Particularising the indictment in a criminal regulatory prosecution: the law and consequences
When faced with a criminal regulatory prosecution, as with any criminal prosecution, the indictment is the most important document in the case; but what should be contained within it and what are the possible ramifications of the introduction of particulars of the offence? This topic deserves further exploration but what follows is an introduction to the key topic and case law.
The Criminal Procedure Rules part 10.2 provides under the heading ‘The indictment: general rules’
— The indictment on which the defendant is arraigned under rule 3.32 (Arraigning the defendant on the indictment) must be in writing and must contain, in a paragraph called a ‘count’—
(a) a statement of the offence charged that—
- describes the offence in ordinary language, and
- identifies any legislation that creates it; and
(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.
It has been clear since R v Chargot  1 WLR 1, quoting the Scottish case of Adamson v Procurator Fiscal, Lanark (unreported) 31 October 2000, that where a prosecution is brought under section 2 or section 3 of the HSWA 1974, the particulars of the indictment need ”as a matter of fair notice, to specify [in the charge] the particular operation said to give rise to the risk.” In Chargot, that requirement was satisfied by the statement in the particulars of offence that the risks to the employees’ health and safety at work were in relation to the driving or use of dumper trucks. Chargot was also clear that one of the purposes of particulars is to ensure that the defendant knows what case they must meet, but as to detail the Court concluded: “Here again the test of how much detail need be given is that of fair notice”.
Referring to In R v Board of Trustees of the Science Museum  1 WLR 1171 the Court in Chargot recognised that the prosecution in that case could simply have proved the presence of bacteria in sufficient quantities in the air conditioning system to expose others to risks to their health and safety. As it happens the particulars of the offence set out in the indictment specified three failures with respect to the air conditioning system at the museum whereby members of the public were exposed to risks to their health from exposure to the bacteria: a failure to institute and maintain a regime of regular cleansing and disinfection, a failure to maintain in operation an efficient chemical water treatment regime and a failure to monitor its efficiency. Lord Hope in Chargot concluded that where the prosecution would lead evidence about particular defects in the defendant’s systems which gave rise to the risks to health and safety then fairness demanded that they were included in the particulars:
“25…It would have been sufficient for the prosecution to prove the presence of bacteria in sufficient quantities in the air conditioning system to expose the public to risks to their health and safety. But where defects in the employer’s plant or systems of work giving rise to those risks have been identified the case for the prosecution may well be strengthened by the leading of that evidence. Even in cases where injury or death has resulted, investigations following the accident may not have disclosed the exact cause of it. Proof of its cause will focus attention on the particular aspect of the employer’s undertaking that gave rise to the risk. If the prosecution chooses to take this course, fair notice of its case must be given. Details must then be given in the particulars.”
Lord Hope, in Chargot, although not explicit, appeared satisfied in that case that the provision of a case summary outlining a series of alleged failures amounted to fair notice and did not require the indictment to be particularised. There is a clear tension between this and the penultimate sentences of paragraph 25 above.
Ultimately, however, in a prosecution under sections 2 and 3 HSWA 1974 very little in the way of particulars are required because whatever the prosecution alleges, the House of Lords in Chargot was clear that “What sections 2(1) and 3(1) prescribe is the result that is to be achieved or prevented [ensuring others not exposed to risks to their health and safety], not any particular way or ways of achieving this.”
For prosecutions of officers of a company pursuant to section 37, however, different considerations apply. Assuming the body corporate is guilty of the offence under section 2, for example, then there are some additional facts and circumstances that must be established to fix liability to the officer. The offence which section 37 creates is not an absolute offence. The officer commits an offence under this section only if the body corporate committed it with his consent or connivance or its commission was attributable to any neglect on his part. These are things relating to his state of mind that must be proved against him. Lord Hope in Chargot said:
“33. Here too the circumstances will vary from case to case. So no fixed rule can be laid down as to what the prosecution must identify and prove in order to establish that the officer’s state of mind was such as to amount to consent, connivance or neglect. In some cases, as where the officer’s place of activity was remote from the workplace or what was done there was not under his immediate direction and control, this may require the leading of quite detailed evidence of which fair notice may have to be given.”
The same is also true of an offence under section 7 of the HSWA 1974 which must be appropriately particularised. Critical to that requirement for particulars are the terms of section 7 of the Act, which are “strikingly different” (according to Lord Brown in Chargot) from sections 2 and 3. Section 7 provides:
“It shall be the duty of every employee while at work
(a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work…”
Consequences of particularising the indictment
As a general rule of thumb there are advantages to forcing the prosecution to pin their colours to the mast and it is difficult to contend that the prosecution suffer any prejudice from being made to do so. Not only does it allow the defendant to know precisely what case must be met but it may perhaps rein in the more exuberant prosecutor or expert who, in the course of evidence, may seek to extend the case against the defendant. Additionally, it avoids the danger of a general impression of insufficiency devoid of details being portrayed to the jury; and encourages a closer examination of the particular areas the prosecution seeks to establish. This may be particularly valuable in cases where an officer’s defence is that they were not in charge or aware of certain failures by the body corporate.
Moreover, Lord Brown in Chargot made clear that the prosecution must particularise an allegation of a breach or breaches of a duty to take reasonable care (for example):
“44. Obviously an alleged breach of duty to take reasonable care must be specified and proved …”
In those circumstances it is perfectly conceivable that the prosecution might fail to produce sufficient evidence to establish a prima facie case in relation to one or more of the particulars of the beach of duty. In the absence of the particularisation the general mass of complaints and criticisms would be left to the jury. If, however, the count is particularised, the Court can be invited in a quasi submission of no case to answer to withdraw certain particulars from the jury’s consideration. If the Court does not do so then the conviction may be unsafe if the Court of Appeal can be persuaded (in the absence of a special verdict) that those matters ought to have been withdrawn from the jury’s consideration and therefore the conviction may have been based on a particular about which there was insufficient evidence.
