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Posted By TBC
Is it common practice for an EHO to give a caution under PACE when making a so called routine visit?
Or
Do they give the caution if they suspect that something is not competed or in place?
This is the first time this has happened.
Appreciate any other examples.
Regards
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Posted By Saracen11
Hi TBC, a caution will be given by an EHO/H&S Inspector only if he/she thinks an offence which they enforce within their remit has been committed, if that person is spoken to at any time before a PACE interview, the person should be reminded they are under caution, and reminded again at the interview (whilst the tape is running)...
Regards
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Posted By Robert K Lewis
Are you saying that they had turned up for a visit and then moved towards a PACE interview. If so you should talk to your solicitors before any questions are answered. Both section 20 and PACE interviews have need for representation, even though it was intended that S20 was not meant to be so formal. The nature of the questioning by enforcers in the latter context has moved the goalposts I am afraid. I would never advise an interviewee to enter a recorded interview alone.
The new code of professional conduct for solicitors has clarified and ironed out many of the issues concerning joint representation so things should start to move back towards where they were.
Bob
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Posted By ITK
Do you suspect there is an offence? YES
Do you suspect the person you are speaking to? YES
Will the answers be needed in evidence? YES
Caution under PACE
Otherwise no, definitely not for routine inspections.
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Posted By Dave Wilson
Remember that any EHO / HSE visit is in respects a visit to see whether breaches in legilsation have happened and it would be in the Inspectors opinion, in accordance with the Enforcement management model, as to what the 'actions' which need to be taken are, from informal advice to prosecution.
So in essence every visit could in theory be undertaken under PACE, some do and some don't, it just means that if they are of a mind to prosecute it saves time in repeating ground already covered.
If they are of the opinion that a breach has occured and you have ben cautioned then they can go more formal so to speak
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Posted By TBC
This is a new 'guy on the block', others have been in and found no problems over the years (one quite recently). I thought that it was a bit OTT even to mention PACE on a first meeting.
Is this a new approach to make the employer feel at ease?
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Posted By R Joe
It would help us to help you more if you could provide some more information on the circumstances and who was cautioned and on what basis eg was it an individual who the EHO suspects of committing an HSW offence (and if so what type of offence), or maybe a director or senior manager who the EHO may be viewing as 'part of the controlling mind' of the company (assuming you are a limited company)?
Secondly, Bob's advice about the need to involve your solicitor (assuming they are competent in this particular area) is very important. It is not usual to be cautioned in this way as part of a routine visit. If the EHO is trying to make some sort of point, the best response is an informed and formal one in any case.
Regards RJ
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Posted By R Joe
A further thought on this TBC - I'm not wanting you to share inappropriate details of what could be important and sensitive information on a public forum, plus your EHO may also be a forum visitor. Please feel free to email me offline if it would help.
Regards RJ
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Posted By steven bentham
You should only be Cautioned if you are a suspect to a criminal offence and the inspector is going to ask you significant questions that relate to that offence.
Its not generally done as a "hello I'm your friendly inspector I'll Caution you because I might find something wrong during my inspection" and I might wish to use it later on.
If your stuck contact me direct.
If you feel that the Insepector has not acted correctly write to the Chief Executive and ask for an explanation of the legislation and offence you have broken - this should be explained as well. Unless of course you have done something wrong and they have all the information then you need your solicitor.
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Posted By Jonathan Sandler CMIOSH
is a section 9 interview being carried out first or is this a full interview under caution?
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Posted By CRT
Sounds like this EHO may be newly-qualified and a bit over enthusiastic. An experienced EHO will only caution if he/she believes that an offence may have been committed and intends to investigate further. If this was a routine visit and your company are generaly ok then it sounds like there were no grounds to caution. I would advise contacting the officers principal officer and bring it to his/her attention
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Posted By TBC
Thanks for all your responses. I'll post a further response when I receive his report.
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Posted By Ian Langston This is really quite interesting. If you or the organisation were cautioned and then a search took place then any evidence gathered as a result could be at risk. The important question is who was cautioned, and then what took place. PACE is quite distinct in relation to other powers of entry and search that do not require ‘suspicion’ and what must take place when suspicion has arisen. Contact me on ian.langston@wanadoo.fr as the issues here are too involved to cover in such a small space
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Posted By John Murgatroyd
Never forgetting your right to silence.
