Posted By naomi
Could some-one explain the protocol regarding the issue of a prohibition notice when a HSE inspector serves one on an activity.

Has anyone on here successfully appealed a prohibition notice?

Naomi

Posted By naomi
Thanks Bruce,
I will email you tomorrow, thanks again
Naomi

Posted By naomi
Hi
Thanks I have looked at the HSE site, but it is a mind field!!

Bruce i have emailed you direct.

Regards
Naomi

Posted By CFT
Naomi

The section 22 can be appealed against, it still stands however and can in some circumstances be overturned by a tribunal panel; it does not necessarily mean a breach has occurred, a 22 can be issued to prevent such an occurrence from taking place.

Better to address the prohibition and take steps to satisfy the contents, or if you do genuinely feel it is wrong then by all means file an appeal; the rear of the notice should supply the ET details. Don't be overly optimistic that the PN will be overturned, (you would need a really solid case) it is extremely rare unless of course the information contained therein may be wrong or it has been inaccurately filled in.

CFT

Posted By naomi
Whats the difference between a prohibition and prosecution?

Do you receive a prohibition then prosecuted?

Posted By maddog RM
If you receive a PN then the HSE inspector should identify the issue to you verbally. The HSE inspector will have reasonable grounds to suspect that you have breached an Act or Regulation which is a criminal offence and you should be cautioned under PACE.

You may be prosecuted later so it is critical that you are cautioned and read your rights.

IMHO the HSE don't like to do this as they prefer you to keep talking to them and potentially convict yourself.

Posted By db
Not strictly true...

Unless Naomi is the controlling mind of the company, or liable as an individual - which from her previous posts I don't think she is then she will not need to be cautioned.

A PN is issued if, in the inspectors opinion, a system of work is unsafe, whereas an improvement notice has to be for a direct breach of a regulation. HSE issues far more notices than prosecutions so one does not necessarily follow the other.

And as for HSE not liking to do it - anything you say when you are not under caution (if you are to be prosecuted and are the Director/controlling mind or to be prosecuted as an individual) is not admissible and so is useless to a HSE investigation.

Posted By Dave Wilson
As an Ex EHO you most certainly do not have to interview under caution for service of a notice, this would only be done if they are thinking of possible criminal proceedings. If you do not comply with the conditions of the notice you will get 'cautioned' and then prosecuted for 'Non Compliance' and could also be prosecuted for the initial offence.

Its simple either COMPLY or APPEAL

Posted By DRB
Don't know if this has already been mentioned but interestingly if you do appeal the HSE have to prove their case whereas if they prosecute once they have proved that the risk exists its for you to prove that what you did was reasonably practicable

Posted By db
A bit off the mark there.

They only need to caution you if they are questioning you. They can still investigate using their s20 powers and talk to other people and get documents etc. from them. They are entitled to have documents etc. and asking for them does not constitute asking questions.

So you cant send them away. If they ask you questions which later turn out should have been asked under caution they cannot use it against you anyway. However, they would need to identify who they need to caution first - by asking questions and if you tell them to bugger off you'd be obstructing an inspector and/or an investigation and liable for summons anyway.

My advice is not to be aggressive and close up - they'll definitely prosecute if you do that and if found guilty it'll be an aggravating factor - "didnt co-operate M'lud"

Posted By ITK
Inspectors do not need a warrant and do not need to caution to serve a notice. Can the mods remove these inaccurate posts.

Posted By Dave Wilson
Maddog I feel you could be in serious trouble if you use this approach.

The HSE & LA have powers of entry 'at all reasonable hours' that is if you are working then irrespective of the hours they can enter.

If you dent access this is 'Obstruction' they can then go and get a police officer and enter, NO WARRANT REQUIRED as the Police would arrest you for Breach of the peace if you tried to stop.

The HSE / LA would never enter your premises and say "as a result of a tip off we want to search your premises" it would be "Hi, I am so and so and heres my warrant card I want to carry out a safety visit on your site"

As result of this then they can get round to the issue as part of the general visit, verbal. advice, written advice, notices or prosecution may then follow, if he/she are of the opinion that a prosecution is warranted they can then interview, seize stuff, take pictures etc and interview under caution anyone who they think they would want to prosecute.

They may even invite you to their offices to do this!

Posted By naomi
Bob
As you can see from the answers received it was not an entirely easy question to answer.
The company does have a competent person and that is me!
There will be times in your life when you come across situations you have not had to deal with before and all i asked was for a little advice.
I thought that was the whole point of this forum?

Posted By CFT
Naomi

Like you, I consider myself competent, I don't know it all, far from it, but I hope the consensus you have, is that much help has come to give you sufficient information to deal with your situation?

All the best, I hope it works out OK.

CFT

Posted By Kenneth Patrick
http://www.hse.gov.uk/press/2007/gnnnw10107.htm

Posted By db
Maddog. You may be right or you maybe completely wrong (and with too many years in HSE to want to remember I will say you are definitely wrong). HSE do not need to use the approach that you mention (and this is the reason why HSE NEVER need a warrant under PACE).

