (other than a health and safety offence) arising out of the death will be taken by the CPS according to the Code for Crown Prosecutors. Such an offence may be prosecuted either with or without related health and safety offences. The decision will be made following discussion with the police, and, where appropriate, HSE, local authority or another enforcing authority.

There should be no undue delay in reaching the prosecution decision. If there is a delay, then the CPS will notify the police and the enforcing authority and explain the reasons for the delay, and will keep them informed of the progress of the decision making.

The CPS should always take into account the consequences for the bereaved of the decision whether or not to prosecute, and of any views expressed by them.

When the CPS has made its decision, it must be communicated to the police, HSE, local authority or another enforcing authority as soon as practicable, so that HSE, local authority or another enforcing authority can decide as expeditiously as possible whether to prosecute for health and safety offences if the CPS is not doing so.

Where HSE, local authority or another enforcing authority has primacy for the investigation, then the decision whether to prosecute for health and safety offences will be taken without undue delay. The relevant enforcing authority should then inform the police of its decision.

No prosecution decision will be made public until the bereaved, the Coroner's Office and any potential defendants have been notified according to the previously agreed strategy.

The public announcement of the decision will be made according to the agreed media strategy.

Where there is to be no CPS prosecution, the announcement of the CPS's decision shall include the fact that the decision of HSE, local authority or another enforcing authority will be made after the inquest (subject to paragraph 10.3, below). It is CPS policy to set out its reasons in writing and send them to the bereaved, and to offer to meet with them to discuss the reasons for reaching the decision.

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The prosecution

Where the CPS and HSE, local authority or another enforcing authority seek to prosecute offences arising out of the same incident, the prosecution(s) shall be initiated and managed jointly.

There should be an early conference attended by the CPS, the police and HSE, local authority or another enforcing authority to consider the management of the proceedings. In particular, the following issues should be discussed, agreed and recorded:

who will take lead responsibility for the prosecution;

• the nature and the wording of the charges (including, where appropriate, consideration of any alternative charges and acceptable pleas);
• arrangements for the retention and disclosure of material;
• a case management timetable;
• arrangements for keeping the bereaved and witnesses informed;
• the announcement of the decision;
• arrangements for maintaining contact during the prosecution, and an agreement as to a mechanism for consulting should an issue arise which results in the discontinuance of the proceedings or no evidence being offered;
• an agreement as to any specific instructions to the prosecuting advocate; and
• any other case management issues.

Where the CPS is prosecuting, and there is no prosecution by HSE, local authority or another enforcing authority, but an enforcing authority wishes to retain an interest in the case, the CPS will keep that enforcing authority informed of the progress and outcome of the case.

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H.M. Coroner

The police or the CPS will notify the coroner when a serious criminal offence arising out of a work-related death (other than a health and safety offence) has been charged. The coroner may then adjourn the inquest until the end of the criminal prosecution. The Director of Public Prosecutions may also ask the coroner to adjourn the inquest where there are certain proceedings before a magistrates' court that are related to a death.

Where the CPS is prosecuting, and HSE, local authority or another enforcing authority has submitted documents or a report to the coroner about a work-related death, the CPS and the police shall also be given a copy. Similarly, where an enforcing authority is prosecuting, and the police or CPS has submitted documents or a report to the coroner about a work-related death, the enforcing authority shall also be given a copy. In all cases, documents or reports may not be disclosed to any party without the consent of the party that originally submitted them.

Where the CPS has reviewed the case and decided not to prosecute, HSE, local authority or another enforcing authority will await the result of the coroner's inquest before charging any health and safety offences, unless to wait would prejudice the case. Where, following an inquest, public inquiry, judicial review or other legal proceedings, it is necessary for the CPS to review or re-review the case, HSE, local authority or other enforcing authority will wait until the review by the CPS has been completed before instigating or continuing its own proceedings.

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National and regional liaison

National liaison

The National Liaison Committee comprises representatives from the Police, BTP, the CPS, HSE and the Local Government Association. It will meet at least twice a year to review the operation of the protocol and consider the need for changes to the arrangements.

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Local liaison

The Regional Liaison Committees comprise representatives from the signatories, nominated at local levels. These committees will meet on a regular basis to discuss issues of mutual interest and concern, and in particular, the operation of the protocol from a local standpoint, to monitor the protocol's effectiveness, and to communicate any issues to the National Liaison Committee.

