A new Code of Practice concerning powers of entry came into force in April 2015. The Code forms part of The Protection of Freedoms Act 2012.
There are over 1,000 current powers of entry contained within UK primary and secondary legislation. The Code gives guidance and sets out considerations that apply before, during and after powers of entry are exercised. They include guidance on the need to minimise disruption to a business and they are intended to ensure greater consistency in the exercise of powers of entry.
Powers of entry might be exercised by regulators to undertake inspections or search for evidence during an investigation. Section 20 of the Health and Safety at Work Act 1974 (the HSWA) provides HSE inspectors with a wide range of powers including the power to enter premises. Inspectors are allowed to enter premises for the purposes of enforcing the HSWA and the relevant statutory provisions. The HSWA states that they may only enter at a ‘reasonable time’ unless they think there is a situation which may be dangerous.
Similarly, section 108 of the Environment Act 1995 gives the Environment Agency officers wide powers of entry to carry out an inspection to ensure that relevant environmental laws are not breached. Officers are required to produce evidence of their authority before exercising their statutory powers and entry to premises must be at a reasonable time unless they believe it is an emergency.
The Code applies to any person exercising a power of entry or associated power. That person must have regard to this new Code before, during and after exercising powers of entry. This is unless the exercise of that power is subject to another statutory code of practice, for instance the Police and Criminal Evidence Act (PACE) Code B. There will be occasions when HSE inspectors or Environment Agency officers are accompanied by a police officer when exercising a power of entry. In the majority of these circumstances, the PACE Code will apply.
The Code requires the inspector to generally provide a Notice of Powers and Rights to an occupier. This notice will include information such as whether the entry is conducted with or without a warrant, the powers of entry used, the occupier’s rights and where a copy of the Code can be obtained.
The Code also states that where it is appropriate and practicable to do so, reasonable notice should be provided to the occupier. Although the Environment Act 1995 and the HSWA both state that entry can be made at a reasonable time, the Code provides further clarity. The Code states that reasonable notice is said to be usually not less than 48 hours. The Code is to be used in conjunction with legislation such as the HSWA. As such, inspectors may still be permitted to enter premises without notice if they think there is a dangerous situation.
The aim of the Code is to ensure that powers of entry achieve the right balance between the need to enforce the law and ensure public protection, and the need to provide sufficient safeguards to rights of the individual.
If you believe that the rules governing powers of entry have been breached please contact our Business Crime, Disciplinary and Regulatory Defence Solicitors at Slater and Gordon UK. Call us on freephone 0800 916 9054 or contact us online and we will call you.
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