22 May 2015

PACE interviews — a practical approach

As a company, if you receive an invitation from the HSE or another safety enforcement agency to an interview under caution ('PACE interview'). How should you respond? Amongst your options are:

  • Refuse to attend
  • Attend and answer all questions asked
  • Attend, read out a prepared statement and refuse to answer any further questions
  • Attend, answer questions but have a prepared statement to read out if necessary

In our recent experience representing an organisation invited to a PACE interview, the decision to attend proved invaluable to the outcome of the investigation: the HSE decided not to prosecute, citing the chance to meet company representatives in person and assess their attitude to safety as a major factor in the decision. The HSE in this case used the opportunity to meet with senior company representatives to talk informally about a number of other investigations. It may also be that nervousness on the part of company representatives in the face of HSE questioning can come across as an understandable human response, and therefore more genuine than a pre-written document. A PACE interview reduces the control exerted by legal representatives, but in the right circumstances this can have a positive effect by allowing the HSE to feel that they engage with companies directly.

Refusal to attend

There is no obligation on a company suspected of health and safety breaches to attend a PACE interview, so companies can refuse to attend. The advantages of not attending are:

  • PACE interviews are recorded and responses to questions may be used as evidence against the company in any subsequent criminal proceedings
  • Company representatives risk giving inaccurate or incomplete answers under pressure during an interview
  • Legal representatives are limited during an interview in their ability to assist their clients with answers

However, when deciding whether or not to attend, companies should bear in mind that:

  • If the company later pleads guilty or is convicted of the offence at trial a refusal to attend could be brought to the ourt's attention during sentencing
  • Co-operation or lack of co-operation with an HSE investigation can lead to lighter or heavier sentences

Companies which decline to attend a PACE interview are instead likely to be invited to make written representations to the HSE, which have as advantages:

  • They give an opportunity to provide a full and measured response and
  • They can be carefully drafted in line with legal advice

However, the disadvantages of written responses are:

  • They are time-consuming
  • They are therefore likely to cost more in legal fees and
  • They can come across to the HSE as being less open and co-operative
  • They can be seen as 'the lawyer's pen'

The HSE website lists as potential advantages of attending a PACE interview:

  • An opportunity for companies to answer the allegations against them and to give their own account
  • The chance to supply information which may be relevant to the HSE decision whether or not to prosecute
  • Companies can be seen to be co-operating with the investigation – this can positively influence their relationship with the HSE during the investigation and lead to a reduction in sentence in the event of a later guilty plea or conviction

What this means for you

From a practical viewpoint, a decision whether or not to attend a PACE interview needs to be taken in each individual case on the merits. Companies should seek legal advice at the earliest opportunity as a means of working out the most appropriate response to a PACE interview request from the HSE.

Category: Article