The ‘Brown’ Direction (R. v Brown (Kevin) (1984) 1 B.C.C. 98970,  12 WLUK 32)
Even more significantly, particulars gives rise to the possibility of a Brown direction to the effect that the jury can only convict if they are unanimous as to which of the particulars have been proven. Whilst Brown directions are generally rare, they may properly be more common in the criminal regulatory sphere.
In R v Beckingham  EWCA Crim 773 the Court of Appeal was concerned with an offence under section 7 of the HSWA 1974 – ‘breach of the duty to take reasonable care’. The case was brought against Ms Beckingham, an individual employed by a local authority who had responsibility for the maintenance of council buildings. Her duties included negotiating and entering into maintenance contracts for the air conditioning and ancillary equipment in a building which was at the centre of an outbreak of Legionnaire’s disease which led to the death of seven people.
The Court of Appeal allowed the appeal against her conviction of an offence contrary to section 7 on the basis that:
“20…As it seems to us, having regard to the way in which this case was presented by the prosecution, it was incumbent on the judge specifically to direct the jury that they must unanimously be sure that one or more of the particulars relied on as supporting the offence was made out and that this gave rise to a breach of duty under section 7.”
“21. In the absence of such a direction, we cannot be sure that the jury’s verdict on count 9 would necessarily have been the same. We say this because it is not possible to say, in the light of the directions which the judge gave and did not give, by which route the jury reached their verdict or whether they were unanimous on any of the ten particulars on which the count depended.”
Lord Brown in Chargot stated of the decision of Rose LJ in Beckingham: “44. Obviously an alleged breach of duty to take reasonable care must be specified and proved and in this context it is understandable that a Brown direction is required.”
The Court of Appeal in R v Chilvers  EWCA Crim 1311 (a case alleging coercive and controlling behaviour where various aspects of the defendant’s behaviour to his then partner were particularised) sought to discern from a review of the case law the circumstances in which a Brown direction is required. The case of Beckingham does not appear to have been cited to, or considered by, the Court (nor was the decision of the House of Lords in Chargot). In Chilvers the Court held that the jury’s task had been to evaluate all the behaviour in question and decide whether it was controlling or coercive; they did not need to be agreed on the parts of the evidence which led them to conclude that the actus reus of the offence was made out. A Brown direction was to the effect that, when a number of matters were specified in a charge as together constituting one ingredient of the offence, and any one of them was capable of doing so, then it was enough in order to establish the ingredient that any one of them was proved, but it must be proved to the satisfaction of the whole jury. It was confined to those cases where there was an appreciable danger that, in deciding whether they were agreed on the matter that constituted the relevant ingredient, some of the jury might convict having found a particular matter proved as constituting the ingredient while others might find a wholly different matter proved as constituting the ingredient. When the factual bases of the crime charged were, in reality, “individually coterminous” with an essential element or ingredient of the offence, then a Brown direction should be given.
Consider a case where a defendant is charged with failing to produce a suitable and sufficient risk assessment [for example as required by section 3 of the Management of Health and Safety at Work Regulations 1999 or Article 9 of the Regulatory Reform (Fire Safety Order) 2006] and the particulars set out the commissions or omissions which the prosecution suggest make the risk assessment insufficient. In those circumstances it would appear that the case is aligned with R v Beckingham and the jury ought to receive a Brown direction. The question, not determined by Chilvers and thus still not definitively answered, is whether the omission alleged in the particulars is the essential element e.g. that which amounts to the insufficient risk assessment or is it the evidence which leads to the conclusion the actus reus is made out. The original case of Brown is helpful in answering that question. In Brown the Appellant had been convicted of Fraudulently inducing investment of money contrary to Section 13(1)(a) of the Prevention of Fraud (Investments) Act 1958. An essential element of that offence is that there was a false statement which induced the investment of money. The prosecution particularised five statements which it alleged the Appellant knew were false, misleading or deceptive. The Court held that what has become known as a Brown direction was required. In a subsequent case, R v Giannetto  1 Cr App R 1, the Court considered Brown and identified where the distinction between evidence and the element of the offence lay:
“In Brown’s case the prosecution may well have relied on several different pieces of evidence and several different arguments to support the contention that a particular statement was misleading, false or deceptive. The jurors may have been divided as to which pieces of evidence and which arguments they found compelling, but that would be of no consequence provided all concluded (albeit for different reasons) that one particular statement set out in the charge was misleading, false or deceptive.”
Applying that distinction to our hypothetical case it is suggested that the omission from the risk assessment of some necessary consideration as particularised is the element of the offence. The conclusion by the jury that the omission made the risk assessment unsuitable and insufficient is a determination that the element of the offence has been proven and the matters supporting that conclusion would be the evidence and arguments put forward as to why, without it, the risk assessment was not suitable or sufficient. The former must be the subject of unanimity amongst the jury (subject to a majority direction), the latter need not be the subject of unanimity (there might be a number of arguments as to why that particular issue needed to be addressed in the risk assessment).
The law regarding when particulars ought to be included in an indictment is far from clear and a great deal is left to the discretion of the trial judge. Defence teams should be alert to the potential benefits of seeking such particulars; in particular careful consideration must be given to whether a Brown direction should be sought from the Court. The fact that the Court of Appeal in Chilvers does not appear to have considered Beckingham suggests there may be further appellate decisions on this topic but for the time being Beckingham remains good law, supported as it was by Lord Brown in Chargot, and a persuasive basis for seeking a Brown direction.