“Remember, you have a duty to cooperate; you don’t have a duty to capitulate,” a packed SHP Legal Arena heard today.
Kevin Bridges, a partner at Pinsent Masons law firm, guided delegates through the issues they need to bear in mind in order to avoid prosecutions and to defend them successfully if they do arise.
“Get your ducks in a row, and get your house in order,” was his advice, as he urged practitioners to ensure the follow an incident-response protocol that should be both documented and tried and tested. Such a process should cover:
He warned delegates that they could be “setting themselves up for a fall later on” if they do not obtain legal privilege for documents written up as part of accident investigations in order to learn the lessons and prevent a reoccurrence of an incident.
If this is the dominant purpose of the document then it will fail the test of privilege and be disclosable to third parties for criminal or civil proceedings.
“This can put you on the back foot and start a chain of events, from the investigation through to PACE interviews and a possible prosecution, which you have started,” he explained.
To pass the privilege test, the document has to have come into existence for the dominant purpose of contemplating legal proceedings.
Moving on to discussion of how to manage requests for interviews by enforcers following an incident, Kevin warned delegates to check what type of interview is requested before agreeing to it.
“There is no such thing as an informal chat with an enforcing inspector,” he explained. “They’re like journalists, everything is on record.”
A voluntary interview of an individual may be requested, and Kevin warned that individuals who are concerned about their role in the accident may consider not to grant such a request, as it could lead to incriminating themselves and others.
Under s20 of the HSWA, the HSE has the power to compel someone to attend an interview, however, individuals have protection against self-incrimination, as well as the statutory right to have someone sit in on the interview with them.
Finally, individuals can be interviewed under PACE if the enforcers suspect the individual of committing an offence. Kevin suggested, in such situations, a legal representative should sit in on the interview with the individual concerned – not least because any evidence given could be used against the individual in a later prosecution.
Nevertheless, he urged delegates never to feel pressured to attend a PACE interview, as it is still voluntary and, therefore, refusal to attend should not amount to a failure to cooperate.
“It is very often the case that attendance may not be in your best interest and, in my experience, those interviews can often come back to haunt those individuals.”
Other options include written representations, or asking for written questions and providing written answers in response.
Carrying on the tactical theme, he also told the audience not to be afraid to fight a prosecution if one should arise. He called on practitioners to ensure that the quality of their risk assessment in identifying material risk, amounting from the conduct of their organisation’s undertaking, is crucial, as it is this that will form the basis of a defence on the grounds of reasonable practicability, and whether they did enough, under the law, to avoid the incident in question.
Click on the video below to watch an interview with Kevin after he delivered his seminar:
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