Previous evidence of misconduct could be used to help prove a new set of charges brought against a company. Annie Johnston and Mike Appleby explain how organisations can avoid the legal pitfalls surrounding bad-character evidence.
When prosecuting health and safety offences at trial inspectors may wish to refer to a defendant’s antecedents as evidence of ‘bad character’, the HSE’s Enforcement Guide explains.1
The document defines ‘antecedents’ as the “history and record of the defendant”. It instructs inspectors to search for any previous convictions and any enforcement action taken against the defendant, whether formal or informal, to be used in proving the case. This raises the questions of how can evidence of bad character be deployed in a health and safety prosecution of a company, and whether its application to regulatory offences is really appropriate?
Currently, there is no guidance from the Court of Appeal on the application of bad-character evidence in health and safety prosecutions. The guidance that does exist comes from mainstream criminal cases.
The rules on bad character
The rules on bad-character evidence are contained in sections 98 to 113 of the Criminal Justice Act 2003 (CJA).
The Act defines ‘bad character’ as evidence of, or a disposition towards, misconduct by the defendant, other than the evidence concerning the charge the defendant is currently facing. ‘Misconduct’, according to the CJA, means the commission of an offence, or other “reprehensible behaviour”. Bad character is therefore all about the personal characteristics of the defendant.
The CJA lays down a number of circumstances in which this type of evidence is ‘admissible’ (i.e. can be relied upon) at trial. These are known as ‘gateways’ and are as follows:
1 All parties to the proceedings agree to the evidence being admissible;
2 The evidence is adduced by the defendant himself, or is given in answer to a question asked by him in cross-examination and he intended to elicit it;
3 It is important explanatory evidence;
4 It is relevant to an important matter in issue between the defendant and the prosecution;
5 It is evidence to correct a false impression given by the defendant; or
6 The defendant has made an attack on another person’s character.
To be admissible, the evidence must be ‘relevant’ and ‘important’. The prosecution has no absolute right to have the evidence admitted, and the defendant can apply to the court to have the evidence excluded on the grounds it would make the proceedings unfair. In the case of O’Brien,2 Lord Phillips said that, to be admissible, the evidence must have an “enhanced probative value”.
The most common gateways to be relied on by the HSE in a prosecution are 3 and 4 above. Gateway 3 concerns evidence without which the jury would find it impossible, or difficult to understand properly other evidence in the case, and the value of this evidence substantially helps the understanding of the case as a whole.
In relation to gateway 4, the issue is likely to be whether the defendant has a “propensity to commit the offence”. This will usually be the route relied upon by a prosecutor for admitting as evidence the fact that the defendant has previous convictions — but the convictions have to be of the same type.
What might constitute bad character?
The most likely evidence of bad character to be adduced will relate to previous convictions. Most prosecutions of companies are pursuant to sections 2 and 3 of the Health and Safety at Work, etc. Act 1974 (HSWA). However, this does not mean that only convictions under the HSWA would be relevant to future prosecutions under that Act against a defendant. For example, a conviction for failing to carry out an adequate risk assessment pursuant to regulation 3 of the Management of Health and Safety at Work Regulations 1999 may be relevant to a prosecution under the HSWA.
Relevant Prohibition and Improvement Notices could also be relied on as evidence of bad character. Plus, in appropriate circumstances, the prosecution might rely on previous warning letters to the company, even in cases where the HSE decided not to take enforcement action.
In the case of R v Ngyuen,3 the Court of Appeal ruled that the fact the prosecution chose to rely on bad-character evidence, which had not been the subject of a criminal charge, could not, in itself, have such an adverse effect on the fairness of the trial that the court ought to dismiss the evidence.
Should bad-character evidence apply to health and safety cases?
Sections 2 and 3 of the HSWA require employers to ensure the health and safety of their employees and non-employees affected by its business, so far as is reasonably practicable.
Once the prosecution has proved there has been an exposure to a health and safety risk, it is for the employer to prove that it took all reasonably practicable steps to control the risk. In R v British Steel plc,4 the Court of Appeal said section 3 of the HSWA (and the same applies to section 2) imposes absolute liability on an employer, subject only to the defence of reasonable practicability.
Most breaches of the HSWA occur because of an omission by an employer, not a commission. In other words, a company can be guilty of a breach under the Act without taking a decision to run a health and safety risk.
There must, therefore, be a question mark over whether such regulatory breaches constitute bad character in the sense outlined in the legislation. Arguably, they would fail the test of reprehensible behaviour, not least because many such breaches do not require for the purpose of conviction any aspect of ‘moral blame worthiness’ as envisaged by the CJA.
