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Work
Instruction 6:
Establishing Physical Evidence
This Work instruction provides guidance on establishing
physical evidence ('real' evidence), ie evidence other
than that which comes from interviews.
The Work instruction states that:
"evidence is required to confirm or disprove
reasonable lines of enquiry to determine the causes
of incidents. It may also be used to prove an offence
has been committed if proceedings are subsequently
taken."
Most evidence that inspectors collect will be gathered
during interviews with injured people, witnesses,
dutyholders etc and will be recorded if necessary
for potential prosecution purposes in statements.
Other evidence needed for potential prosecution,
such as photographs of the scene and relevant documents,
can be introduced through witness statements."
It
is broken down into four key activities (KAs) which
describe how to establish physical evidence.
Key activity 1
IDENTIFICATION AND PRESERVATION OF EVIDENCE
| 5 |
Having
identified and established reasonable lines of
enquiry, inspectors should identify any physical
evidence which may be needed to support or disprove
aspects of the investigation. |
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Types
of physical evidence include:
| (1) |
parts
of machinery, equipment; |
| (2) |
work pieces; |
| (3) |
PPE,
RPE; |
| (4) |
documents,
eg company records, thorough examination
reports, method statements, risk assessments; |
| (5) |
HSE
letters or enforcement notices constituting
previous advice; |
| (6) |
HSE
or company records of previous incidents
or relevant near misses |
| (7) |
photographs; |
| (8) |
videos
(the fire brigade often video incidents,
this can provide useful evidence as to what
happened); |
| (9) |
CCTV
systems; |
| (10) |
samples. |
|
| 7 |
Inspectors
should identify and preserve physical evidence
as early on in the investigation as possible.
In cases of fatal or major accidents the police
will attend the site first. They will preserve
the scene and will make initial enquiries which
can establish physical evidence such as which
machine or piece of equipment was involved. They
can also arrange for their technical support staff
to take photographs and measurements should items
of plant or equipment need to be removed before
an HSE inspector arrives at the scene. |
| 8 |
If
large pieces of evidence need to be taken into
possession to ensure evidence is preserved, inspectors
should liaise with the police who may be able
to provide temporary storage. Inspectors should
only request this assistance if SG/HSL examination
on scene is not practicable due to unavailability
or distance of travel, and there is a risk that
evidence could be lost or interfered with in the
interim. |
| 9 |
Inspectors
have the power under HSW Act s.20(2)(e) to direct
that premises, or any part of them, or anything
in them, be left undisturbed for so long as is
reasonably necessary for the purposes of the investigation.
Inspectors may exercise this power for the investigation
of incidents where the configuration of the site
or machine at the time may be essential for determining
physical evidence, or where attendance by a specialist
inspector is needed. Examples of where this may
be necessary are to determine:
| (1) |
the
condition of scaffold edge protection; |
| (2) |
guarding arrangements at the time; |
| (3) |
nature
of electrical wiring; |
| (4) |
configuration of parts of machinery or equipment; |
| (5) |
position
of any vehicles involved; |
| (6) |
position of work pieces (eg toppled fabrication). |
|
| 10 |
It
is likely that inspectors will only use this power
when there is a fatal or major accident. The need
and speed to attend site will depend on circumstances
and in any event police assistance is often available
as already discussed. |
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When
appropriate, inspectors should make informal arrangements
with the employer to ensure the scene remains
undisturbed without issuing a formal notice. |
| 12 |
If
an inspector is unable to attend site and the
occupier is unable to leave undisturbed for reasonably
practicable reasons, then the inspector should
tell the occupier to take photographs of the scene
and keep any relevant physical evidence, at the
very least. |
| 13 |
If
the inspector considers this to be inappropriate
in the circumstances, and before issuing a formal
notice to leave undisturbed, the inspector should
be satisfied that:
| (1) |
further investigation or examination will
be necessary; |
| (2) |
this
would be prejudiced by any alteration or
interference with the plant etc; and |
| (3) |
to
leave things undisturbed would be reasonably
practicable. |
|
| 14 |
A
formal notice to leave undisturbed should:
| (1) |
be
in writing and should refer to HSW Act s.20(2)(e);
|
| (2) |
state
the time during which the article etc should
be left undisturbed; and |
| (3) |
give
a specified reasonable time-scale. |
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| 15 |
At
an early stage once on site, the inspector should
take photographs, measurements and sketches to
preserve physical evidence. They should also make
a judgement as to what evidence will need taking
into possession either for examination or to act
as later evidence. Expert help may be needed to
confirm such decisions and to provide assistance
for the identification and preservation of evidence. |
| 16 |
In
most investigations all necessary evidence will
be obtained from the dutyholders (particularly
documentary evidence), employees, other first-hand
witnesses of fact and HSE inspectors. Some investigations,
however, will require more complex enquiries,
and inspectors should be aware of and utilise,
where appropriate, other sources of information
and evidence. They include:
| (1) |
manufacturers/suppliers; |
| (2) |
other
enforcement agencies; |
| (3) |
phone
records and details of subscribers; |
| (4) |
vehicle
registered keeper; |
| (5) |
bank
transaction details (proof of ownership); |
| (6) |
plans,
drawings and calculations; |
| (7) |
reasonably practicable (accepted) industrial
practice, confirmed usually by the SG; |
| (8) |
Companies
House records (annual returns); and |
| (9) |
competent persons. |
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| 17 |
Inspectors should be aware of other possible sources
of help available through the police for evidence
identification purposes, eg police-affiliated
handwriting experts who can authenticate a personâs
signature, detect and read a rubbed out section
of a document, and detect alterations to documents
and photocopies. There are also non-police sources
available. For instance, a company formed from
experts who left the Forensic Science Service
(Evidence Direct Ltd, 172 Holliday St, Birmingham,
B1 1TJ Tel 0121-643 0990, fax: 0121 633 0288 (www.docev.co.uk),
is able to offer a wide range of analysis on documents.
