Well, what a dreadful shame that somebody died and a technicality impeded justice. Have to agree with Walker's comments,

John

A simple formality ( the transfer) would have changed grey to black and white.
Even I know having an "opionion" on how the courts might react is not a great idea.
As a result justice was impeded.

Trouble is that the HSe acts as though it is never wrong and the attitude is becoming far more fixed. I personally think it is because they are influenced in their attitudes and behaviours by other DWP decision makers such as DLA, Jobseekers and Employment Support allowances and latterly the newfangled PIP. Departmental culture is a difficult nut to crack.

In this case they were clearly made aware of the issues but refused to listen to reason. Most other govt departments, in central and local govt, are as intransigent. Deliberately amending understandings to support their decisions. Rotherham certainly comes to mind but this too is heading for the "It was not us" response. It will be the "non person" who is not elected or an employee who will be accused and found guilty.

Bob

From my time with HSE many years ago I can comment that the question of whether HSE or a local authority (LA) is the enforcing body for some types of workplaces and activities was, and presumably still is, the subject of regular liaison meetings and correspondence between HSE and LA Environmental Health Departments. For example, vehicle tyre and exhaust fitting premises seemed to get 'shunted' between HSE and LAs because of debate as to whether their main function was i) selling tyres and exhaust boxes or ii) removing and replacing them as a specialised activity within the ambit of motor vehicle repair & maintenance.

The problem which forms the subject of this thread probably would not have occurred in Scotland. I understand that OS&H prosecutions there are generally conducted by the Crown Office and Procurator Fiscal Service (COPFS) irrespective of whether HSE or a LA has carried out an investigation and subsequently submitted a prosecution report. My understanding is partly based on my experience there of investigating for HSE a case of occupational poisoning at premises which were normally inspected by a LA. At the outset the LA readily agreed that an employment medical adviser and I could investigate because it didn't have the necessary knowledge and resources which we already had through HSE. Though this fact was almost certainly mentioned in the prosecution report I subsequently compiled, the procurator fiscal expressed no qualms about it, and neither did the lawyer who tendered a guilty plea on behalf of the accused company.

surely the company can still be prosecuted by the local authority as there is still a case to answer

It is an interesting situation and I am not going to speculate on whether the HSE had done the necessary liaison or not. Of course the whole matter of trials are something of a game to the barristers and one can't help but speculate that the defence deliberately played their card at an advanced point in the proceedings. I personally feel that this defence and in particular the timing, is bordering on perverse and 'cowardly', although I suppose most others would do the same if the situation arose.

2 things strike me.

1. The failure to proceed is a technicality and surely justice isn't best served. Does there need to be a change in the law to enable justice to be served in the public interests? i.e. in practical terms does it really matter who prosecutes?
2. Is there any reason why the prosecution cannot now proceed, either by the LA or by the HSE following the necessary arrangements for transfer of responsibility?

AAh the old ones are always the best ... ultra vires .... there will be much wringing of hands

(and if only inspectors still took their own cases it would be back to powers under s20 and the right to prosecute questions ..... I think there are a few people on here will understand that, Graham, Clairel and Peter Gotch? )

I did this to a City Council years ago.... our QC could not believe it and it took a while to convince him... the PR should have been HSE's, but the LA brought it and it was chucked out

As has been pointed out it is a very basic error and no prosecution report should ever be allowed to proceed if you do not have the power to prosecute..... bit like not having the evidence really and one of the principles that was beaten into me by nasty Principal Inspectors as they put red pen through my PR reports

As has been stated if there was humility then that would be fine but that seems a bit lacking in some departments at HSE currently....

Kind regards

Bruce

Bruce

Just like peter gotch I only worked for HSE in Scotland so never got to conduct any prosecutions as inspectors in England and Wales did.

In my view it was far better for experienced public prosecutors and their staff to do all the necessary legal work based on evidence and information collated and submitted to them as prosecution reports (PRs) by HSE. In view of the need to provide corroborative or mutually complementing evidence for Scottish courts, the work of preparing for and compiling a PR could take considerable time and effort. Also, there was a challenge to be relished in compiling PRs, including our own statements, in such a way that our bosses, the prosecutors and ultimately the judges could readily understand the circumstances involved despite their often complex technical nature. The prosecutors almost always agreed with HSE's requests to pursue prosecution. Also, from time to time our bosses would relay compliments from their bosses about the high standard of PRs from HSE.

Scottish public prosecutors also have the remit of coroner. For some reason HSE inspectors in Scotland could/can sit with prosecutors in court and directly ask questions of witnesses during inquests (fatal accident inquiries) regarding work-related deaths. From hazy memory I did this by prior arrangement at two inquests and guess it was to ask about particularly technical aspects because otherwise it would have made more sense for the prosecutor to do the asking.

Back to the main theme of this thread: I concur with canopener's thoughts at #12. If HSE, an LA or any other organisation such as the police investigates adverse circumstances and can gather sufficient evidence to demonstrate that the circumstances stemmed from a significant/material breach of the law, it really should not matter who prosecutes. In this respect there is some truth in the old Scottish saying "we do things differently and better north of the border"!

In response to Messy's comments at #17 about enforcement of fire precautions I understand that for premises where HSE is the OS&H enforcing body its inspectors normally only become involved with significant fire/explosion risks arising from work processes and/or flammable substances. Other aspects of fire safety are usually the province of the local fire & rescue service (FRS) and any concerns noted by HSE inspectors about them during their visits should be forwarded to the FRS.

However, I do know of a scenario in the past where HSE inspectors used the Health and Safety at Work Act 1974 (HSW74) to enforce fire precautions on behalf of a fire brigade. The geographical patch covered by the HSE team I joined as a trainee inspector in 1987 included a large sparsely populated region where the travelling times and distances between home and secondary school for some pupils were too great to allow daily travel. Therefore, the region's education authority accommodated them in pupil hostels during each school week. Some of the hostels comprised 1960s vintage purpose-built (CLASP-type?) two storey buildings with just one open central stairway. At the time the region's fire brigade were concerned about inadequate fire precautions in such buildings but had no enforcement power because the fire legislation available then did not apply to such premises. Therefore, an arrangement had been made between HSE, the brigade and the education authority's bosses and OS&H advisers for my colleagues to use, or at least threaten to use, enforcement notices under the HSW74 to ensure that the education authority made appropriate improvements in the hostels. It seemed that this arrangement proved effective and that most of the necessary improvements had been made by the time I joined the team. However I subsequently carried out a number of inspections of hostels located in other types of buildings which were of relatively less concern to the brigade. Even so, I recall that aspects of fire precautions and electrical safety regarding appliances brought from home by pupils were the main issues identified during such inspections.

Although my recollections of the details have become hazy after 35 years I don't think that the education authority ever objected to the above arrangement on the grounds that HSE was acting outside its powers (ultra vires) regarding fire matters on behalf of the brigade. There was general agreement that fairly urgent action needed to be taken regarding the type of hostel building described in order to protect the pupils and employees who lived in them.