The bad-character provisions presuppose a mental element to character — the legislation uses phases like ‘propensity to commit’, ‘disposition’, ‘reprehensible behaviour’, all of which, at the very least, imply a conscious or considered action on the part of the accused. It is therefore difficult to see how this language can be reconciled with a regulatory offence that requires no considered pre-meditated or specifically intended act.
The use of the word ‘character’ could be considered a give-away, because ‘character’ means that which the accused is disposed to do by virtue of the person they are, as opposed to simply relating to the consequence of a state of circumstances.
For instance, bad character by its very nature says something about the individual and their personality. It therefore seems incongruous to argue a defendant has a propensity to commit an offence where that offence concerns an absolute liability, and does not require evidence of the defendant’s mental state to obtain conviction.
It is also worth noting the case of HSE v Janway Davies,5 where the Court of Appeal observed that health and safety breaches “may be newsworthy in some cases, but the moral obloquy (detraction) is not the same as that involved in truly criminal offences”. If health and safety offences are not “truly criminal offences” then the aims of the bad-character provisions seem to sit uncomfortably with them.
Can organisations have bad character?
A company may have a legal personality but can it have a character? How is it supposed that a company could ever have a disposition to do anything, or act in a morally-reprehensible fashion? The legal personality of a company is ultimately no more than a legal fiction created for wholly commercial purposes, which have nothing whatsoever to do with the concept of the criminal mind. A company’s legal entity continues to exist, irrespective of who the controlling officers are.
This poses an interesting conundrum: what happens when a company run by one set of directors is convicted of health and safety offences, and is then taken over by another set of directors, who vastly improve health and safety but still find themselves facing a prosecution at some point in the future?
Is it fair for the actions of one board to taint the actions of its successors through concepts such as ‘character’? Once again, this appears to be at odds with the workings of the bad-character provisions.
Another issue concerning large corporations is that, by their very size, it would be surprising if, from time to time, they were not convicted for health and safety breaches.
In the case of R v Anglian Water Services Limited,6 which saw the defendant sentenced for a breach of section 85(3) of the Water Resources Act 1991 (a strict-liability offence), the Court of Appeal stated: “The appellant’s 65 previous convictions stretching over the period from November 1990 to February 2002 have to be seen in context. . . The number of previous convictions is not of great significance when seen in the light of the ambit (scope) of the appellant’s operation.”
If the number of convictions borne by a large company is irrelevant to sentencing, it is difficult to argue they should be relevant as bad-character evidence in the trial of the company.
How should companies respond to enforcement action?
What is clear is that the bad-character provisions were not conceived with offences such as sections 2 and 3 of the HSWA in mind. They are also clearly aimed at individuals and not companies. Until there is guidance from the Court of Appeal, it is difficult to predict if and how these provisions will be applied to the health and safety arena.
It is possible that the Court of Appeal would not want to bar the HSE from relying on such provisions where a company is continually the subject of enforcement action — whether by prosecution or notice. However, it is likely to be concerned that the ambit of their application is not too wide.
In the meantime, companies should proceed on the basis that the provisions under the CJA on bad character are applicable, and they should consider carefully their response to any enforcement action.
There has been a lot of debate on whether or not fixed-penalty notices or cautions should be accepted as evidence of bad character in cases of mainstream crimes. A defendant may accept one of these rather than take the risk of going to court and disputing the facts alleged by the prosecution.
In health and safety cases, a similar situation arises with Improvement and Prohibition Notices. Should a company that decides to comply with a notice nonetheless consider appealing it, in case it is deemed as accepting there was an exposure to risk that was not adequately controlled? How might this play in a future prosecution, where the material risk of the notice is central to the alleged offence?
Corporate manslaughter prosecutions
It should not be forgotten that previous convictions might also be used in respect of a prosecution under the Corporate Manslaughter and Corporate Homicide Act 2007. Therefore, it is crucial that when a company pleads guilty to a health and safety offence, it gives very careful consideration to any basis of plea it agrees with the prosecution.
If the basis of plea cannot be agreed, then a Newton hearing may be required. This process consists of a mini-trial to determine the level of the defendant’s guilt.
Ultimately, organisations must understand that any basis of plea that does not accurately reflect the true nature of the particulars of the offence may, in a later case, come back to haunt the company in the guise of bad-character evidence.
References
1 HSE Enforcement Guide (England and Wales), www.hse.gov.uk/enforce
/enforcementguide
2 R v O’Brien [2005] 2AC 534
3 R v Ngyuen [2008] WLR (D) 94
4 R v British Steel plc [1995] 1 WLR 1356
5 HSE v Janway Davies [2003] ICR 583
6 R v Anglian Water Services Limited [2003] EWCA Crim 2243
Annie Johnston is a barrister, and Mike Appleby is a solicitor at Housemans and SHP’s regular In Court Analysis columnist.
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