First of all, the investigation of an alleged offence is exactly that - alleged and not substantiated. PACE is about dealing with people SUSPECTED of an offence, not an alleged unsubstantiated offence. No-one is a suspect as no questions have been asked and the inspector has no idea of who anyone is. There is no evidence as yet of a breach and the inspector can use HSW powers to get onto your site. PACE is nowhere to be seen.

If the inspector is on site they could ask for certain documents. No problem here - no breach yet and no need to caution anyone. Or while they are on site they may see something which is, in their opinion, a possible breach. In which case, they are entitled to ask questions and see paperwork to ascertain whether there is a breach. PACE only kicks in when a person is SUSPECTED of an offence - there may still be insufficient evidence to decide who is a suspect.

So, the paperwork is handed over and it is inadequate - or maybe it does not exist or something else that leads to the inspector thinking "prosecution is a possibility". Either way there may be a reason to believe there is a definite breach. Now, the inspector may choose to caution if they have a suspect - or they may just not bother asking any more questions. They are still entitled to be on site.

OK -so the inspector does want to ask more questions. Now the person the inspector is talking to may or may not be the person who needs to be cautioned. If it is an individual or a director of the company that is likely to need to be cautioned (it is policy not to take a statement from the Director if the same person is likely to be the representative of the company but it can be done) this will not be known until some questions are asked. As soon as a person says something which means they need to be cautioned the inspector will stop - there is no point in asking any more questions as it will not be of any use at all ever. It will never be evidence against that person unless it is said on tape under caution. So don't worry about any of that.

BUT the main point you raise - that you should send them away for a warrant is totally and utterly wrong for another reason. The inspector is entitled to be on any premises to speak to anyone else who is a potential witness. You cannot obstruct them. They cannot decide who needs to be cautioned until they ask questions. PACE only kicks in when someone says something which incriminates themselves.

They could also decide not to ask any more questions BUT THEY WOULD STILL BE ENTITLED TO BE ON YOUR SITE TO GIVE YOU ADVICE and to ensure whatever breach there may be is dealt with.

If you take the action you describe, you will definitely be breaching HSW by obstructing the inspector.

HSE can enter any premises at a reasonable time - they cannot enter any premises under false pretences. The only time they could come unstuck is if they try to use any incriminating evidence which was not asked under caution. The only way around this is to put the same questions to the suspect under caution.

Oh, and you cannot ask to be a suspect.
Also, you cannot force an inspector to write anything in their notebook.

Posted By MT
maddog, if the information re PACE and HSE/LA Inspectors which you posted did indeed come from an IOSH course, then I think it would be responsible of you to raise the matter with IOSH.

Posted By peter gotch
Comment from LACORS on the Dudley case at

http://209.85.135.104/se...hl=en&ct=clnk&cd=1&gl=uk

In general, whether HSE, Environmental Health, Building Control, Trading Standards etc etc, inspectors are going to using statutory powers of entry and many other powers.

Regards, Peter

Posted By Steven John Bateson
Hi! I used to be an inspector for HSE . I can confirm that inspectors are empowered to enter any premises at any time as long as it was reasonable for them to believe work may be taking place on those premises. I once had a Juty Holder refuse to allow me on the premises so I advised him to speak to his solicitor while I waited. I didn't need to phone the police (though I would have) because after a brief telephone call with his Solicitor the duty holder allowed me on the premises.

Now for the real point of your question, before an inspector can issue a PN he/she must reasonably reach the opinion that the matter to be prohibited is or could expose persons to the risk of serious personal injury.

Note that the inspector's opinion can be wrong, as long as it was reasonable for him/her to have reached the opinion they did under the circumstances prevalent at the time the PN was issued.

Thus, the only grounds likely to succeed at appeal are that the inspector reached his/her opinion unreasonably i.e. without bothering to ascertaining sufficient information / understanding to have reached the opinion they did. I had notices appealed on this basis and they all failed but I know from having spoken to other field inspectors that appeals do occasionally succeed on this basis.

Whatever happens, whether you appeal or not, at least in the mean time you must comply with the notice. However, the best advice I can give is ask yourself, will complying with the PN reduce risk? If the answer is yes and the actions required to comply are reasonably practicable then take a pragmatic appraoch and comply, even if you think the inspector was unreasonable in issuing a PN.

However, if you have reason to believe that the required actions may result in increased risk, then get into a dialogue with the inspector to agree a way forward (don't wait for the result of an appeal): everyones aim is, or should be, to reduce risk (including the inspector).

I hope your next contact with an inspector is a little more positive (in my experience, inspectors spend far more time and effort helping duty holders with advice than they do on enforcement)

Posted By tez
Interesting dicsussion, more so about PACE Code B and warrants.

Yes some LAs did start this using Code B in light of Dudley but thankfully it has been sorted-i recall that even that example was not a HASAWEA related matter-was it not Food or Trading Standards. Under HASAWEA Powers we ( i mean we as in LA and HSE) do not need to use PACE Code B.



Yours, current LA H & S Inspector