They will provide details of their needs on request
to inspectors, such as comparative information,
based on type of analysis sought. Inspectors should
refer to their appointment and powers under HSW
Act, if needed, and confirm that criminal proceedings
are intended when requesting such confidential
information from any such service providers. |
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Plans,
drawings, calculations etc relating to new building
work or existing buildings may be obtained from:
| (1) |
the local authority planning department;
or |
| (2) |
the
original architects; in addition to |
| (3) |
the
client, construction contractors and structural
engineers
involved in any work |
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Key activity 2
RECORDING
FACTUAL DETAILS
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In order to supplement physical evidence, inspectors
should record factual details which are relevant
to the physical evidence identified. Such details
include measurements, speeds, light levels, noise
levels, radiation levels, vibration levels, temperature,
humidity, fume, dust, vapours, failure strengths
and weight. |
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Inspectors
should utilise expert help when appropriate to
collect such factual details. |
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Public
or private weighbridges are available if the weight
of a load or piece of plant is likely to be needed
for any proceedings. Normally a printout of the
load will be produced which can be exhibited by
the inspector together with the calibration certificate
for the weighbridge. |
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Measurements
likely to be significant to determine or emphasise
physical evidence include:
(1) height of fall;
(2) height of guard rail;
(3) reach distance to a dangerous part of machinery;
(4) depth of excavation. |
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A
sketch is a useful method of illustrating measurements
to emphasise size and scale. This may also be
useful |
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Key activity 3
RECREATION
OF THE CIRCUMSTANCES AT THE TIME OF THE INCIDENT
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Inspectors
should, where appropriate, consider recreating
the circumstances/ physical conditions at the
time of the incident, if this can be done safely.
Examples include:
| (1) |
repositioning portable ladders against structures
from which they have fallen; |
| (2) |
repositioning work pieces and removing simple
guarding from machinery (provided that the
machine is first stopped and isolated and
witnesses confirm that this was the configuration
at the time of the incident); |
| (3) |
observing
plant and machinery in motion or in use
(NB: this must not be done if measures
cannot be taken to effectively eliminate
risk of injury or damage, and may in some
circumstances need to be carried out under
the observation and direction of a specialist
inspector or other expert.). Examples
include:
| (a) |
observing
the operation of a friction-clutch
power press which has reportedly performed
repeat strokes, |
| (b) |
observing
the behaviour of cab or carriage door
fastenings with the carriage in normal
motion, |
| (c) |
demonstrating the method of slinging
used to lift an article without performing
the lift itself. |
|
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Inspectors
should first agree the recreation of the physical
conditions with the dutyholder or their representative,
and should not physically participate in moving
or operating plant or equipment. They should:
| (1) |
seek
positive confirmation that recreation will
not lead to further damage |
| (2) |
take photographs and measurements to record
the scene; and |
| (3) |
ask
witnesses to confirm the accuracy of any
recreated scene (from photographs if the
witnesses are not present). |
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Key activity 4
LIAISON WITH AND USE OF EVIDENCE COLLECTED BY THE
POLICE
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Inspectors
should make early contact with other enforcing
authorities, such as the police if they have an
involvement, so that both parties can determine
what each otherâs role and objectives are
and determine how evidence is to be identified
and preserved. The police have more resources
at their disposal and are well placed to assist
in the preservation and collection of evidence
in the case of a large investigation. |
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The
police can call upon forensic scientists and other
specialists if deemed necessary usually for the
purposes of the investigation of manslaughter
cases. However, the involvement and subsequent
evidence of such specialists can be useful for
HSE purposes also |
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In
England and Wales, it is important to establish
contact and understanding with any coronerâs
officer who may be involved. Coronerâs officers
may wish to take possession of articles or substances
as exhibits for the inquest and this may conflict
with HSE interest so it is important to establish
a good working relationship to ensure one authority
does not hinder or interfere with the investigation
of another. |
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