Wandsworth, R (on the application of) v South Western Magistrates Court

Neutral Citation Number: [2003] EWHC 1158 Admin IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/3813/2002 Royal Courts of Justice Strand London WC2 Thursday, 1st May 2003 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE PITCHFORD - - - - - - - THE QUEEN ON THE APPLICATION OF LONDON BOROUGH OF WANDSWORTH (CLAIMANT) (DEFENDANT) -v- SOUTH WESTERN MAGISTRATES COURT - - - - - - - Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS EVANS appeared on behalf of the CLAIMANT The DEFENDANT did not appear and was not represented - - - - - - - J U D G M E N T (As Approved by the Court) - - - - - - - Crown copyright© SMITH BERNAL WORDWAVE Thursday, 1st May 2003 1. 2. 3. 4. 5. 6. 7. LORD JUSTICE SCOTT BAKER: This case originally came before the court as a claim for judicial review of a District Judge's refusal to state a case on the ground that the claim was frivolous. However, it has proceeded on the basis of a challenge to the original decision of the District Judge, which it is alleged was wrong in law. Such a procedure, adopted by Richards J on granting permission, flows from the decision in Sunworld Ltd v Hammersmith and Fulham London Borough Council [2002] All ER 837 and has behind it the obvious good sense of expedition and the saving of costs. The substantive point in this application is the meaning and ambit of section 20(2)(j) of the Health and Safety at Work Act 1974 ("the Act"). On 11th February 2002, the claimant local authority laid an information against Mr Warne, the Health and Safety Manager of Travis Perkins Limited, alleging a failure by him to answer questions put to him by the Health and Safety Inspector contrary to section 20(2)(j) and 33 of the Act. At the trial before District Judge Grant, the defendant, Mr Warne, raised as a preliminary issue the question whether under this section questions could be put in writing, as opposed to face to face only. The District Judge asked himself two questions: did the section envisage a face to face interview, which he answered yes; and did the section anticipate questions and answers in writing, which he answered no. Section 20(2)(j) is used to gather information in carrying out both formal and informal enforcement action under the Health and Safety at Work Act 1974. There are over 400 local authorities in England and Wales and they are required to make arrangements for investigations under section 18 of the Act. This is particularly relevant with regard to the investigation of accidents. Information may be required from a wide variety of sources over a prolonged timescale; for example, from employees, contractors, peripatetic workers, witnesses, competent persons, company directors and trade unions. There are instances where people may have moved on and where they work considerable distances from the premises within the particular field of responsibility of the Borough concerned. An example arises in this case because the London Borough of Wandsworth and Travis Perkins' head office is in Northamptonshire. It is said to be standard practice amongst local authorities and the Health and Safety Executive to request information about who are the responsible people, company details, and so forth, by letter. The only power to do this, if there is any power -- and that is what this case is about -- is to be found in section 20(2)(j) of the 1974 Act. 8. Section 19(2)(b) says that an inspector shall: "... be entitled to exercise the powers so specified only within the field of responsibility of the authority which appointed him". 9. The field of responsibility is set out mainly in the Health and Safety (Enforcing Authority) Regulations 1989 and regulation 3 says: "where the main activity carried on in non-domestic premises is specified in Schedule 1, the local authority for the area in which those premises are situated shall be the enforcing authority for them". SMITH BERNAL WORDWAVE 10. 11. 12. Inspectors have no power of entry outside the Borough limits and no power to require any persons to come to them in order to attend an interview at premises within the Borough. It is submitted that inability to use section 20(2)(j) in writing would severely impact on an authority's capacity effectively to investigate and enforce Health and Safety provisions. In the present case, a number of routine inspections took place at various Travis Perkins branches and the Environmental Officer of the claimants became concerned about the adequacy of the training and competence of Travis Perkins forklift truck drivers. Thereafter, what followed in summary was as follows. 13. A letter of 23rd February 2001 was sent to the Area Health and Safety Adviser, Mr Simms, outlining the concerns and requesting information as to the proposed remedial action. On 9th March 2001, a letter was received from Mr Simms indicating that the matter was being dealt with by head office. It was copied to Mr Warne, the Health and Safety Manager. On 4th April 2001, a letter was received by Mr Hurles from Mr Warne in reply to his original request of 23rd February. On 17th April 2001, a reply was sent to Mr Warne and copied to the Managing Director, Mr McKay, and a director, Mr Gordon, outlining the inadequacies of the previous response and asking for a more detailed response. 14. On 26th July 2001, there was a further inspection of a Travis Perkins branch and there followed a letter with a copy of the letter of 17th April, and they were sent to Mr Warne and copied to Mr McKay. The letter requested their response to the previous letter, citing the powers of section 20 of the 1974 Act and informing them that legal action would follow in the event of non-compliance. 