Posted By Ian Brough A collegue of mine has been invited to attend an interview (under caution) at the HSE following an incident. After advice from a solicter he has been told that he should not attend, as it may harm any defenece they have. Firstly, do the HSE have any legal right to force an interview to take place and, if we follow the solicters advice, could this be seen as not co-operating with the investigation. Does anyone have any experience of this? Ian

Posted By Dave Wilson Follow the solicitors advice as if they had enough evidence to prosecute they would come to your place of work and interview under caution and as soon as they caution refuse to say anything until your solicitor arrives. This is normally a fishing exercise and I have had people who have received this both HSE and Env Agency and the advice of the solicitor has always been do not go! Remember that they cannot use anything in evidence until you have been properly cautioned under PACE so this will not go against you at court. Follow the advice!!!

Posted By ClaireL I'm sorry but as an ex-enforcer I would have to disagree. An interview under PACE is because they suspect that you MAY have committed an offence and you cannot incriminate yourself unless you are under caution. Generally they will be obliged (under their own procedures) to interview anyone who may have a bearing on the case. But the purpose of the interview can be varied. They may at that point already have sufficient information and the interview is a formality. Or they may still be trying to find out if there is sufficent information for a prosecution (against someone not necessarily the person being interviewed). Or other reasons. Attending an interview is not necessarily a bad thing and can be an opportunity for the person to put across their side of the story (mitigation) if they are potentially being prosecuted or can eliminate them from future enquiries if they have done nothing wrong (remember that the interview will be under PACE if there is chance the person may incriminate themselves not necessarily because the HSE think they will). Not attending an interview in my opinion is something not to be taken lightly. It can be bought up in a bad light in court. Prosecutions rarely go ahead just on the basis of what was said in an interview, there will be a whole host of other evidence to get that far. In my experience most solicitors rarely understand anything about H&S law or how the HSE process operates, so I wouldn't necessarily trust what they say as being the 'right' thing to do. If you want feedback on your particular circumstances then contact me direct.

Posted By Dave Wilson Claire take your point and as an EX enforcer myself look at it from the 'defendants' point. "Please come in and discuss this issue under caution" "No!" So what are the HSE going to do next? "m'lud the defendant refused to speak to me when I asked him to!" "best lock him up for a couple of months then" If you or I had enough grounds to consider prosecution etc we would not "invite" we would appear at his place of work and interview under Pace. I do not know if this is good practice but it would appear that this is becoming more and more prevalent and I have experience of a number of cases and the solicitor always says 100% don't go! It has always been a fishing exercise, if you are affected by what an employer has done to you / family you cannot wait to speak to the HSE and this ruse that if you have done nowt wrong then you have nothing to fear is, pardon me poppycock!! Once you have them in your lair and cautioned and they have declined a solicitor you know and I know you are quids in!

Posted By ClaireL There will be no Jury unless it goes to Crown Court and all cases start in Magistrates and that is where the majority stay. Early admittance of guilt and helping the prosecution in their enquiries are both accepted mitigation for a reduced fine from the court under case law. I cannot emphasise enough how refusing to answer questions to the HSE is seen in a dim light by both the HSE and the courts. It may be your 'right' to remain silent but it won't help you in the long run as it is seen as being uncooperative.

Posted By Robert K Lewis Pete I think that is a jaundiced view especially if you look at the law society code of conduct. The same firm of solicitors can be used with the provision of the necessary waivers etc. Most companies employ some of the best firms of solicitors and I think I would rather them pay for one who knows what he is doing. Claire Contrary to your statement there are many firms of solicitors who know and understand H&S and E law far better than many enforcement officers. The forced debate by the HSE over section 20 and legal representation typifies the anti-legal representation stance found in many (but not all) enforcers. PACE interviews are well understood by ALL solicitors dealing with any criminal law and those involved in HS&E practice are well informed about section 20. I think you would be well advised to withdraw your remark! Bob

