What are the implications of fees for intervention – a note on current best practice and practical tips for reducing your liability.
The Fees for Intervention (FFI) regime has now bedded in and looks set to be here to stay but in the context of a criminal investigation, particularly in fatal accident cases, the position as to what constitutes best legal practice is still developing.
The FFI regime is currently being challenged through judicial review proceedings that challenge the lack of an independent route of appeal. The current mechanism for appealing an FFI invoice is to submit a query to the HSE within 21 days; if the response is unsatisfactory, then a formal dispute must be raised in writing.
An HSE panel with one independent representative will then hear the dispute. This situation has been considered unsatisfactory for some time as the HSE are effectively being asked to hold themselves to account and police their own conduct. If the HSE decision is upheld the only further option is Judicial Review, which is unsatisfactory as decisions can only be overturned if they are either unlawful or so unreasonable that no reasonable person could have made them.
The Judicial Review is still making its way through the Courts but an adverse decision for the HSE may prompt a change to the regime, creating a more transparent and accountable system for disputing invoices.
Why dispute an invoice?
In order for an invoice to be valid, the HSE inspector must have decided that a business is in breach of the law. He will serve a Notice of Contravention as evidence of his opinion. A Notice and subsequent FFI invoice is only valid if a person is or has been contravening the law and the inspector shares that opinion as evidenced by the Notice.
This means that if an FFI invoice is paid by a business without dispute then, on one interpretation, they are admitting a breach of the law that could then be used in a future prosecution.
DWF have been informed by the HSE that they do not share this view; they consider a Notice to simply be evidence of the inspector’s opinion and not of the legal position. As such, a failure to dispute an invoice would not constitute an admission or act as an aggravating feature in a subsequent prosecution.
The regulations appear to support both interpretations but certainly the above would prevent the FFI process from usurping the function of the judiciary.
There is other evidence in the regulations that payment of FFI should not in itself be evidence of guilt. The regulations specify that, where a defendant is charged and acquitted, the HSE must repay the FFI sums wholly and exclusively attributable to that offence. This provision would, it appears, be unnecessary if the FFI payment was itself an irrevocable admission of guilt.
What does this mean for us?
If you receive a Notice and subsequent FFI (you cannot dispute the Notice itself, you have to wait for the FFI invoice), you should consider doing two things:
- Appeal the Notice on the basis of the lack of an independent appeals process. Given the current judicial review, it is likely that such an appeal would be stayed until the time that the judicial review outcome is known.
- Write to HSE advising that you do not accept the breach identified in the Notice, that you are treating it as a piece of HSE advice rather than as evidence of a breach and that any payment is not an admission of liability.
In any event it is always best to seek legal advice to avoid inadvertent admissions that might place you in a worse position should there be a subsequent prosecution.
If you have any questions about this article, or would like further information, please contact one of our specialist team members.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.