The Regional Liaison Committees will be responsible for ensuring that there is an identified and effective line of local communication between the three organizations.

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A general guide to the enforcement of the Health and Safety at Work etc Act 1974 (HSWA) and related legislation

Enforcement of the HSWA and the related legislation is generally shared between the Health & Safety Executive and local authorities. A general guide to the allocation of the main activity is detailed below. For more detailed guidance on allocation of specific activities or premises refer to HSE's website: www.hse.gov.uk/lau/lacs/23-15.htm

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The Health and Safety Executive

HSE is responsible for enforcing health and safety legislation in:

• Factories and other manufacturing, including motor vehicle repair
• Chemical plants and refineries
• Construction
• Railways, tram and underground systems
• Mines, quarries and landfill sites
• Farms, agriculture and forestry
• Hospitals, including nursing homes
• Local government, including their offices and facilities run by them
• Schools, colleges and universities
• Domestic gas installation, maintenance or repair
• Utilities, including power generation, water, and waste
• Fairgrounds (travelling or fixed)
• Airports (except terminal buildings, car parks and office buildings)
• Police and fire authorities; Crown, including Ministry of Defence
• Docks
• Nuclear installations
• Offshore gas and oil installations and associated activities, including pipe-laying barges, and diving support vessels
• Onshore major hazards, including pipelines, gas transmission and distribution
• Transport of dangerous goods by road and rail
• Manufacture, transport, handling and security of explosives
• Common parts of domestic premises
• Prisons

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Local authorities

In England and Wales, local authorities enforce the HSWA in respect of certain non-domestic premises, including:

• Shops and retailing, including market stalls, coin-operated launderettes, and mobile vendors
• Most office based activities
• Some wholesale and retail warehouses
• Hotels, guest houses, hostels, caravan and camping sites, restaurants, public houses and other licensed premises
• Leisure and entertainment, including night clubs, cinemas, social clubs, circuses, sports facilities, health clubs, gyms, riding schools, racecourses, pleasure boat hire, motor racing circuits, and museums, theatres, art galleries and exhibition centres
• Places of worship and undertakers
• Animal care, including zoos, livery stables and kennels
• Therapeutic and beauty services, including massage, saunas, solariums, tattooing, skin and body piercing, and hairdressing
• Residential care homes
• Privately run pre-school child care e.g. nurseries.

There are other authorities and agencies with responsibilities for the investigation and enforcement of HSWA and other similar legislation. These include, for example:

• The Fire Authorities
• The Maritime & Coastguard Agency (on board ships)
• The Care Standards Commission (health care premises)
• The Environment Agency
• The Civil Aviation Authority
• Trading Standards
• The Department of Trade and Industry (DTI)
• The Marine Accident Investigation Branch.

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Contacting the HSE out-of-hours

HSE is not an emergency service. It has produced guidance for police and other emergency service control rooms describing how to contact HSE inspectors out-of-hours.

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Contacting local authorities out-of-hours

There will be local arrangements in place for contacting the authorised Health & Safety inspectors within local authorities. Contact can usually be made through the local town hall or council offices during office hours and on an emergency number out of office hours.

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Annex 3 - Policy Group Circular No 156 of 1994- Handling Prosecutions with DSS Involvement

Intended audience/distribution: All CCP's for furtherer distribution by them as appropriate

Subject: Handling Prosecutions with DSS Involvement

Action required: Implementation

Action by: 1 October 1994

• Introduction
• Background
• Who should prosecute
• Factors indicating DSS prosecution
• Split cases
• Assignment
• Disclosure
• Procedure where DSS is proper prosecutor
• Other prosecuting agencies

Introduction

1. The existing policy on handling DSS Prosecutions was set out initially in the Practice and Procedure Manual at Paragraphs B.4 and H.7 and updated by Policy and Communications Group Circular Number 17 of 1991. A need to revise and update the Policy has become apparent, and this Circular sets out the current policy. It should be read in conjunction with National Operational Practice Service Standard on Handling Prosecutions with DSS Involvement, issued on the 9 September 1994.

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Background

2. Policy Group Circular 17 of 1991 was issued after the decision in R-v-Stafford Magistrates Court ex parte Commissioners of Customs and Excise [1991] 2 All ER 201 (R-v-Stafford Magistrates Court) and related to other prosecuting agencies; in general. Due to particular problems, it has become necessary to issue further guidance concerning prosecutions with DSS involvement.

