06/04/2016
In Part 1 we explained what Fee for Intervention (FFI) is, the controversy surrounding it and how it can affect businesses. In Part 2 we explained the process for challenging FFI. This week in Part 3 we explain what you can learn from the information provided to a dutyholder through FFI about HSE’s views on the case and the scope of its investigation.
Notification of Contravention
Before HSE can charge under the Fee For Intervention regime the inspector must notify the dutyholder that there has been a material breach of health and safety legislation. This will usually be by a notification of contravention or a notification of contravention served with an improvement/prohibition notice.
Before Fee For Intervention a company would not know what breaches of legislation were being considered by HSE and perhaps what issues HSE saw as key until a request was made by HSE for a representative of the company to be interviewed under caution. Even if an enforcement notice was served in the early stages of the investigation, at best, the company would learn the alleged breaches of legislation.
HSE has three templates for a notification of contravention. Most common is the notification of contravention letter with stock paragraphs. In the letter Appendix 1 will set out the alleged breaches of health and safety legislation and under each breach the inspector will set out their reasons for their opinion that a material breach has occurred. Because the inspector effectively has to justify their opinion of a material breach the information provided can be quite detailed. This can not only reveal the outline of the case against the company but may also give an indication of the extent of the evidence the inspector has gathered.
Invoices
The invoices contain a breakdown of the work undertaken by HSE which is often quite detailed. Information that might be gleaned includes:
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When inspectors undertook investigation work and the nature of that work
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Work undertaken by specialist inspectors including the writing of reports
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Whether other experts have been engaged
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Whether requests have been made to third parties for documentation.
This can be helpful in informing lines of enquiry to be made, considering the types of experts that may need to be retained and the classes of documents that be contained in the unused material if there is a prosecution.
Why is this information useful?
Such insight can be extremely useful in a company’s preparations. This is important because of the changing landscape:
(i) The growing pressure for criminal cases to be expedited through the courts;
(ii) the new health and safety sentencing guidelines which mean much higher fines in the future and
(iii) the current proposals for the tightening of the rules for early guilty pleas with a steeper drop in percentage reduction the nearer the plea is entered to trial.
Therefore the more preparation that can be undertaken by the company’s defence legal team in the early stages of an investigation the better placed the company will be if proceedings are instigated in deciding on whether to plead guilty or defend and if the latter being able to take a proactive rather than a reactive approach to its defence.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. We provide tailored advice and emergency response for health and safety matters occurring in these industries. If you would like to discuss any points raised in this article, please phone us on 0207 993 6960.