Newsletters Criminal Regulatory 5th Oct 2022


NS, the sole director of SA Limited, was charged with Gross Negligence Manslaughter. It was the prosecution’s case that SA had failed to take any measures to mitigate the risks associated with work at height, and that NS had failed to act when he had witnessed first-hand work being undertaken in circumstances that posed a serious and obvious risk of death. Plainly, NS and SA were separate legal entities; however, for all practical purposes they were one and the same.

The prosecution had served as unused material evidence of an Enforcement Notice served on SA four years prior to the events giving rise to the allegation of Gross Negligence Manslaughter. NS was the sole director of SA at the time. The notice related to work at height and the absence of any control measures. It was not appealed.

NS adduced at trial evidence of his convictions for relatively minor (and irrelevant) offences committed over 30 years ago and in due course sought to persuade the trial judge to treat him as a man of “effective good character” and to give both limbs of the good character direction. The judge declined to do so, in light of the earlier enforcement notice against a company in respect of which NS had sole and complete control. Whilst not expressed in these terms, it was apparent that the court treated the enforcement notice as bad character evidence as against NS.

In the event, NS was acquitted of manslaughter and it was therefore unnecessary to consider pursuing the matter further. However, this is an issue that is likely to arise in future cases and therefore warrants further consideration.

In Hunter and Others[1] the Court of Appeal conducted a thorough review of the case law and  identified the following categories of case relating to effective good character:

  1. effective good character: where a defendant has previous convictions or cautions which are old, minor and have no relevance to the charge, the judge must make a judgment as to whether or not to treat the defendant as a person of effective good character, by assessing all the known circumstances of the offence(s) and the offender and then deciding what fairness to all dictates, ensuring that only those defendants who merit an “effective good character” are afforded one;
  2. where a defendant adduces evidence of previous convictions or cautions which are not in the same category as the offence alleged, in the hope of obtaining a good character direction on propensity, he has no entitlement to either limb of the direction; it is a matter for the discretion of the judge, who will decide whether to give any part of the direction and, if so, on what terms in accordance with what fairness dictates.

Where enforcement notices arise from the same facts that give rise to the prosecution then they may well be relevant to issues in the case. But the enforcement notices are not bad character evidence, but rather are to do with the facts of the underlying offence. If they have not been adduced by the prosecution pursuant to section 98 of the Criminal Justice Act 2003 then they ought not operate so as to deprive a defendant of his entitlement to a modified good character direction.

The author is not aware of any reported authority dealing specifically with the admissibility of enforcement notices as a species of bad character evidence, but there are judgments that establish analogous principles.

In McKenzie [2]  the Court of Appeal held that where the defendant had not been convicted of an offence, the bar to the admission of related evidence is correspondingly high, and applications to adduce that evidence should be ‘approached with considerable caution’ and ‘the judge may also have to consider whether the admission of the evidence would result in the trial becoming unnecessarily and undesirably complex even if not unfair.

Of note is a clear line of authority that Fixed Penalty Notices issued by prosecuting authorities are not admissible as evidence of bad character precisely because they are issued unilaterally and involve no admission of guilt. In Hamer [3] the Court of Appeal held:

  1. the issue of a notice is not a conviction. It is not an admission of guilt nor any proof that a crime has been committed. The scheme of the [2003] Act makes that clear. Any person reading the form would plainly understand that it is not to be regarded as a conviction and will not be held against him save in the respect mentioned. It seems therefore clear, both as a matter of the statutory scheme and as a matter of what a person accepting such a notice would reasonably be led to believe, that he was not admitting any offence, not admitting any criminality, and would not have any stain imputed to his character;
  2. the penalty notice was not admissible as an admission of an offence which would affect the appellant’s good character. It did not impugn the good character of the appellant and had no effect on his entitlement to a good character direction. In short, it was irrelevant, and it should not have been admitted.

In Gore and Maher[4] the Lord Chief Justice had to consider the legal effect of Fixed Penalty Notices for public order offences in the context of an appeal against conviction where there had been a prosecution arising from the same facts that gave rise to the notices. At [11] the LCJ said this: ‘Payment of the penalty involves no admission of guilt on the part of the person to whom it is given, nor does it create a criminal record. These are important limitations.’ Precisely the same logic was applied in Dalby (Louis)[5], to a warning against harassment. Again, the warning involved no admission of guilt, despite the circumstances in which it was issued, and so it simply could not be relied upon to establish propensity.

The judgment in Gore and Maher was approved in Olu[6]. A group of men were charged with attacking another group with knives. On an application by the prosecution the trial judge ruled that evidence of a defendant’s acceptance of a caution for possession of a knife two years earlier – which included an admission that the offence had occurred – was admissible as showing a propensity to commit offences of the kind charged. The trial judge accepted that the defendant could challenge the admission and directed the jury that it was for them to decide whether the defendant was guilty of the previous offence and, if so, whether it established a tendency to possess a knife in a public place. The Court of Appeal took a different view and held that cautions, which do include an admission of guilt, should only be admitted as evidence of bad character in very limited circumstances:

At [72]: ‘We accept the submission that there is a very considerable difference not only between a caution and a conviction for the reasons given in the authorities…but there is also a very considerable difference between an admission contained in a caution without legal advice having been given and an admission made in a caution after legal advice or before a court by a plea.

Enforcement Notices issued by the HSE do not establish guilt of a criminal offence; there is no prosecution, conviction or caution. A business will often comply with an Enforcement Notices without taking legal advice, as a matter of commercial expedience. There is then no proven evidence of misconduct or the evidence of the misconduct is weak, even where the notice was not challenged and is complied with.

In cases of gross negligence manslaughter the character of the defendant is of vital importance and a review of the authorities would suggest that a court should be slow to deny a good character direction on the basis that the defendant (or a company over which he had sole and complete control) had previously been served with an enforcement notice.


James Buchanan


[1] Hunter & Ors [2015] EWCA Crim 631

[2] McKenzie [2008] EWCA Crim 758

[3] Hamer [2010] EWCA 2053

[4] Gore and Maher [2009] EWCA 1424

[5] Dalby (Louis) [2012] EWCA Crim 701

[6] Olu [2010] EWCA Crim 2975

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