3. R-v-Stafford Magistrates Court held that in determining whether proceedings had been instituted on behalf of a police force (and hence whether the CPS should have been the prosecutor, rather than the Customs and Excise), the charging process was neutral, and the determining factors were whether it was the police who have been the investigators, and arresting officers, who brought the defendant to the custody officer.

4. A difficulty has been experienced by the DSS in cases which the CPS has discontinued with a view to the DSS commencing fresh proceedings as the proper prosecutor, in that the DSS have then been unable to effect service of the new summonses (as there has no longer been an obligation on the defendant to attend court on a particular date). The benefit to the DSS in having the defendant charged by the police has then been lost, particularly in cases involving itinerant defendants.

5. There have been difficulties in some cases in which neither the CPS nor the DSS has accepted responsibility for the case at the first hearing. Policy and Communications Group Circular 17 of 1991 set out the agreement with the police whereby, in cases in which a police custody officer has charged a defendant on behalf of another prosecuting agency, the police should clearly mark the charge sheet with the idenity of the prosecutor and submit the papers directly to that agency.

6. There have been negotiations with the DSS as a result of which this policy guidance and complementary operational guidance have been agreed, and parallel guidance: is being issued by the DSS to its staff.

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Who should prosecute

7. When considering the proper policy and procedure in relation to cases with DISS involvement, the first question is always whether the case is properly prosecuted by the CPS or the DSS.

1. R-v-Stafford Magistrates Court is clear concerning cases in which the DSS has been the investigator throughout, and the only function of the police has been to oversee a search, effect an arrest and/or charge. Here the DSS is the prosecutor. There should be no question of CPS involvement at court or elsewhere, unless the papers have been incorrectly handed or sent to the CPS by the police, (see paragraphs 17.and 18.below).
2. Conversely, where the police have investigated, arrested and charged, the CPS is the proper prosecutor, and the papers should, and almost certainly always will, be sent to the CPS by the police.
3. However, there are many cases in which the situation is less clear. Both the DSS and the police may have investigated. There may be DSS offences and other offences. The police may have investigated and arrested for some offences, then discovered others in which they have involved the DSS.

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Factors indicating DSS prosecution

1. The majority of the investigation was conducted by DSS investigators;
2. The police were only involved in overseeing a search, effecting an arrest, or assisting DSS investigators in conducting an interview;
3. The DSS is in possession of all the main exhibits;
4. DSS investigators are named on the charge sheet as "the person accepting the charge" or the "officer in the case". (It may be necessary to check with the police whether these sections have been correctly completed.)

If any of the above factors apply, then it is likely that the case should be prosecuted by the DSS.

9. The fact that the bulk of the evidence is from DSS witnesses or that all of the offences are against the DSS or against DSS legislation is not conclusive. Such cases may still properly be prosecuted by the CPS if the police have had conduct of the majority of the investigation.

10. The gravity of the offences is not relevant to the question of who is the proper prosecutor.

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Split cases

11. Where the same defendant has some offences which have been primarily investigated by the police, and others which have been primarily investigated by the DSS, an agreement will need to be reached between the CPS and the DSS as to whether the offences should be split, and two separate cases pursued, or whether either the CPS or the DSS should conduct the whole prosecution.

12. In deciding whether cases should be split, the first question should be whether the offences could be tried together or be joined in the same Indictment (see Rule 9 of the Indictment Rules 1971). If the offences can appear on the same Indictment or could arguably be tried together at the magistrates' court, then it is normally undesirable to split the case. In such a case:

• If the majority of the offences are properly prosecuted by the CPS, then, with the agreement of the DSS, the CPS should take over the prosecution of the DSS offences under section 6(2) of the Prosecution of Offences Act 1985;

1. If the majority of the offences are properly prosecuted by the DSS, then, with agreement, the CPS may assign the remaining police offences to the DSS to prosecute under section 5(1) of the Prosecution of Offences Act 1985, e.g. where the bulk of the case involves deception against the DSS but the police have discovered some minor deceptions involving credit cards.

If having taken a decision to act under (a) or (b), the basis of the decision alters, e.g. because the balance alters as more evidence emerges, then the situation will need to be reviewed.

13. If the only nexus between the DSS and the CPS cases is the defendant himself, and the two offences or sets of offences could not be tried together, then there is no benefit in one agency taking over the whole prosecution. Separate prosecutions may proceed, although there should still be communication with the other prosecutor to make arrangements for joint remand hearings, and instruction of the same Counsel.

