Posted By GARRY WIZZ
just chatting with my work collegue who happens to be an ex copper.The talk roamed over the subject of police powers and HSE inspector powers.

Q.

If questioned by an HSE Inspector do you have to make a verbal statement, answer questions or can you refuse to say anything till such time as you have a lawyer..


Garry

Posted By Adam Hammerton
Garry,

We've just been through the mill with all this following a fatality last year.

You don't have to say anything to an HSE inspector unless they invoke their powers under Section 20(2)(j) of HASAWA. Interviews done under 20(2)(j) are far more formal and require the presence of a second inspector to take notes. Anything stated under a 20.2.j can not be used against you as an individual in criminal proceedings where as technically anything stated under a voluntary statement could (although HSE have assured us that they never would, if my backside was in a sling I'm not sure I'd believe them)

If at any time an inspector believes that there may be sufficient evidence to suggest that you may have committed an offence they will stop the interview and start a new one under PACE (normally done at their premises as the interview has to be recorded).

Under S20 you can request nominate someone to be with you and you can choose it to be a solicitor (obviously under a PACE interview you would always want one) however if the case goes to court it 'could' be seen as being non co-operative and 'could' put you in a poor light (Look up 'Friskies' on the HSE site).

Adam

Posted By CFT
One can at any time of course adopt the 5th amendment (sounds better that 'right to silence')if the HSE want to go down the PACE road, no reason under correct Council and appropriate advisement why you can't supply a detailed statement!

I do get a bit fed up when section 20 interviews are thrown around like confetti with that 'scatter gun' approach when only to find some 2 years down the line PACE has been requested of same individual.

Sec 9 CJA interviews in that situation please, or voluntary statements; I do have serious reservations about 'wanting the cake & eating it', "cannot later be held against the person" then want to conduct a PACE some 2/3 years later.

CFT

Posted By db
If you refuse to answer questions under section 20 you could be liable to prosecution for obstruction. And it is definitely not necessary for a second inspector to be present to take one.

In my experience, an inspector will only PACE anyone they suspect of being in the frame, although I guess there will be times where evidence becomes available which may change their view after having taken a witness statement but then this is the same as the police - its criminal law at the end of the day. However, as very few individuals are prosecuted it is mainly only directors or individuals trading as who are PACE'd. There would be no point in even asking questions of someone who is a suspect as only the PACE is admissible in court. And it is usually pretty easy to identify who will need to be interviewed under caution from an early stage.

Lilian - it sounds like the interview you talk about was under caution and not a witness statement. You have a right to say no comment to the questions then but an inference can be taken (although in my experience very rarely is!)so in theory any story brought up in court can be seen as more likely to be made up. Actually, the most difficult PACE I ever did was with a person who wouldnt even let me ask the questions. Very clever - as no inference could then be made as I didnt actually ask any questions for an adverse inference to be made! They still got fined over £60,000 though!



In essence the statement taking for a s9 and s20 is the same but with a few differences in it's application in court. A voluntary statement can be given in the absence of anyone but a s20 can be taken in the presence of whoever the interviewee wants - with the agreement of the inspector (as stated in section 20 itself!). The question of whether a solicitor can be present is a moot one and really not worth worrying about in my opinion as the solicitor can speak to the person afterwards anyway and glean whatever info they like from them. They cant say anything during the interview so it never used to bother me. A few did try to intervene (usually to the annoyance of the interviewee) but as they are not representing the person and the person cannot refuse to answer the questions put to them (obstruction again) there's not much they can do.

The major difference between the s9 and s20 is if the person makes a false statement. They could, in theory at least, be prosecuted for obstruction if they sign the s9 (as they sign a declaration of truth) but the section 20 specifically states that the person (and/or their spouse) cannot be prosecuted for anything stated in it.

Posted By David AB Thomas
The following may help:
http://www.hse.gov.uk/en...ss/witness.htm#P96_21289

Posted By Phillipe
On the subject of PACE interviews.

