Posted By bigwhistle As the Police and Criminal Evidence Act 1984 applies to the HSWA 1974. How can people be prosecuted for failing to provide statements to Inspectors?

Posted By Nikki Although PACE applies to the HSE their powers are far more extensive than that of the Police. HSE inspectors can compel persons to give them a truthful statement using their Section 20 powers. PACE interviews are conducted under caution. An inspector has a permanent warrant and can enter premises and take items relevant to their investigation at anytime. Failure to assist in their investigation would be an offence. In reality though, you can't compel someone to give youinformation if they don't want to!

Posted By Jonathan Sandler In reply to your staement, both HSE and EHO are trained inline with PACE, admendments where brought in under Sch 3 of the HASAWA 74 Act. Regards Jonathan Sandler

Posted By bigwhistle Witness/suspect its a fine line I think that is a moot point particularly if you are a manager. The HSE are asking people for written statements/confessions by post and I believe in the absence of case law this could easily be challenged.

Posted By Adrian Watson The answer is actually quite simple. Whilst an enforcing officer can require you to give a statement, you do not have to incriminate yourself. Under PACE Code of Practice D as soon as an investigating officer believes an offence has been committed, he must stop the interview and give a caution. At that point you may continue, but excercise your right not to incriminate yourself. If you are an officer of the company you do not have to incriminate the company, as it would incrimate yourself under S37. Regards Adrian watson

Posted By Stuart Nagle PACE has applied to and been relevant to all persons who a legal enforcing authority position - from Police Officers to Highway Inspectors, since it became law some years ago. In this time the only real difference in the effect has been the change in the legal caution that must be given... The response above, that states "Under PACE as soon as an investigating officer believes an offence has been committed, he must stop the interview and give a caution" is also fact, as is the further point made where it is stated that "At that point you may continue (the recipient of the caution), but excercise your right not to incriminate yourself". PACE has proved a useful tool in many areas when investigation moves onto the siting or recognition of an offence, at which point, when a caution is given and the explaination for giving a caution explained to the person being cautioned, it often achieves the desired results without the fuss involved in actual legal action being taken. This has been proven from practical experience in the enforcement of the highways act 1980 for many different offences, from parking on protected verges and illegal vehicle crossings to waste skips deposited on highways without a licence and so forth. It tends to concentrate the mind and have a very sobering effect in many areas!! Stuart

Posted By David AB Thomas The following may help: http://www.hse.gov.uk/en...rcementguide/sitemap.htm

Posted By John Murgatroyd The simplest answer is just to look at them and say nothing. You can't be compelled to say anything, you have a right to silence.

Posted By Jonathan Sandler Please replace the word FINE for FIND

Posted By bigwhistle Apologies to those who cant understand the legal point I am making - Frank The HSWA as we all know came into force in 1974 and PACE in 1984 which in effect modified all previous Acts before it. So I believe the HSE are on dodgy ground demanding anyone to make written or verbal statements although up until 1984 they werent. However maybe this point has been challenged and there is case law on it.

Posted By Stuart Nagle Without wishing to upset anyone, I think somewhere we may have lost the track here., PACE is 'The Police and Criminal Evidence Act' with the emphasis on on the manner in which the evidence is gathered by a person with authority for enforcement. The whole thing is geared to the collection of evidence in a certain manner, having cautioned the person providing the information that what you are doing is taking evidence (electronically...e.g. taped or digitally recorded, verbally and making notes or in a formal written form such as a statement). What is not important I think is the enforment regime, but the manner in which the evidence as a whole is collected by the enforcing authority to ensure that the evidence is not tainted in any way that would prevent its use or bring into question its admissablity in court. As far as staying silent is concerned, "no comment" at the time may not enhance in the eyes of the law the veracity of any statements or evidence you later provide in a court.... hence the wording of the caution itself. Stuart

Posted By Frank Hallett Good evening y'awl From the earlier assertions it would appear that I'm working from an out-dated version of the HSWA. Could any of those earlier, more knowledgable, respondants please enlighten me and provide the exact changes to the wording of HSWA Ss 20 & 33 brought about by PACE and the legislation that has brought those changes about? I simply can't locate them. Looking forward with some anticipation to responses to this - I'm always willing to learn something useful, especially when it's about the foundation law of H&S. Nighty-night Frank Hallett

