Health and safety cases (6)
Section 20, Health and Safety at Work, etc., Act 1974
Section 20 sets out, in detail, the powers of Health and Safety Executive inspectors. Cases on the interpretation of section 20 include the following:
R (Wandsworth London Borough Council) v South Western magistrates’ court (2003)
W, in the course of investigating the training and competence of a company’s forklift truck drivers, brought a charge against the company’s health and safety manager. W alleged that the manager had failed to answer questions which had been put to him in writing by an inspector exercising his powers under section 20. At first instance, the district judge ruled that section 20 related to questions and answers at a face-to-face interview but not to questions being put on writing. He dismissed the case and W applied for judicial review of this decision.
The application was granted. The High Court made the following points:
Section 20 did not specify that questions had to be put on a face to face basis, or that they could not be submitted in writing.
The section, viewed as a whole, contained wide powers and should be widely interpreted.
A inspector had no power of entry into premises other than those within the area of the local authority by which he was employed.
There was no power to require an individual to be interviewed under caution.
Section 20 should be interpreted as permitting an inspector to pose and receive written questions and answers.
HM Advocate v Shell UK Ltd (2003)
Shell UK was charged with contraventions of the 1974 Act arising from an incident involving the uncontrolled release of hydrocarbons on an offshore installation on 30 December 2000. In January 2001 the HSE carried out investigations. On 19 December 2001 the HSE informed Shell by letter that a report had been sent to the procurator fiscal. Shell was not informed that it was to be prosecuted until the indictment containing the allegations was served on 4 March 2003. The trial was scheduled for 22 April 2003. A special sitting was needed and the likely date for that was November 2003. On behalf of Shell it was argued that its rights under Article 6 of the European Convention on Human Rights had been breached because of unreasonable delay. The case was dismissed at first instance. The prosecution appealed against this decision, arguing that the appropriate starting point was the service of the indictment on 4 March 2003 and that the letter from the HSE was not an official notification of any allegation that a crime had been committed. It was also argued that the HSE was not a competent authority because it was not an integral part of the criminal justice system.
On behalf of Shell it was argued that the relevant staring point was the date of the incident because the nature of the occurrence was such that the prospect of having committed an offence was present from the outset. Further, while the letter from the HSE did not need to say that there was going to be a prosecution, it amounted to an intimation that Shell was liable to be prosecuted. Further, the HSE was a competent authority because of the width of its powers.
Section 20 gave rise to investigations which were more formal in many ways than those carried out by the police. Since the circumstances of a police interview could be deemed sufficient to trigger the period to be considered, the commencement of an HSE investigation could do the same.
The Scottish High Court decided the following:
Because there was no official notification prior to the service of the indictment, the appropriate starting point for the period to be considered for the reasonable time provisions in Article 6 of the European Convention was 3 March 2003.
What constituted a “reasonable time” differed according to the particular facts and circumstances of each case, but it was clear that the starting point could not be reached before there was a communication to the accused that it was being alleged that the accused had committed a criminal offence. The letter of 19 December could not be read as implying such a message.
The HSE was not a law enforcement service. It had no power to institute or determine upon prosecution. It would therefore be difficult to see how it could be characterised as an authority having the competence to notify a suspect that it was alleged that the suspect had committed a criminal offence.