Question - Why do a verbal one when a written one is much easier and alot less confrontational. We have had 2 PACE interviews this year, both different authorities. On both occasions when we we 'invited' to sit a PACE interview, we declined on both. We made it clear to the EHO that we will answer any questions they have if they put them in writing and we respond in a 28 day period. This gives you time to draft suitable respones, refine them and later submit. Both EHO's were happy with this process and did not hesitate to do it this way. I suggest you speak to your solicitors and tackle PACE interviews this way in future.

As for Section 20 interviews, we have had these also. Get the EHO to provide you with copies of the questions and answers as they put them to you. You both have a record of the event and makes life much easier.

My general opinion of the EHO is that they are there to do a job, just like we are. Yes some can be demanding and invoke their powers as they see fit, but generally speaking we have a good relationship with most we come across and 9/10 jump at the chance of a face to face meeting which resolves issues there and then in most cases without the need to get 'heavy handed'

Cheers

Phil

Posted By Phillipe
Working in retail means that enforcement is carried out by EHO rather than HSE. As yet I have never had any HSE involvement when it comes to PACE. If the enforcing authority were to insist upon a recorded PACE interview then of course we will attend as it would be obstruction if we did not. The written format is always our preferred option and in vrtually all cases this is acceptable to both parties concerned. As a businees when it comes to these situations we are normally aware that this is the likely outcome and that a PACE is required. We will always take legal advice from our solicitors in the build up to these situations and act upon their advice.

The trouble with verbal PACE interviews is the individual is put under extreme pressure. i suppose that is part and parcel of the process I guess.

I sat a verbal PACE around 5 yrs ago and it is not something I would like to repeat that is for sure...I would have given anything at the time not to have been there, but character building all the same I suppose !

Cheers

Phil

Posted By DJ
Just to clarify a couple of points that seem to be going astray:

i. An individual has the right to be acompanied in any interview.

ii. the HSE has no power of arrest and as such, any interview other than one undertaken using an inspector's s. 20 HSWA powers is voluntary.

iii. in a s.20 interview, the HSE can require the individual to attend and he/she can be required to sign a "statement of truth" (usually in the form of a statement).

iv. the police can only arrest somebody if they have reasonable grounds for believing that individual has committed an offence (and they can be required to provide evidence to that effect prior to the interview).

v. where somebody is under arrest (but not yet charged with an offence) the police can question them. The interview must comply with Code C of PACE and the individual has a right to silence (although adverse inference may be drawn by the Court).

vi. Unless the invidual is under arrest, all police interviews are voluntary.

One final point, under the provisions of the Anti-terrorism Act, the prohibition on the HSE/LA disclosing information obtained in a s.20 interview to other enforcement agencies has now been removed. Consequently, it is now perfectly legitimate for the police in a joint manslaughter/HSE investigation to provide a list of questions to a HSE inspector. The inspector (with the police officer in attendance (or listening in) can then use his s.20 powers to put those questions to the interviewee, who must answer. The police can record the answers and then put them to the same interviewee in a PACE interview.

Neat trick.

Never let anybody go into any form of interview without first receiving legal advice.

Regards.

DJ

Posted By db
Oh, one more thing, The police or any other enforcing body using a PACE interview (i.e. under caution) is not required to provide evidence prior to the interview. The solicitor will ask for full disclosure and it is up to the investigator what evidence to give and when it will give it.

This is very handy for the police - for example a suspected burglar may be told that he is being interviewed about a break in at an address as pre-interview disclosure. During the interview he then says he was never there - so further questions are put to him about other evidence - for example that fingerprints were found on the window or wall, which, if disclosed earlier would have given an opportunity to fabricate a story. The solicitor will usually intervene and so the next step is to say "I realise that I have introduced other evidence which you haven't discussed with your client and you may have an opportunity to talk to your client about it now".

HSE investigations rarely need to introduce evidence like this for a number of reasons but mainly because the evidence is mostly technical and there is no doubt that the person interviewed either works for the company or had a particular role, but it is done on some occasions.