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Slow progress

5th May 2011, Page 22
5th May 2011
Page 22
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Which of the following most accurately describes the problem?

Shortage of resources and the complexity of some cases mean that there can be lengthy delays between opening an investigation and coming before a court or public inquiry

Words: Roger Brown As recent cases in CM have demonstrated, long delays can occur between the start of an investigation and a case coming before a court or a public inquiry (PI).

Transport irms that are a danger to road safety may continue to operate for years before their case is heard, and commit offences in the absence of a judicial decision.

On the other hand, legitimate hauliers that have done nothing wrong may have to endure an anxious wait while an investigation is carried out.

The amount of management time devoted to the investigation can also be a drain on resources for the compliant operator. Most experts agree that cases due to go before the crown court tend to take longer than hearings set for a magistrates’ court or PI.

However, Tim Ridyard, solicitor at Woodines, says complex crown court cases involving fatal or serious accidents, or major tachograph falsiication offences, can often take an “enormous time” to process.

“After a fatal accident, the Health and Safety Executive [HSE] may take a long time even to get to the interview stage, and then all decisions are reviewed at a high level – this takes months and expert reports may have to be prepared,” he explains.

“Tacho investigations are very labour-intensive as an investigation of a leet involves large-scale analysis. There may be large numbers of drivers prosecuted and large numbers of offences.”

Collecting evidence

As a part of any investigation, witness evidence, expert evidence or tachograph download evidence needs to be gathered. The investigating oficer must decide who will be interviewed under caution and following this. The ile could sit on the desk of the oficer’s line manager, who will then make a decision as to what prosecutions to bring – if any. Vikki Woodine, senior solicitor at DWF, says she is currently working on an HSE investigation relating to a fatality in 2005, that is likely to be summoned this year but may not be heard in full until 2012.

She says: “The enforcement bodies will take the time that they need to properly investigate a matter and make a decision as to prosecution.

“There is nothing really that a defendant can do to speed up this process.” Woodine says if an operator can prove that the long delay may prejudice a fair trial – for example witnesses have died, moved abroad or disappeared – it is open to them to argue that there has been an abuse of process.

According to Lucy Wood, solicitor at Rothera Dowson, one reason why some cases take such a long time to reach court or a PI is lack of resources at the particular enforcement agency.

She says: “There are simply not enough people to be able to deal with the number of cases. This is not helpful to the operator or driver concerned, particularly if they are innocent.

“With PIs and court hearings, there are usually reports to be written up that can be very lengthy.

“Sometimes the availability of the vehicle and trafic examiners has to be ascertained, which could make it dificult to list the matter for a hearing.” Ridyard agrees that there is an issue of resources, and says it is “entirely normal” for vehicle examiners to present reports at hearings “long after any inspection took place” .

He adds: “I have just received a new PI job scheduled for the end of May – and a year to the day since the leet visit occurred.” Currently, under the agreed and published Work-Related Death Protocol (WRDP), various agencies such as the police, Crown Prosecution Service and coroner’s ofice must inish their proceedings before HSE is able to launch its prosecution case.

However, an HSE spokeswoman says the organisation always aims to bring its investigations to a conclusion “as swiftly as possible” . She adds: “Some health and safety investigations by their very nature will take a substantial length of time to complete, especially where there are a large number of witnesses to take statements from or forensic analysis is required because of machinery failure, for example.”

What VOSA has to say about it

VOSA tells CM it is “always looking at ways and methods of speeding investigations up and implement new measures when appropriate” .

A spokesman says: “Often the legal teams – both defence and prosecution – request adjournments and these can be for many reasons.

“When all this has been done trial dates have to be set for the appropriate amount of time and these have to it around the trial judge and his work commitments.” However, Ridyard believes that whatever the outcome of the case, an operator has the best chance of success if it uses the period between the start of the investigation and the trial to make sure it is fully compliant.

He adds: “My view is that, if there is long delay, the operator should use the period to get itself into proper shape so that if it is found guilty or pleads guilty it can demonstrate what it has done.” ■


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