15. A holding response was received dated 3rd August. That was from Mr Warne, saying he would contact the claimants' office to arrange a meeting, but never thereafter did he make that contact. On 9th October, Mr Warne was sent a letter asking him to attend a formal interview under the Police and Criminal Evidence Act (something which, incidentally, the claimants had no power to insist on), but they never received any reply and, having finally lost patience, the present proceedings followed in February 2002. 16. The information alleged that Mr Hurles, being the Health, Safety and Environment Manager of Travis Perkins Limited, was a person whom the Health and Safety Inspector had reasonable cause to believe to be able to give information relevant to an investigation into the adequacy of lift truck training, and that he had failed to answer questions put by the inspector, as required by section 20(2)(j) of the 1974 Act, and that he was consequently in contravention of section 33(1)(e) of the same Act. 17. The critical section is, as is apparent, section 20. Subsection (1) provides: "Subject to the provisions of section 19 and this section, an inspector may, for the purpose of carrying into effect any of the relevant statutory provisions within the field of responsibility of the enforcing authority which appointed him, exercise the powers set out in subsection (2) below". 18. Section 19 gives enforcing authorities power to appoint inspectors and says how the appointment is to be effected. The inspector's powers are set out in subsection (2) of section 20: "(2) The powers of an inspector referred to in the preceding subsection are the following, namely -- SMITH BERNAL WORDWAVE (a) at any reasonable time (or, in a situation which in his opinion is or may be dangerous, at any time) to enter any premises which he has reason to believe it is necessary for him to enter for the purpose mentioned in subjection (1) above; (b) to take with him a constable if he has reasonable cause to apprehend any serious obstruction in the execution of his duty; (c) without prejudice to the preceding paragraph, on entering any premises by virtue of paragraph (a) above to take with him -- (i) any other person duly authorised by his (the inspector's) enforcing authority; and (ii) any equipment or materials required for any purpose for which the power of entry is being exercised; (d) to make such examination and investigation as may in any circumstances be necessary for the purpose mentioned in subsection (1) above; (e) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything therein, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (d) above; (f) to take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (d) above; (g) to take samples of any articles or substances found in any premises which he has power to enter, and of the atmosphere in or in the vicinity of any such premises; (h) in the case of any article or substance found in any premises which he has power to enter, being an article or substance which appears to him to have caused or to be likely to cause danger to health or safety, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is in the circumstances necessary for the purpose mentioned in subjection (1) above); (i) in the case of any such article or substance as is mentioned in the preceding paragraph, to take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely -- (i) to examine it and do to it anything which he has power to do under that paragraph; (ii) to ensure that it is not tampered with before his examination of it is completed; (iii) to ensure that it is available for use as evidence in any proceedings for an offence under any of the relevant statutory provisions or any proceedings relating to a notice under section 21 or 22; SMITH BERNAL WORDWAVE (j) to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (d) above to answer (in the absence of persons other than a person nominated by him to be present and any person whom the inspector may allow to be present) such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers; (k) to require the production of, inspect, and take copies of or of any entry in -- (i) any books or documents which by virtue of any of the relevant statutory provisions are required to be kept; and (ii) any other books or documents which it is necessary for him to see for the purposes of any examination or investigation under paragraph (d) above; (l) to require any person to afford him such facilities and assistance with respect to any matters or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the inspector to exercise any of the powers conferred on him by this section; (m) any other power which is necessary for the purpose mentioned in subsection (1) above". 19. The particular power with which this case is directly concerned is (2)(j). 20. Most but not all of the powers envisage the inspector's attendance at premises. I do, however, draw particular attention to subparagraph (m), which is in my judgment an important sweeping-up provision which clothes the inspector with any other power that is necessary for him to carry into effect any statutory provisions within the field of responsibility of the enforcing authority. 21. Apart from subsection (7), the remaining subsections of section 20 are of no relevance to the present question. Subsection (7), however, provides: "No answer given by a person in pursuance of a requirement imposed under subsection (2)(j) above shall be admissible in evidence against that person or the husband or wife of that person in any proceedings". 