If your organisation is being investigated by the Health and Safety Executive (HSE), it is essential to take the process seriously. Failure to invest in expert advice can result in a prosecution being brought and, ultimately, may lead to serious reputational damage.
As an experienced health and safety barrister, I can manage your health and safety investigation from beginning to end. Not only will I provide an emergency response should an incident occur, I will represent you if you are questioned in an HSE interview under caution (also known as a PACE interview).
I am highly flexible and advise and represent clients from all over the UK.
When will the HSE or local authority conduct an investigation?
If there has been an accident at your workplace or someone has made a complaint, the HSE or local authority will normally conduct an investigation.
The purpose of the investigation is to gather evidence surrounding the facts of the case, identify compliance failings that caused the incident, uncover any breaches of health and safety regulations, and take enforcement action if required.
What happens in an HSE/local authority interview under caution?
If your organisation or a person in it is suspected of breaching health and safety legislation (normally the Health and Safety at Work Act 1974), the investigating body may invite you to attend an interview under caution. These interviews are recorded, and information contained in them may be used in evidence if formal prosecution is brought.
If it is your company, you will need to nominate an individual to attend the interview under caution and answer questions on behalf of the business.
It is imperative that you take interviews under caution extremely seriously. I am highly acquainted with the interview under caution process and, should you engage my services, will ensure the interview is conducted fairly, and your interests and rights are protected at all times.
Will an investigation always lead to a health and safety prosecution?
Not necessarily. The inspector will not make the decision on whether your organisation or a person in it will be prosecuted. Instead, they will prepare a report for the Approval Officer assigned to the case who will decide whether or not a prosecution should be brought.
All prosecutors, whether the Crown Prosecution Service, HSE, or local authorities, are bound by the Code for Crown Prosecutors (January 2013) and Practice note, Code for Crown Prosecutors, when they consider whether to commence a criminal prosecution.
A two-stage test must be satisfied:
- The evidential stage – the Approval Officer must be satisfied that there is “sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge”. The robustness of any defence must also be considered. This is an objective test based on the evidence before the Approval Officer at the time.
- The public interest stage – if the evidential stage is satisfied, the Approval Officer must then decide whether it is in the public interest to prosecute the matter. The more serious the health and safety breach, the less weight will be attached to the public interest element.
Specifically related to the public interest stage in health and safety prosecution, the HSE Enforcement Policy Statement states the following factors will act favourably towards prosecution:
- death was a result of a breach of the legislation;
- the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it;
- there has been a reckless disregard of health and safety requirements;
- there have been repeated breaches which give rise to significant risk, or persistent and substantial poor compliance;
- work has been carried out without, or in serious non-compliance with, an appropriate licence or safety case;
- a duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk;
- there has been a failure to comply with an improvement or prohibition notice, or there has been a repetition of a breach that was subject to a simple caution;
- false information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk;
- inspectors have been intentionally obstructed in the lawful course of their duties.
Can I influence the decision to prosecute?
One of the best things you can do to prevent an investigation leading to a prosecution is to instruct an experienced health and safety lawyer or barrister to advise and represent you.
Other ways you can lessen the chance of being prosecuted include:
- fully cooperating with the investigators.
- providing information to the investigator as to why formal enforcement is unnecessary.
- If appropriate, attend an interview under caution with a legal representative, so you can provide investigators with key information regarding the incident.
If you and/or your organisation is facing a health and safety investigation, I will provide the advice and representation required to minimise the risk of prosecution and protect your commercial reputation.