Posted By bigwhistle I was walking in a Northerly direction when I apprehended the subject on account of his furtive eye movements on arrest he said "all magistrates are b@$#^&ds"

Posted By Robert K Lewis The section 20 powers are so wide that there does need to be a level of management of such interviews. The intention of this section was to enable the HSE etc to establish factual evidence of an occurrence and it was implicit that there should not be any questioning concerning personal involvement. In such interviews it sometimes occurred that the HSE etc overstepped the boundary and posed "improper" questions without caution etc. I know that there have been issues concerning the use of the same solicitor to represent both company and employee but many law firms will now bring in a separate company to support the individual employee and the company still takes the cost. I recognise Johm M's concerns but would always advise representation and most employees cannot afford a £100+ per hour bill The whole question of managing interviews and statement taking is critical in any situation. It is not about hiding facts but about proper protection in a judicial process. Bob

Posted By John Murgatroyd Since you have no assurance that your "statement of truth" will not land you in the muck, it's best to keep your mouth securely shut. By all means take legal advice, if you can afford it. If not remember: careless talk costs your life savings. Fortunately, my union offers me advice and help on these occasions. On the last visit (another anonymous complaint....probably from a competitor) I was asked to demonstrate the safety equipment on a hydraulic press.....after I handed them the operation manual and suggested they read it, they left. It may come as a surprise to most of you, but employees are united in their contempt for the H&S and their staff. Their visits are usually followed by management resentment, directed towards the employees. Nobody welcomes the arrival of the H&S inspectors (rather like the spanish inquisition)

Posted By Andrew Brown There still seems to be a lot of confusion here, its not a case of PACE or section 20. These two run alongside each other in any investigation. PACE applies when the inspector has grounds to suspect the person he is talking to has committed an offence, whether an employee who may face prosecution under section 7, director under section 37, or body corporate under anything else. Up until that point Section 20 and or voluntary statements apply as the person is a witness of fact. A section 20 statement cannot be used against you by HSE. An inspector who used a section 20 as a fishing expedition for information then decided you were a suspect and used PACE would be on dodgy ground. Inspectors are supposed to stop a witness interview and give a caution as soon as they have suspicion that an offence may have been committed. There are several very good firms of solicitors out there who have spent a lot of time trying to get Section 20 statements made in admissable and challenging the process under which they are taken. So far they have not succeeded. My advice is: If you are a company under investigation and have deep pockets take legal advice right at the start from a good solicitor and or consultant who specialises in dealing with HSE. If you are invited to a PACE interview as an individual suspected of an offence under section 37 or section 7, take expensive legal advice. Unlike the police HSE do not have power of arrest so they cannot put you in a room and question you unless you volunteer. If you agree to the interview there is a real risk you may incriminate yourself and give them evidence they did not already have to prosecute you. If you are a witness asked to give either a voluntary or involuntary (section 20) statement opt for the involuntary it offers you more protection.

Posted By bigwhistle Frank its strange that you arent able to grasp some of the valuable points these people have raised. Law is a dynamic subject and the parameters move via Case and Statute Law maybe that wasnt in your big book of Health and Safety circa 1974?

Posted By Frank Hallett Good evening to all This has been an interesting series of exchanges and I have learnt several things as it has progressed. The most important learning point for me has been -----deleted in case it's misinterpreted-------. Ah well - ! Back to the history lessons and practical application. Frank Hallett

Posted By Robert K Lewis VJ I think John M expressed some trenchant views on why the system has to be constantly monitored. The debates concerning PACE if I recall correctly worried that the police would be unable to secure the evidence for convictions because of the fixed requirements. I for one do not believe S20 interviews should not be used but simply that they are appropriately undertaken by the inspector and any person making a statement has appropriate representation. We must always hold a degree of scepticism over the use of any power otherwise we as a society can allow abuse by default. This is wandering off the original thread in some ways but the relationshp between the various procedures and the benefits of electing to follow one particular route over another is a skill that needs to be honed. Bob

Posted By bigwhistle And so the curtain falls!