The very extensive powers of HSE inspectors are set out in sections 20 and 25 of the Health and Safety at Work Act (HSWA). Inspectors are given powers for the purposes of enforcing HSWA and relevant regulations made under it. These powers are subject to general law, such as the Human Rights Act, the Police and Criminal Evidence Act (PACE) and if necessary, judicial review, all of which, in different ways, put some limits on how inspectors can use them.
They include powers to:
Inspectors are encouraged to try to obtain evidence voluntarily, without recourse to these powers, if they reasonably can. In most circumstances inspectors will seek your cooperation before relying on formal powers. If they do take any steps in pursuit of their powers, they must record what they are doing in writing, with the reasons for it.
Inspectors’ powers allow them to turn up without warning, although once we know of an investigation, we would aim to have sufficient engagement with the HSE to ensure that this does not happen. Whilst it can be very inconvenient for inspectors to call unannounced, it is not a good idea to refuse to deal with them; they should be treated politely at all times. Make sure you get the name of the inspector conducting the case. If inspectors are exercising their powers formally, you are entitled to ask to see their warrant. Site owners and controllers should ensure they are aware of any site visits that do take place.
It is in the interests of the inspectors to follow correct procedures so as not to compromise the possibility of a successful prosecution, expose the HSE to civil actions in damages and potentially also to judicial review. HSE inspectors are almost always courteous and reasonable to deal with. However, occasionally the HSE does breach procedural rules, in which case we may need to challenge what they are doing. It is always sensible to remember that although they may appear friendly, they are not your friends.
You have a general obligation to cooperate and, subject to not otherwise prejudicing your position, we almost always advise our clients to do so because if there is a prosecution, a sentence may be somewhat reduced if a defendant has been cooperative throughout.
Although their powers are extensive and potentially highly intrusive, they can only be exercised subject to the general law and in particular the Human Rights Act, which may protect both individuals and corporate bodies. This means that the HSE cannot ignore your right to a private or home life, or peaceful enjoyment of property. The HSE is required to use its powers only where the action is objectively justified and proportionate to the matter under investigation.
When making initial investigations, inspectors will usually simply ask for a statement. However, where prosecution is contemplated, interviews must be conducted under PACE, just as if the police were dealing with any other criminal investigation. This means that these interviews will usually take place in a police station with appropriate facilities for recording. Equally, interviewees should be given the same protection in terms of professionally conducted and fair interviews. You may in some circumstances be allowed to deal with a PACE interview by producing a written statement to be read at the interview and this can be very helpful in a complex case.
If you are to be interviewed by the HSE, you can ask to have someone with you. This could include a friend, colleague or a lawyer, but not a person who might also be a witness. It is important to be clear as to the role in which the interviewee is being interviewed: if they are a senior manager or director being asked to answer questions as a spokesman for the employer, then it may be appropriate to have the employer’s lawyer present. However, if the employee is being interviewed in their personal capacity (ie as a witness to events and not a spokesman), then it would not be appropriate for the employer’s lawyer or anyone else who might influence what the witness might say to be present. Employers may not attempt to influence what is said to the HSE by their employees when being interviewed without risk of committing the offence of perverting the course of justice.
Interviewees have a privilege against self-incrimination – ie where a person has been compelled to give answers at interview, those answers cannot be used in criminal proceedings against them.
The HSE states that when it is seeking information which is contained in an electronic form, it will usually ask for it to be printed off, and this is our experience of HSE investigations to date. However, provided that the integrity of the electronic documents can be preserved and depending on the nature and volume of documents the HSE is seeking, a discussion with its inspectors as to alternative electronic means of producing documents may be worth considering.
The HSE may wish to have IT experts inspect relevant devices, documents or data where, for example, there is a concern that a document has been altered.
Occasionally inspectors may want to seize a computer or other electronic device such as smart phones and tablets, but before doing this the HSE has to consider whether such action would be necessary, justified and proportionate. An alternative might be for the HSE to create an image of the hard drive instead.
Although the powers of the HSE are extensive, they do not include a general power of search and seizure. Sometimes, however, the HSE will want to conduct a general search. It can only do this with your consent in writing and under caution that anything seized may be used in evidence.
HSE inspectors do not have the power to compel production of documents which you are entitled to withhold on grounds of legal professional privilege.
Therefore, if you are asked to produce documents, you should not include communications with your lawyers – such as statements, reports (including reports from third party experts) and other information forming part of, or associated with, your communications with them. However, just how far privilege extends will vary from case to case and disclosure of a document to the HSE would generally waive any privilege so that it can be referred to in any later prosecution. Internal incident reports are generally not privileged.
The important point to stress is that it is better to involve your lawyers early on in any HSE request for documents. If in doubt about the HSE’s right to compel production of a document (for example because you think the document is privileged), if you think a privileged document may have been disclosed in error, or if you have questions about other issues, check with your lawyers.
The purpose of this note is to give you general information; it is not written with any particular case in mind, and may not therefore cover the issues which are most relevant in your case. Do not hesitate to ask questions. If you believe that you might be involved in an HSE investigation, it is sensible to do some planning to identify what documents are most likely to be relevant and who relevant witnesses might be. If you are caught up in an investigation without warning, it may still be possible to organise an orderly response, and we therefore recommend that you contact a legal adviser immediately.
This briefing represents outline advice for clients facing HSE investigation. This is generic advice which is not specific to any particular matter.