22. I regard this as important because it emphasises that (2)(j) is directed towards information gathering, rather than criminal or indeed civil proceedings. This to my mind points towards a wide, rather than a narrow, interpretation of (2)(j). 23. Section 33(1)(e) makes it an offence: "to contravene any requirement imposed by an inspector ..." 24. A person who commits such an offence is liable, on summary conviction, if he commits an offence under (j), to a fine not exceeding level 5 on the standard scale. 25. Returning for a moment to subparagraph (j), the triggering factor of the operation of this paragraph is that the inspector has reasonable cause to believe the person from whom the information is sought is able to give any information relevant to any examination or investigation in section 20(2)(d). SMITH BERNAL WORDWAVE 26. Subsection (2)(d) enables an inspector to make any examination or inspection that is necessary to implement any statutory provision within the area of responsibility of the enforcing authority that appointed him. 27. The words in brackets in (j) -- "(in the absence of persons other than the person nominated by him to be present and any persons whom the inspector may allow to be present)" -- clearly envisage a face to face situation, but in my judgment their purpose is to do no more than ensure that the inspector has the opportunity of speaking to the person who whom he wishes to talk on a one to one basis, rather than being faced with a free for all with a crowd of people. 28. The subsection does not specify that the questions have to be on a face to face basis or that they cannot be submitted in writing. If submitted in writing, the problem envisaged by the words in brackets would not, of course, arise. Furthermore, one poses the question: why should questions and answers not be exchanged in writing without a face to face meeting? There is, it seems to me, no obvious answer to this question, but several reasons why the subsection should permit questions and answers to be given in writing. 29. The inspector is entitled to seek any relevant information. The information sought could be quite wide ranging. It could also include a simple, basic fact, such as: who is responsible for health and safety at your company? 30. Information may be sought from those who are spread over a wide geographical area. A serious accident may have occurred at a site, say, in London, whilst the person who can provide the answers the inspector wants is in, say, Newcastle or Glasgow or Belfast; and, it should be noted, Travis Perkins' office is, as I have mentioned, in Northampton. 31. An inspector has no power to enter premises, except in the area of the local authority that employees him. Thus, on a narrow interpretation, requiring face to face meetings, he could travel miles to see someone whom he regards as relevant only to be refused entry to the premises when he gets there. 32. 33. 34. In my judgment, there are a number of reasons why this section should be construed widely, as is contended for by the claimants. First, the subsection does not specifically exclude questions and answers in writing. Secondly, subsection (2), viewed as a whole, contains wide powers and is obviously intended to contain wide powers. (See especially (2)(m)). Thirdly, inspectors have no power of entry to premises outside their area. Fourthly, there is no power to require an individual to be interviewed under caution, or indeed interviewed at all, and the responses in (2)(j) cannot be used in criminal or civil proceedings. Their purpose is only for investigation. Fifth, there is no practical reason to exclude written questions and answers that have been identified before us and in my judgment there are good, practical reasons for permitting written questions and answers, in particular the saving of time and money. Sixth, a restrictive interpretation would impede local authorities' investigatory powers into health and safety issues. Seventh, the subsection expressly envisages some element of writing, because the person questioned can be required to sign a declaration of the truth of his answers. 35. I interpolate at this point that it is obviously common sense that what is said should be recorded in writing in any event so that there is no question of doubt thereafter. 36. Eighth, many health and safety issues are complex and companies and others may need to make enquiries and to look out documents before they are able completely to answer the SMITH BERNAL WORDWAVE inspector's questions. So it would, in some circumstances, be in their interests to be able to answer in writing after consideration of the relevant material. 37. These factors, when taken together, lead me to the conclusion that, on its true construction, section 20(2)(j) of the 1974 Act permits an inspector to seek and obtain information in writing, as well as face to face. I would accordingly, subject to the views of my Lord, allow this application, quash the order of the District Judge, and direct that the summons be heard by a different tribunal. 38. It would follow that the application to state a case was not frivolous, but no further order is required or would be required in that regard. 39. MR JUSTICE PITCHFORD: I agree. 40. LORD JUSTICE SCOTT BAKER: An order will therefore be made in the terms I have indicated. 41. MISS EVANS: Thank you, my Lord. SMITH BERNAL WORDWAVE