14. A decision to continue with the CPS prosecution may be affected by the existence of a DSS prosecution. If the defendant is convicted of DSS offences, the public interest may justify discontinuing less serious police offences.

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Assignment

15. Assignment under section 5(1) should ideally be confined to the type of case described h, paragraph 12(b) above. Cases assigned remain the responsibility of the CPS, and hence the duty of review does not cease. The CPS remains the principal and the DSS acts as its agent which means that the CPS is still liable for any failure to carry out the other duties of the prosecution, including disclosure. The DSS must contact the CPS in relation to all decisions to be made on the case throughout all its stages although they have day to day conduct.

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Disclosure

16. Disclosure problems may arise in split cases in which the CPS has retained conduct of the police case, but in which there is a separate DSS case conducted by the DSS. Even though the evidence would not support joinder of the offences, material may exist which has a bearing on the surrounding circumstances of the case. The prosecutor will have a duty to determine whether those documents are material within the definition in R -v- Keane as set out in paragraph C13.1 of the revised Operational Instructions issued on 8 August 1994. For example there may be unused material held by the DSS in their case which the CPS would have a duty to disclose to a different defendant in the CPS case. If it is thought that there may be material documents in the possession of the DSS the police should be asked to make enquiries to ascertain the existence of such material in the possession of the DSS. (Similarly, the DSS may need to disclose information in the possession of the CPS or police.)

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Procedure where DSS is proper prosecutor

17. In cases in which it is decided, following consultation and agreement between the CPS and the DSS, that the DSS is the proper prosecutor under R-v-Stafford Magistrates Court but the papers have been referred to the CPS by the police, the papers should be sent directly to the appropriate DSS office to the person who will have conduct of the case. Prosecutors will note that discontinuance is no longer considered to be appropriate, and nor is it appropriate to withdraw the charges. The police charges remain valid. The papers have simply been wrongly directed. If this arises at court, and there is no DSS prosecutor present (as there should be), the CPS prosecutor should explain the situation to the court and seek to contact the DSS office, or to obtain an adjournment, making it clear that the CPS does not have conduct of the case. If a point is reached at which, in the interests of justice, it becomes necessary to take the case over, e.g. because the DSS cannot be contacted and the court is minded to dismiss the charges for want of prosecution, then the ICPS prosecutor may do so under section 6(2) of the Prosecution of Offences Act 1985. However, this should only be done in an extreme case in which the offences are serious and custody is properly sought. It will have the effect of depriving the DSS of its right to prosecute, and assignment back to them under section 5(1) as our agent will then be necessary. Prosecutors will appreciate that this would be a cumbersome exercise.

18. There may be cases in which either the CPS or the DSS could arguably be the proper prosecutor, because both the police and the DSS have had a roughly equal part in the conduct of the investigation. In such cases, agreement should be reached between the police and the DSS at the police station, and if this proves difficult, the CPS should be consulted. This may necessitate the defendant being bailed under section 47(3) P ACE to return to the police station at a later date. If a decision is taken at the police station with which the CPS subsequently disagrees, there may have to be further discussion, and agreement reached on the future conduct of the case. The CPS, if the papers have been sent to it by the police, in such a case, should not discontinue or drop charges. If it is decided that the DSS is the proper prosecutor, then this should be explained to the court and the defence before the next hearing, at which the DSS will take over prosecution of the charges.

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Other prosecuting agencies

19. Similar considerations apply, of course, to other prosecuting agencies. R-v-Stafford Magistrates Court is of general application (and related, in fact to the Customs and Excise) .If there is doubt as to who is the proper prosecutor, or if it seems clear that the CPS is not the proper prosecutor and that the case should be transferred, consultation with the other prosecutor, the court and the police must take place: to ensure that cases are not jeopardised or defendants allowed to slip out of the system.

20. Paragraphs H.7.1 to H.7.4 and H.7.8 to H.7.10 of the Practice and Procedure Manual are superseded by this Circular. Policy and Communications Group Circular 17 of 1991 is also superseded.

Any policy queries regarding this Circular should be addressed to Caroline Monks, Prosecution Policy Division, Policy Group on 071-273 8327. Operational queries should be addressed to Chris Enzor, Operational Practice Division, Operations Group on 0904 456634.

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