Organisations and sole traders operating in the forestry sector face a robust regulatory environment. We have seen a rise in the number of regulatory investigations in relation to incidents in the sector. In that context, it is more important than ever for those operating in the sector to understand the role of regulators, their powers, and how to manage a regulatory investigation.

1. Who are the key regulators?

    The key regulators are the Scottish Environment Protection Agency (SEPA) and the Health & Safety Executive (HSE).

    SEPA's focus is on environmental concerns, for instance damage caused by the use of prohibited pesticides and other chemicals such as sprays.

    HSE's focus is on unsafe practices in a working environment, including incidents involving falls from height and concerns around the use of machinery.

    For wildlife crime, Police Scotland has a specialist team and will often work with HSE and SEPA to investigate suspected breaches.

    2. What are the regulators' powers of investigation?

      Broadly speaking, the regulators' powers extend to a right of entry on land in order to carry out searches, and to seize items and samples for examination. There are also powers to compel individuals to answer questions at interviews.

      If you become subject to a regulatory investigation, it's important to take advice on the extent of the legal powers at the disposal of the regulators. 

      3. What happens if a breach is identified?

        Wildlife and health and safety offences can result in criminal prosecution. In Scotland, the sole body for raising criminal prosecutions is the Crown Office and Procurator Fiscal Service. They review investigation reports from Police Scotland / HSE / SEPA and decide whether (1) there is sufficient evidence to bring a prosecution and (2) it is in the public interest to prosecute.

        In the event of a successful prosecution, organisations can be fined, and individuals can be fined and / or imprisoned.

        For certain wildlife and health and safety offences, employers can be prosecuted, as well as the principal wrongdoer.

        It's also worth noting that regulatory investigations can have additional consequences. For instance, concerns around the use of firearms and shot guns can result in the revocation of firearm and shot gun certificates even where no criminal prosecution takes place.

        4. What should you do if regulators make contact with you?

          An attendance by regulators can be a challenging experience.

          If you or your employee are contacted by a regulator, you should consider taking immediate legal advice. You can request that the regulator pauses any search or interview until you have discussed matters with your legal representative.

          Whether or not you obtain immediate legal assistance, there are certain steps that any person faced with an attendance by a regulator should take:

          • Be polite and courteous to the officers in attendance on behalf of the regulator(s). Ask them to confirm their names and contact details.
          • Ask the officers about the reason for the attendance – the more detail you can obtain at the outset, the better.
          • Ask the officers to confirm the legal basis for their attendance, to provide any relevant documentation (for instance a search warrant) and ask them to provide questions to you in writing.
          • If you are going to be interviewed under caution, you have the legal right to a consultation with a lawyer beforehand, and to have them present throughout any interview. Make sure you exercise these rights. 

          5. How can you limit the risk of a breach of regulatory obligations?

          By taking several steps to limit the risk of a regulatory compliance failure, you'll limit the risk of a regulatory investigation. They include:

          • Risk assessing your operations – where do the regulatory compliance risks arise? How can they be mitigated?
          • Implement a regulatory compliance policy – the policy should explain how owners, employees and other associated persons should conduct themselves to avoid breaches of regulatory obligations;
          • Provide training – ensure employees, contractors and other associated persons are aware of their regulatory obligations, the steps they should take to avoid a breach and the action they should take if they have a concern.

          This article first appeared in Forestry and Timber News  (page 37).

          Contributors

          Paul Marshall

          Partner

          Ramsay Hall

          Legal Director