Posted By ClaireL Bob, I won't withdraw my remark. It was made based upon my experiences. Yes there are some solicitors out there that understand H&S law and the HSE process but the majority that I came across didn't seem to. Yes they understand what PACE is but that is not what I was saying. I did not say don't take legal representation, in fact I ALWAYS advise to take legal representation. What I said was to take with a pinch of salt the blanket 'don't go and don't talk to them' approach by solicitors, which I know to be an inflammatory approach. The HSE see it as un-cooperative and are therefore more likely to pursue the case and the courts see it as uncooperative and so the fine will not be reduced accordingly (if it gets that far). You can choose to not answer questions on the day but why lose the opportunity to put your case across and why lose the opportunity to find outwhat what the HSE have up there sleeve? You can even request a copy of the questions beforehand. There seems to be a general perception that ther HSE are out to trap people and trick them into incriminating themselves. This is just not so for most HSE inspectors. Prosecutions are time consuming and a pain in the butt to be honest. I always played fair. All but one of the companies that I prosecuted shook my hand at the end and thanked me for sticking to the facts and not 'hamming it up'. All but a couple of the defence solicitors made the situation worse for their clients by quite clearly not understaning H&S legislation and by coming out with stupid statements like 'but it's not like the injured person is crippled for life' or 'but they only lost the ends of their fingers'. The courts hated that. My point is that a PACE interview can be seen as an opportuntiy for both sides and this 'don't talk to the HSE' approach is ludicrous. My comments stand.

Posted By ChrisM "All but a couple of the defence solicitors made the situation worse for their clients by quite clearly not understaning H&S legislation and by coming out with stupid statements like 'but it's not like the injured person is crippled for life' or 'but they only lost the ends of their fingers'. " I find this odd....

Posted By Tabs ClaireL - i see your point, and how it would put the heckles up of an inspector. Would it be an option for the poster to invite the HSE in to a meeting with a senior representative of the company and a legal representative? We have seen elsewhere on this forum how responding to requests without top level agreement can lead to problems.

Posted By Arran Linton - Smith Interviews can also be a useful two way process. I have sat through one PACE interview (together with a solicitor we were representing the client) where we had the opportunity to challenge prosecution evidence. It was evident to both parties that evidence was weak, however I would not have liked to chance this in front of a magistrate or jury. Interestingly the local authority concerned did eventually drop this case.

Posted By Robert K Lewis Claire The underlying issue here though is that the HSE, if they are considering prosecution of the company, should be inviting the company to provide a representative to respond on behalf of the company. The invitation should not be made to the individuals concerned. If you are inviting an individual directly it suggests that you suspect them of an offence instead of or as well as the company. PACE invitations as you say cannot be ignored but they must be properly managed. It is unfair of the HSE or the EA or the LA to use PACE interviews for lone individuals unless they are clear in their suspicions right from the start. It is not a matter of H&S law but of criminal procedure and admissable evidence. I too would also make the point that one should only use firms of solicitors with HS&E practitioners on their staff. This is the reason why I reccomend the company's firm of solicitors are used as they generally are selected for the specific expertise in this area of law. Individuals are not normally in the position to afford the fees of such solicitors. Get good advice and get it quickly and one is then in a position to manage the interview and understand where the questioner is wishing to go. Bob

Posted By ClaireL Bob, I think that you misundstand the varied nature of an interview under PACE. The original post of this thread does not give enough details to give exact advice. But for example if there had been an accident the HSE inspector would want to talk to anyone who may have a bearing on the case (injured person, witnesses, other employees, lime managers, managers etc). They start at the bottom and work their way up to top management. These interviews will usually result in a statment being taken, just in case that information is needed in court, though that statment may not always have much value in the overall case. If at any point someone they are talking to incriminates themselves then the interview should be stopped and a caution given before the interview proceeds, which will usually be delayed until it can be done under 'taped' conditons. The nearer the top of the management chain the more likely someone is to incriminate themselves (by admitting management failings such as a lack of training or lack of RA's etc). Most offences relate from management failings even if there were individual failings as well. Therefore if there is any chance the person may incriminate themselves by admitting that management failing the interview will be held under PACE conditons (ie, a caution given, taped etc). That doesn't mean they will incriminate themselves or that the HSE will prosecute just that the possibility is there. So an individual may be asked to come in to answer questions because the HSE don't know if they are implicated or not. They just want to talk to that individual about the circumstances and then they will make a judegment. Or they may know that an offence has been commiteed but want to understand the circumstances so as to know whether to prosecute based on mitigating circumstances etc. The HSE may be considering prosecuting an individual and the company, or several individuals. The decisons won't be taken until everyone has been spoken to. A representative of the company will only be called in when the HSE want to investigate whether the company as a whole has liability. How can a representative of the company answer questions about what a particular person knew. That is the whole point of talking to the indivdual and not the company. PACE interviews do not always result in prosecution and the primary use is not to get a confession. I only ever had one person come out and confess in a PACE interview. The rest of the time I had sufficient evidence without that interview but procedures meant that I had to offer the company / individual the chance to explain the situation and that had to be done under caution. I think some of you have seen too many cop shows! On the subject of company solicitors attending PACE interviews with an individual, the problem is that the solicitor may be acting in the companies best interest and not the individuals.

