Several regulatory developments in health and safety are paving the way for a tougher enforcement regime in the future, warns IOSH 09 speaker, Atiyah Malik. So companies should exercise caution when helping the HSE with its enquiries.
The regulatory climate has changed dramatically over the last 12 months, with significant consequences for individuals and organisations.
Most recently, of course, the Health and Safety (Offences) Act came into force in January this year, raising the maximum penalty that may be imposed by the lower courts, and introducing custodial sentences for more breaches of health and safety. This Act followed hot on the heels of the long-awaited Corporate Manslaughter and Corporate Homicide Act, which came into force in April last year. Its effect should be to make it easier to successfully prosecute an organisation for a corporate manslaughter offence.
Last April also saw the merger of the Health and Safety Executive (HSE) with the Health and Safety Commission. The aim of unifying these two bodies into one regulatory unit was to improve communication, accountability and strategic oversight, reaffirming the HSE’s commitment to strengthening the importance of health and safety in Great Britain. This commitment is demonstrated by the HSE’s recent consultation on its new draft strategy, which sets a tone of more rigorous enforcement.
These developments are already leading to enforcing authorities exerting increased pressure on the organisations they come into contact with as part of their inquiries. This ‘leave-no-stone-unturned’ approach shows no signs of slowing down in the near future. It is therefore more crucial than ever that organisations and individuals give full consideration to HSE investigations and interviews.
Interview requests
Where there is a suspected breach, or breaches, of health and safety legislation, an HSE investigation will more often than not, result in a request for an interview under caution. The HSE may request an interview with an authorised representative from a company or, if individual breaches are being considered, with an individual.
An interview under caution is a formal process carried out in accordance with the relevant provisions of the Police and Criminal Evidence Act 1984 (PACE). As a result, the interviews are tape-recorded, and interviewees are cautioned beforehand about their rights.
It is imperative that appropriate consideration is given to the request for such an interview. If it is to be conducted by a HSE inspector, the company is not obliged to attend. Only the Police have powers of arrest so as to allow for a prompt and effective investigation.
However, as long as the HSE inspector complies with the provisions set out in PACE, anything said by the representative can be used in evidence against the company. In addition, although there is no obligation to answer questions, and the representative can remain silent, failure to mention something crucial at the interview stage, which is put forward at a later stage, can lead to an adverse inference being drawn, which could harm a company’s defence.
Considering a request
In practical terms, if the company does not wish to answer any questions at all, then there is no benefit in attending, and it would be advisable to decline the interview request. However, there is a number of factors that a company should consider before rejecting a request.
First and foremost, it is essential that the purpose of the interview remains at the forefront of the decision-making process. While it is only fair and proper to provide a suspect with an opportunity to answer the allegations and provide their own account, it is primarily an opportunity for the HSE to obtain evidence on which to base any subsequent prosecution of the company. It may be, for example, that prior to an interview, the inspector does not have enough evidence with which to bring a prosecution.
Other factors that are relevant to a company when deciding if it should attend include:
Attending the interview
If the company decides to attend the interview, it is imperative the right individual is selected. That person must be: suitably senior and authorised to speak on behalf of the company; have the knowledge to properly answer questions relating to the incident; and have good communication skills.
In preparing for the interview, it is advisable to request disclosure of any relevant documents and, specifically, copies of documents that the inspector may wish to refer to during the interview. A list of issues to be addressed at the interview, plus details of any suspected offences, should also be obtained from the HSE well in advance.
At the start of the interview it is essential to clarify the capacity in which the individual is being asked questions. Where a person is suspected of individual offences he should not attend an interview as the representative of the company, as it causes evidential difficulties. However, in some cases, such as where the company is a small to medium-sized enterprise, there might be no alternative. In this situation two separate interviews would be required — one to be answered in an individual capacity and one on behalf of the company.
Companies attending an interview should try to take control of the process. Consideration should be given to a prepared statement, which can be read aloud at the start and ensures that all pertinent points are addressed. The representative should be helpful and avoid being confrontational.
A solicitor should always accompany the representative to an interview and will intervene whenever necessary. The solicitor will be familiar with the questioning techniques, the powers of the HSE generally and specifically under PACE, and will ensure a level playing field is maintained.
Consequences of non-attendance
There is much confusion surrounding adverse inferences. An adverse inference can only be drawn where, during an interview, the company (via its representative) fails to mention a fact that is later relied on in court. It cannot be drawn where the company declines to attend an HSE interview under caution.
Nevertheless, should the company be prosecuted and later choose to plead guilty, or be convicted, the earlier decision to agree to an interview may well become a mitigating factor. If the company attended the interview, or provided a voluntary statement, they would be able to put forward a submission in mitigation that they fully and voluntarily cooperated with the HSE during its investigation. That said, it is important to remember that a failure to attend an interview should not be cited by the HSE as an obstruction to its investigation, on the basis that an organisation or individual cannot be compelled to attend.
In addition, the failure to attend an interview is not a catalyst to a prosecution. The HSE will still be bound by its own code, policies and procedures to ensure that any decision to prosecute satisfies the evidential and public-interest tests.
Looking ahead
What we foresee on the regulatory horizon in the coming months is a continued increase in enforcement, a continuation of the rigour with which workplace accidents are investigated and, as a result of the introduction of the Health and Safety (Offences) Act, the possibility of higher fines and, in the most extreme cases, loss of liberty. As a result, the importance of giving full consideration to the interview process is even more apparent.
Atiyah Malik will be speaking on this subject at the IOSH 2009 Conference on 17 March at 16.15.
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