The Hidden Dangers of Exercising Your Right to Silence

It might be thought that a person who is being questioned by regulators in respect of offences that they or others may have committed would have the right to silence. At the beginning of any such interview, which is essentially an evidence-gathering exercise, a suspect should be given the standard ‘caution’ which states:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”

On the face of it, the caution gives a suspect a choice, albeit subject to the qualification that silence might lead to an adverse inference being taken in respect of any defence later raised, should the matter go to Court. A plumber who was suspected of having carried out dangerous gas work while he was not qualified to do so might therefore have thought that he was on relatively safe ground when he was questioned by a HSE inspector.

However, he was not familiar with Section 33 of the Health and Safety at Work Act 1974.

What happened?

Luke Rodgers was alleged to have carried out unlawful gas work to replace a boiler at a house. He was not qualified to do gas work and was not a registered Gas Safe engineer. It was alleged that – unfortunately – he left the new boiler in such a dangerous condition that when a Gas Safe registered engineer came to look at it, he had to disconnect it from the mains gas supply in order to make it safe.

The HSE soon found out about Mr Rodgers’ part in the incident, and he was invited to attend an interview under caution.

During the interview, he said that he had only been paid to install the boiler, not connect it to the gas supply. He said that he had arranged for a friend, who was supposedly a qualified gas engineer, to carry out the job of connecting the boiler to the gas main. He also claimed that another friend had helped him out with general labouring at the property when the boiler was being installed.

Despite giving this account, when the inspector pressed him for the identity of either friend, Mr Rodgers was unwilling to provide that information. As a consequence, he was charged with an offence under Section 33 (1)(e) of the Health and Safety at Work Act 1974, since his silence prevented the inspector from following reasonable lines of enquiry as part of the investigation.

The matter came before the Magistrates’ Court and Mr Rodgers appeared to have little choice but to plead guilty to a breach of Section 33(1)(e) of the Act. As a result, he was fined £583 and ordered to pay £1,500 in costs.

What Does the Law Say?

Section 33 of the Health and Safety at Work Act 1974 sets out the various offences that can be committed under the Act. Specifically, according to Section 33 (1)(e) it is an offence for a person to contravene any requirement imposed by an inspector under Section 20 or Section 25. Section 20(2) broadly sets out the powers of a Health and Safety Executive inspector and at Section 20(2)(j) he can require any person whom he has reasonable cause to believe can give any relevant information relevant to any investigation or examination to answer such questions that the inspector thinks fit to ask. Section 25 deals with powers to deal with causes of imminent danger.

It is also noteworthy that section 33(1)(f) makes it an offence to prevent or attempt to prevent any other person from appearing before an inspector or from answering any question to which an inspector may require an answer.

Mr Rodgers would be caught be either by Section 33(1)e or Section 33(1)(f) in keeping quiet about the others involved and not having them subjected to questioning.

Penalties

Schedule 3A of the Act sets out the following penalties for the offences under 33 (1)(e) and section 33 (1)(f) as:

• Penalty on conviction at the Magistrates’ Court: Imprisonment for a term not exceeding 12 months or a fine not exceeding £20,000 or both; or

• Penalty on conviction at the Crown Court: Imprisonment for a term not exceeding two years or a fine, or both.

There is no indication of whether Mr Rodgers had a legal adviser during his interview. His responses may suggest not.

Anyone who is invited to an interview under caution really needs to think seriously about getting legal advice beforehand and to have a legal representative there during the interview itself.

This may save someone from making serious mistakes during the interview that could end up getting them into even worse trouble than they were already in.