Posted By Robert K Lewis Clairc In common with many enforcers you are disregarding the law Society code of conduct which explicitly deals with this issue of conflict of interest. In spite of HSE contentions that there is de facto conflict of interest the Law society last year confirmed that if the code is followed then conflicts should not occur. It is rather OTT to state solicitors are unable to deal with the conflict issues in accordance with their professional code of conduct. On the matter of PACE interviews they are intended, as I understand them, to deal with persons suspected of committing offences. The section 20 powers are more than adequate to deal with information gathering. At this point one would anticipate that the evidence is already there to decide on the likely grounds or suspicions. But I do not think we are that different in our thoughts oveer this. Bob

Posted By ITK Bob is right, PACE interviews should not be thrown around like confetti, they should only be used if someone is suspected of an offence, not as a fishing expedition. See my first post further up the thread. Also Section 20s are generally advised against, as they have little value to an inspector. Section 9 statements are the preferred option as they can be admissible in court. ITK

Posted By ClaireL I think you are misinterpeting my comments. I did't say that PACE interviews were to be thrown around like confetti or used as a fishing exercise. I said that they were used when the person may be suspected of committing an offence but not that they would necessarily have committed an offence. We also used them as part of the investigation for the person or organistion to offer mitigiation even though we didn't need the evidence. Different inspectors carry out PACE for different reasons and that will be based on the direction of the PI, and we all know how fickle they can be! Bob, the fact that the HSE do what they're not supposed to do is irrelevant because the advice being offered is on the basis of what actually happens not what should happen. If you note I am an EX-inspctor. I left for many reasons including the fact that I disagree with many of the things that go on. Why do people choose to be so antagonistic on this forum? There is so much personal ego it's frightening.

Posted By Robert K Lewis Clair If we did not have egos we would not survive long in this job:-) Bob

Posted By Dave Wilson Claire I appreciate your views and insight into the HSe etc but back to the main point, I feel revolves around the word "invite" and you did say that a PACE interview is when you suspect someone of committing an offence. So, why "invite" the HSE have the powers to compel, so why not say that you need to attend as we think you have commited an offence and we want to get your views. If the HSE had enough evidence they would prosecute under their EMM. I can appreciate the HSE do not have "arrest" powers so the police would never "invite" they would arrest, they may say come to the station at a certain time but they would then say if you don't we will come and arrest you. "invite" bad word

Posted By ClaireL Dave, I won't justify the use of the word 'invite' it's not my call, I didn't write the template they use! The HSE can't compel anyone to incriminate themselves so they can't force you to talk to them. I guess that is where the word came from. The EMM is a joke and is a form usually filled out retrospectively and reluctantly by most inspectors as a paperwork exercise. The outcome of it can be easily manipulated to suit their needs. All it does is justify the action they choose to take or not take. It is not evidence. As I said would never have been allowed by my PI to prosecute without giving that person or company a chance to talk to me first. Having enough evidence already is irrelevant. Maybe other areas did it differently but that was how I had to operate. Ray, Saying thst your solicitor told you not to talk to the HSE would not be grounds for mitigation in court. You can choose to ignore my advice. Helping the HSE in their enquiries does count as a mitigating factor in a court of law and case law means that it reduces the fine. Also if you don't talk to the HSE at all then how can you give mitigating evidence that may deter enforcement action? Reality from experience. You are being overly pessimistic in my opinion.

Posted By PBH Sorry Claire you beat me to it!!

Posted By Penfold In my only experience with this, the company would not allow the person to be interviewed unless they had the company solicitor with them.