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Posted By Saracen11
Hi TBC, regarding the last posting from John (good point). Does anyone know has the right to remain silent ever been tried and tested in the courts regarding H&S breaches? i.e. has a potential prosecution ever reached the bench without contribution fron the 'accused' and maybe the witnesses... and what was the outcome?
Regards
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Posted By Ian Langston
To speak or not to speak. There is whole raft of questions that remain untried and tested in relation to PACE. I have been studing this for four years or so, what does appear important but as yet undiscussed is that many of the powers under section 20 cease at the point when suspicion that an offence MAY have been committed is reached. This point is also the 'point of caution'. Indeed another intereseting conundrum for industry.
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Posted By Robert K Lewis
The whole issue around section 20, section 9 and PACE are fraught with problems and requires a full day to do it justice. In many ways it is tied up with the whole issue of how a company manages its relationships with the various regulatory authorities.
It is very unusual to take the PACE approach at the start of a visit and any PACE caution should lead to an immediate suspension of the visit pending the completion of the interview which has, by dint of caution, been requested by the EHO. It may be that it was intended as a warning by the enforcer that such powers were available but this is something I have not yet encountered in 25+ years in the profession.
Bob
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Posted By TBC
UPDATE - The young buck hasn't responded to anything he spoke about YET!
Thanks for all your responses and advice.
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Posted By Saracen11
Hi TBC, you could stick your neck out and write to the officer asking for more details about the caution he issued - copy the persons manager into the letter.
Without knowing the history of your organisation with regrads to past enforcement action, you'll have to decide if this is a good move or not... but following a caution, I would have expected some further action by now e.g. IM/PN?
If the guy was cracking the whip, the letter you write may help keep the future relationship between his feet and the ground in prespective!
I think all the other postings regarding this matter are helpful...
Good luck
Regards
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Posted By TBC
Well the EHO in question has finally responded - 'Much a do about nothing' only two or three minor bits to put right. All those sleepless nights (Not) for nothing.
Thanks once again for all your responses.
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Posted By Bob Shillabeer
Just been at a very good training course at the Grange with Ian Langdon. Trust Ian's knowledge (an ex-police officer of good standing trust me and very knowlegable.
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Posted By Dean Baker
It sounds like this EHO has just been on a training course. He must have fallen asleep half way through though because he should never have cautioned you "just in case". The questions that he should have asked should have been specific to any breach that he suspected.
I hope you listen to the advice and contact his supervisor. Although it is there for the "suspects" benefit, it can be very threatening to feel like a suspect (especially when you are not!) and he should be discouraged from doing this to any one else.
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Posted By Dean Baker
And I've just thought of another.... You should only be cautioned if it is you personally that the inspector suspects or if you are the controlling mind, i.e. director or owner.
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Posted By DJ
The short answer is No.
Regards.
DJ
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Posted By Saracen11
Hi TBC, the inspector must ask the person to be cautioned if he/she can speak on behalf of the company... before the caution is given.
Regards
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Posted By Ali
Under PACE Act an EHO can only give you a caution if they have good reason to believe that you have committed an offence. A caution does not have to be tape recorded - that is a PACE interview ! I am an ex-EHO, so hopefully I can talk for the rest of them.
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Posted By Tony Brunskill
It is not the norm. I advise clients that if they are cautioned. say nowt and get a brief!!
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Posted By Saracen11
Hi TBC, a caution MUST be recorded either in the offiers notebook or on tape, otherwise anything that is said and documented/recorded, either in the notebook or on tape is worthless.
If an interview is suspended/interupted for whatever reason; tape change, toilet breaks etc... the person under caution should be reminded he/she is under caution and this should be recorded - during a PACE interview, it'll be on tape... so in a nutshell and according to the black book, a caution should be recorded.
Regards
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Posted By Adrian Watson
Ali,
Any conversation after a caution is an interview under PACE! It does not not need to be taped but it must be recorded to be used as evidence. If there is any break the person must be recautioned to remind the person that they remain under caution.
Regards Adrian Watson
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