An Inspector Calls

19 March 2019

Chloe Barton, ORR Legal Adviser, explains what happens when people defy Railway Inspectors.

Chloe Barton, ORR Legal AdviserHer Majesty’s Inspectors of Railways have wide-ranging powers granted by virtue of s.20 of the Health and Safety at Work etc Act 1974. These powers include the right to demand that a dutyholder hands over documents for inspection when asked to do so.

In practice it is not common for an Inspector to have to use their s.20 powers. Most dutyholders and persons under investigation comply readily with requests to provide documents for inspection, to allow for photographs and measurements to be taken or to leave premises undisturbed for the purposes of inspection. ORR’s Inspectors hold warrant cards but they rarely have occasion to produce them.

Despite this we recently had to prosecute a dutyholder for contravening s.20, for the first time since the Office of Rail Regulation – ORR’s predecessor – came into being in 2004. An inspector wrote to a dutyholder asking for a document that was referred to in a defence expert report in an ongoing case but that had not been seen by ORR’s expert for the prosecution.

The request explicitly outlined the Inspector’s s.20 powers and warned that failure to comply could constitute a further criminal offence. But the reply from the dutyholder’s legal team was clear; the documents would not be provided and ORR were acting outside of their powers to request such documents.

Our day in court

So, on 6 February the matter was argued at Newcastle Crown Court and the Judge duly dismissed the dutyholder’s abuse of process argument, making it clear in his ruling that it was simply wrong to suggest that because the company had already been charged the investigation stage, and therefore the opportunity to rely on s.20 powers, was at an end. In failing to comply, the dutyholder demonstrated a degree of an obstruction of justice.

There is a continuing duty on an enforcing authority to investigate matters that point towards guilt, or away from it. Dutyholders will always have the opportunity to contest the admissibility of any evidence acquired under s.20, such opportunity exists under the well-known provisions of s.78 PACE 1984. However, where a request is made under s.20 the message is clear; comply or face prosecution. In this particular case the failure to comply cost the dutyholder the sum of £33,500 in a fine imposed by the Crown Court.