Our ihalf day interactive seminar this year  entitled 'Keeping Up the PACE!'  was held on Wednesday 9 September at The Britannia Hotel, Palatine Rd, Didsbury, Manchester, M20 2WG, commencing with lunch at 12 noon

Report

The event was chaired by Terry Moran, head of the Law School at Leeds Metropolitan University.

Helen Devery, Partner, Berrymans Lace Mawer
An Inspector Calls

A number of factors suggest that there will be a substantial increase in prosecutions over the coming months, which includes HSE targets, a plateau in the number of fatalities, the Corporate Manslaughter and Corporate Homicide Act 2007 coming into force, the introduction of 40 new inspectors and the HSE/HSC merger.

Therefore, Ms Devery’s presentation focused upon what a company should do if a serious incident or accident should occur within their business and if they are investigated by a regulatory body (police, HSE, Local Authority etc) as a result.

Ms Devery advised that a number of steps should be taken immediately post incident which include:

• Cordon off the site of the accident/ take control.
• Make a list of those people on site
• Ascertain a list of probable “senior managers” who may be interviewed by the regulatory body
• Take 3 copies of relevant documentation
• Take photographs
• Contact your marketing department/ press agency
• Contact insurers (and lawyers)
• Instigate an internal investigation

The importance of an early, thorough internal investigation was emphasised and it was highlighted that any such investigation may attract privilege and therefore may not need to be disclosed to the regulatory body.

Ms Devery advised that the regulatory body’s investigation will usually commence with a site investigation and the obtaining of statements. Relevant individuals are then likely to be invited to interview. Once sufficient information has been gathered, a representative of the company and in some cases, individuals, may be invited to attend a PACE interview which is an interview under caution. Once the investigations have been completed a report will be prepared for the principal inspector who will make a decision on prosecution.

The regulatory bodies have a number of powers to assist them with their investigation which include the power of entry; power on entry; power to seize; power to interview; power to require production or copies of documents; and power to require assistance.
Only the police have the additional power of arrest.

Atiyah Malik, Partner, Berrymans Lace Mawer
Keeping PACE - the Interview Process

Ms Malik’s presentation on the interview process was aided by an interactive group session which was lead by Carole Conroy, Senior Lecturer at the University of Salford. This allowed participants the opportunity to take part in a mock PACE interview and to consider how they would react in such a situation.

Ms Malik’s presentation covered the different types of statements which may be requested by a regulatory body, the first being section 9 statements. These are provided voluntarily in compliance with section 9 of the Criminal Justice Act 1967. If such a statement is provided the statement maker should ensure they are completely satisfied that the document accurately reflects their evidence before signing it. Any such evidence can be used in court without the statement maker’s attendance.

Ms Malik went on to advise on 20 Statements. These are compulsory statements provided where the inspector/officer engages their powers under section 20(2)(j) of the Health and Safety at Work Act 1974. It is an offence to refuse to provide such a statement. Any section 20 statement cannot be used in court as evidence and cannot be used against the statement maker, however, the contents can still be used against their employer.

Ms Malik ended with practical advice on interviews under caution. If a company is suspected of committing an offence, a representative should be questioned in a formal interview under caution in accordance with the provisions of the Police and Criminal Evidence Act 1984. If the interview is to be conducted by a HSE or Local Authority inspector the company cannot be obliged to attend, only the police have powers of arrest so as to allow for prompt and effective investigation.

Ms Malik advised that the company is entitled to legal representation given that it will be questioned as a suspect. The legal representative will intervene when necessary and will be familiar with the questioning techniques and powers of the regulators to ensure a level playing field. Ms Malik emphasised the importance of being fully prepared for the interview as any fact which the company later intends to rely upon in their defence must be raised at this stage. It is also an opportunity for the company to put forward any factors in mitigation of the offences committed.

Ms Malik rounded up with her top tips for survival!

DO….

• Take legal advice at an early stage after the incident
• Consider the need to have representatives during voluntary and s.20 interviews
• Make a proper record of all documents given to the inspectors
• Check your insurance policies to make sure that indemnity is provided for the cost of legal representation during the investigation and any subsequent prosecutions
• Try to ensure that, where a company is under investigation, it speaks through one nominated individual to avoid confusion

DON’T...

• Forget the fact that the inspectors are investigating with a view to taking enforcement action.
• Allow employees to be interviewed without assurance that they will be provided with a copy of the statement
• Agree to be interviewed under caution without legal representation
• Do anything that might amount to an obstruction

Derek Fabby, MOHSG Chair and Estates Manager at Trafford College
Managing the Stress of PACE and People

Mr Fabby reminded the group of the human element of any accident/incident focusing upon the trauma and stress which such incidents can cause to not only those directly involved but also those who witnessed it and those involved in the immediate aftermath.

Mr Fabby spoke about how this can be carefully monitored and managed by employers and he drew attention to the factors which may indicate that an employee is under stress. The indicators to look out for include:
• Changes in eating habits
• Increased smoking, drinking or drug taking ‘to cope’
• Mood swings affecting behaviour
• Twitchy, nervous behaviour
• Changes in attendance such as arriving later or taking more time off.
Mr Fabby advised on the things that employers can do to assist employees during what is likely to be a very stressful time for many following an accident and which include arranging counselling if appropriate. Employees can also be encouraged to do things to help themselves which include:
• Getting enough exercise - this is known to reduce stress and can help individuals to feel better.
• Learn relaxation techniques - this can help individuals to sleep better and relieve stress-related physical pains such as stomach pains and headaches.
• Not to drink too much alcohol or caffeine, or smoke. Instead of helping, these stimulants will increase stress levels.
• Eat regular meals and a healthy, balanced diet with plenty of fruit and vegetables.


Thanks go to those who made the event successful.