Whenever serious incidents do occur (whether or not they are subsequently subject to HSE investigation) companies must seek to ensure that their policies and systems are designed to quickly and effectively respond; in order to minimise any potential likelihood of repetition and to properly manage any potential consequences for affected parties.
Where the Health and Safety Executive do carry out investigations, they have the potential to become very stressful and difficult to manage. There is often little time to think properly about the incident being investigated and how best to formulate the company’s responses.
Some investigations will, ultimately, result in prosecutions and, following the introduction of the 2016 Health and Safety Sentencing Guidelines, the consequences of conviction are now far more severe than previous penalties had been (potentially more than 10 times higher).
HSE inspectors are given wide ranging powers under the Health and Safety at Work Act 1974; which include powers of entry and the power to compel answers to their questions. Although the primary purpose of these sections of the legislation is to empower inspectors to gather sufficient information to satisfactorily complete their investigations; the information will also be used as evidence where it is determined that a prosecution is appropriate.
In light of the potential penalties, it is imperative that companies do everything within their powers to both dissuade prosecutions and ensure that any defences available to duty holders are not prejudiced by the conduct of their nominated persons.
“Whilst every precaution should be taken to avoid health and safety incidents; accidents are an unfortunate and inevitable fact of life.”
HSE inspectors often request that duty holders submit to an interview under caution. Such requests should be treated with the utmost care because there is no protection against self-incrimination and answers given during an interview under caution can (and will) be used as evidence in criminal proceedings.
The best evidence the HSE is able to rely upon in support of a prosecution is often the transcript of an interview under caution. Duty holders should proceed very cautiously in response to any invitation to interview under caution and, where possible, should always follow properly defined guidance for doing so:
- Inform your legal adviser (if they have not already been instructed) upon receipt of an invitation to interview under caution BEFORE responding to the HSE;
- Select your nominated person carefully – the company will be asked to nominate a person to attend the interview on its behalf. Clearly it is very important to ensure that the most suitable senior person (usually a director) is nominated and that they are properly prepared in advance of the interview;
- Consider whether a suitable written response to the HSE may be sufficient to avoid the necessity for an interview under caution;
- Consider whether to request that the interview be conducted by letter rather than in person. If such a request is accepted by the HSE, it will ask the questions it wishes to be answered by letter and the nominated person will also provide their answers by letter;
- Request pre-interview disclosure asking the HSE to identify any specific documents it intends to refer to during the interview;
- Prepare for the interview by ensuring that a detailed investigation of the incident has already been carried out and that the nominated person has full knowledge of all relevant facts and, where applicable, documentation (which should be available during the interview and, where appropriate, copied for the inspector to assist the investigation).
When attending any interview under caution, duty holders are well advised to ensure that their legal representative is also present. Furthermore, the nominated person should always follow a number of golden rules:
- Just answer the questions – don’t ramble and avoid the temptation to try and outsmart / second guess the interviewer. Remember that the interview will be recorded and every response will be available to be presented (word for word) as evidence;
- Stick to the facts – duty holders are compelled to answer questions about the circumstances and background of an incident; not to provide opinions as to their own culpability or that of others;
- Don’t make admissions – it is the HSE’s responsibility to prepare prosecutions and gather sufficient evidence to secure convictions. There is no benefit to be gained by a duty holder admitting guilt during an interview under caution (any sentencing benefit to be derived from an early guilty plea can be obtained at a later stage).
Even where it appears that clear and obvious guilt can be inferred from a factual account provided during interview, making any express admissions is most likely to simply encourage prosecutions and harm any potential defences that may still be available. It is not unusual for additional facts to come to light after interviews that might set the matter in an entirely new light; however, if admissions have already been made, it can be very difficult to resile from them.
Refusing to make admissions is very different from refusing to cooperate. All duty holders must endeavour to fully cooperate with HSE investigations. This will include:
- Providing a comprehensive factual account of the incident under investigation;
- Explaining the procedures / systems under which the duty holder operates;
- Confirming any lessons that have been learned by the duty holder; 4. Detailing measures taken in response to the incident.
Being obstructive or difficult in respect of an investigation is very likely to have the opposite effect of that which is desired by the duty holder, i.e. it will increase rather than reduce the likelihood of prosecution. Find out more about HSE Investigations from the Health and Safety Executive website.
ORJ’s Construction Partner, Michael Smyth has more than 10 years’ specialist litigation experience. He has completed and passed the RICS Diploma in Adjudication and is building an ever-expanding portfolio of work for a diverse range of construction clients.