Posted By db No, no and thrice no. Reason to enter could be to do an inspection, to make copies of documents or to take statements from witnesses etc. or gather physical evidence from a scene. The need to caution someone only comes about if a suspect is asked questions.

Posted By Robert K Lewis Maddog If you wish to keep trundling this forward and want a serious discussion I suggest you use the members forum. That said Splitting hairs on the word "search" is confusing to many and rivals the combatants at the Council of Nicea in 326 CE for obfuscation. Look at the section 20 powers they amount to a requirement on all to provide upon request anything listed. In fatalities or major injuries the police are empowered to lead and search warrants would be obtained by them in the normal way. This is one reason why Legally privileged documents have to be handled properly. If the Police turn up documents and take them away when they are privileged they then become public knowledge and privilege is broken. As I started though this needs to be a members discussion from now forwards. Bob

Posted By I R Langston This is becoming a real problem area. PACE is quite straight forward and applies to all persons who have a prosecution role and indeed many others as well. PACE does apply to HSE and EHO's. In effect it could be said to be the embodiment of the ECHR and HRA. However it does not apply to HASWA section 20 as these powers clearly cease completely when certain trigger points are attained under PACE. What is truly worrying here is the lack of knowledge at both prosecution and organisational levels. We have enforcement officers who do not know where they stand and worse organisations who rely on legally untrained individuals to develop policies. The simple phrase 'Competent CRIMINAL legal organisational advice' comes into play here. My suggestion for anyone who does not have a good grasp of PACE would be to attend the IOSH Accident Investigation Course. We cover some of the basics here as it is impossible today to investigate an accident without understanding such issues. Doing anything else leaves ones organisation and indeed ones professional integrity exposed. There is not room in this forum to provide qualified answers to many of the questions, but as already mentioned PACE Code B 2.6 has an important effect. If one wants to get into case law have a look at the ECHR Funkie v France. There are numerous other authorities; examine the issues surrounding entry under explicit or implied licence and then the need for a 'Notice of Rights' under PACE. In all honesty this can not be dealt with on a page of A4, nor by the average legal advisor. I have been researching this area of the law for some six years; in some respects it seems as though it is uncharted territory, but the reality is simple. The powers of inspectors are subject to PACE and failure to adhere to the requirements may mean that evidence is subject to exclusion under section 78 or worse challenges in the ECtHR. Indeed this same requirement can affect evidence gathered by organisational investigators This whole issue has a huge effect on the corporate manslaughter Act 2007 but that's another story!!! Please come back to me if you need any help here, I worry because there is so much more.

Posted By Robert K Lewis Ian You are a little sweeping with your statements concerning section 20 powers and PACE. You are implying that all section 20 powers cease at the point that a PACE interview is undertaken. I am not sure if this is your actual intent. But, as you are aware, it is only once a charge has been made that further investigation is circumscibed. Evidence may continue to be gathered under section 20 whether or not an individual has been interviewed under PACE. The relationship between section 20 and PACE is indeed an important issue as are the privileges that exist between the legal representative and the client. They need to be clearly understood but to create a theoretical argument/structure whereby the HSE can no longer interview persons or gather evidence under section 20 seems to be taking a radical academic position that may be biased towards only the Police being competent to investigate any criminal act even under H&S legislation. The police are restricted, for reasons understood by the judiciary, in the manner that they undertake searches and other operations and these restrictions are far tighter than the HSE Section 20 powers. One must be very careful to separate these powers and treatise them independently or we get into the confusions that Maddog has shown post course. Bob

Posted By Robert K Lewis Dave Strictly you are correct and if we are to refer to the PACE codes we need to look at all the other codes in this series. The application of PACE for the HSE, if my immediate memory is correct, is restricted to the standards for interviews and cautions. Certainly Code B, dealing as it does with searches and seizures, is actually supervened by the legislative requirements of Section 20 and the other powers of the inspector as set out in HASAWA. As we are aware, specific regulatory requirements always remain above code of practice requirements. I have a feeling that Ian is coloured by his police background although I have to defer to an extent to his research experience. This would be a useful workshop debate for the 2008 conference but not, as I have said above, an open forum debate. Bob

Posted By tez I would not go in and do a "search". I would go in using my powers, requesting documentation etc as required under HASAWEA 74 and Regs made under it. Not sure how many HSE or LA Regulators have gone in and done "searches", maybe the wording is not right for what we do. PACE Code B would not apply, as it would for most investigations and inspections that are carried out by HSE and LA Regs.

Posted By Dave Wilson The HSE / LA have a god given right to enter any 'work' premises at all reasonable times to carryout there duties - end off! (Basically s20) If in the course of doing this they are of the impression that an offence has been committed then they can seize, demand documents, take phots and statements etc etc and obviously caution anyone who may be taken to task under PACE. If you do not allow them entry then this is 'obstruction' which in itself is an offence.

Posted By maddog RM It's good to see that at last a healthy debate is forming on this instead of people simply dismissing it as irrelevant, possibly through their lack of knowledge of other laws that should be considered as a health and safety professional. The clue is in the title. Police AND criminal evidence act. Do the HSE gather criminal evidence? As ITK has hinted towards you must determine whether the HSE are coming as friend or foe. If information has already been obtained and the HSE suspect a crime they should make you aware of this fact.

Posted By Adrian Watson HSE are not there to protect workers; that is the role of employers and employees. The role of HSE is to enforce the law! Regards Adrian Watson

Posted By tez As a current LA inspector of 12 years, PACE Code B is not used...............

Posted By John Richards Hi Guys/Gals As luck would have it, the HSE site has JUST what you are/are-not, looking for: http://www.hse.gov.uk/en...n/physical/obtaining.htm Definitive. Endof:

Posted By ITK I rest my case. "However, very rarely, circumstances may arise where, for the purposes of your investigation, you wish to conduct a search. In such circumstances, you could only do so with consent and you would have to follow those provisions of Code B which relate to voluntary searches. " ITK

Posted By db I don't understand the interest anyway. If there is a problem with the way HSE and LA's carry out their duties prescribed by HSW then it is for defence lawyers to argue against. The fact that HSE and LA's are not losing cases based on the illegality of their conduct during an investigation should suggest that there is no issue - and certainly not one that IOSH or it's members should be getting worried about - or the need to develop a working party. What we should be doing is advising people to see a solicitor for legal advice if they are to be questioned as suspects and not suggesting that they obstruct inspectors for the sake of a misunderstanding of their powers.

Posted By maddog RM Is this the same HSE gospel that is being referenced that gave use the 2m rule for working at height that was criticised by the coroner in 2001 fatality case where a person at work fell 1.8m? I am not saying this HSE advise on the law is right or wrong but........... Only a judge and jury or magistrate can say who is correct, then it will be end of.

Posted By tez Has this thread lost the plot... when i said end of i meant in relation to use of powers under S20 n relation to we do not search and PACE Code B,which we do not use.... not how we interpret compliance under HASAWEA 74 during enforcement and or investigations of work related injuries.....Anyway no more from me on this.

Posted By Ian Langston Good Evening maddog RM, please give me a ring on 0787 678 5301 or e.mail kinaston@north-wales.fsbusiness.co.uk Best wishes, Ian

Posted By db Yes of course, but if you look at the 1996 CHSW regs there was no 2 metre rule but a duty to prevent all falls. Whether the industry turned a blind eye is a different matter.