Notices of Contravention served by the Health and Safety Executive (HSE) can, in certain circumstances, be admitted as evidence of bad character, the Court of Appeal (CA) has ruled.
A previous Notice of Contravention or Prohibition Notice could potentially be considered evidence of "reprehensible behaviour", the HSE v Evergreen Construction UK Ltd ruling stated, if its content and any subsequent correspondence with the regulator reflect the current proceedings. Bad character can be evidenced by "reprehensible behaviour" as well as previous convictions, as per the Criminal Justice Act 2003. As a result, a Notice of Contravention can be used to establish a "propensity to commit offences of the kind" that a defendant currently faces.
It was in part on this basis that the CA rejected Evergreen's appeal, in February 2023, and upheld the conviction of the defendant for breaches of health and safety law relating to working at height. A contractor had died after a pack of toughened glass, being unloaded from a lorry, had fallen on top of him.
It transpired during the trial that Evergreen had previously been issued with two Prohibition Notices and two Notices of Contravention, all of which concerned the risk of a fall from height, in relation to two other sites.
Prohibition notices, served by the HSE when there is believed to be an active risk of serious personal injury, represent formal enforcement action taken under statutory powers. Notices of Contravention do not represent formal enforcement action, but enable the HSE to flag health and safety breaches and to recover its costs after making site visits.
In summing up, the CA judges stressed that such notices will not always imply bad character, but that in this case the response of the defendant showed the notices to be more than simply one inspector's opinion. Correspondence between the defendant and the HSE showed that Evergreen accepted errors had been made and declared an intention to put matters right.
This case highlights why businesses need to take a Notice of Contravention received from the HSE seriously, regardless of whether or not it represents formal enforcement action. The wording of the notice and any response to the HSE should be considered very carefully.
Even if a decision is taken not to contest the Notice of Contravention formally (through the very limited process available), if a business disagrees with the scope of failings outlined that disagreement should be notified to the HSE. In the event of the HSE seeking to rely on the Notice of Contravention in any subsequent trial, evidence that a duty holder did not accept the allegations made will strengthen any arguments to exclude the Notice of Contravention from evidence.
This article is part of Womble Bond Dickinson’s Growing Global series. For more insights, click here to visit our Growing Global hub.