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Public Health etc. (Scotland) Act 2008

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This is the original version (as it was originally enacted).

Investigators' powers

22Powers relating to entry to premises

(1)The powers referred to in section 21(4)(a) are—

(a)subject to section 26, to enter at any reasonable time any premises which the investigator has reason to believe it is necessary to enter;

(b)on entering any premises by virtue of paragraph (a), to take—

(i)any other person authorised by the investigator and, if the investigator has reasonable cause to expect any serious obstruction in obtaining access, a constable; and

(ii)any equipment or materials required for any purpose for which the power of entry is being exercised;

(c)as regards any premises which the investigator may enter by virtue of paragraph (a), to direct that—

(i)those premises (or any part of them) are; or

(ii)any thing in or on them is,

to be left undisturbed (whether generally or in particular respects) for so long as the investigator considers appropriate.

(2)An investigator who enters any unoccupied premises in the exercise of a power conferred by virtue of subsection (1)(a) must leave the premises as effectively secured against unauthorised entry as the investigator found them.

23Other investigatory powers

(1)The powers referred to in section 21(4)(b) are—

(a)to take such measurements and photographs and make such recordings as the investigator considers necessary for the purpose of the public health investigation;

(b)to obtain and to take samples (or cause samples to be taken) of—

(i)any articles or substances found in or on any premises which the investigator has power under section 22 to enter; and

(ii)the air, water or land in, on, or in the vicinity of, the premises;

(c)in the case of any article or substance found in or on any premises which the investigator has power to enter, being an article or substance which appears to the investigator to be the cause of the public health incident, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary);

(d)in the case of any article or substance referred to in paragraph (c), to take possession of it and detain it for so long as is necessary for all or any of the following purposes—

(i)to examine it (or cause it to be examined) and to do (or cause to be done) to it anything which the investigator has power to do under that paragraph;

(ii)to ensure that it is not tampered with before examination of it is completed;

(iii)to ensure that it is available for use as evidence in any proceedings for an offence under any enactment or rule of law;

(e)to—

(i)require the production of (or, where the information is recorded electronically, the furnishing of extracts from) any records which it is necessary for the investigator to see for the purposes of the investigation; and

(ii)inspect and take copies of, or of any entry in, the records;

(f)to make such examination and investigation as may in the circumstances be necessary.

(2)Where an investigator proposes to exercise the power conferred by subsection (1)(c), the investigator must, if so requested by a person who at the time is present on the premises and has responsibilities in relation to those premises, cause anything which is done by virtue of that power to be done in the presence of that person.

(3)Before exercising the power conferred by subsection (1)(c), an investigator must consult—

(a)such persons having duties on the premises where the article or substance is to be dismantled or subjected to the process or test; and

(b)such other persons,

as appear to the investigator to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which the investigator proposes to do (or cause to be done) under the power.

(4)The information which a person may be required to provide under subsection (1)(e) includes information which, although it is not in the possession of that person or would not otherwise come into the possession of that person, is information which it is reasonable to require that person to obtain for the purposes of complying with the requirement.

(5)Nothing in this section compels the production by any person of a document subject to legal privilege.

(6)A document subject to legal privilege means a communication—

(a)between a professional legal adviser and the adviser’s client; or

(b)made in connection with or in contemplation of legal proceedings and for the purpose of those proceedings,

which would, in legal proceedings, be protected from disclosure by virtue of any rule of law relating to confidentiality of communications.

24Power to ask questions

(1)The power referred to in section 21(4)(c) is to require any person whom the investigator has reasonable cause to believe has any information relevant to the public health investigation to answer such questions as the investigator considers it appropriate to ask.

(2)A person required to answer questions under subsection (1) may nominate one other person to be present during questioning.

(3)When a person answers questions under subsection (1), the only other persons who may be present (apart from the investigator) are—

(a)the person (if any) nominated under subsection (2); and

(b)any person authorised by the investigator to be present.

(4)No answer given by a person in pursuance of a requirement imposed under subsection (1) is admissible in evidence against the person in any criminal proceedings.

25Supplementary

(1)An investigator entitled to exercise a power under section 22, 23 or 24 must, if requested to do so, produce a document showing that investigator’s authority.

(2)An investigator may require any person to provide the investigator with such facilities and assistance with respect to any matters or things—

(a)within that person’s control; or

(b)in relation to which that person has responsibilities,

as are necessary to enable the investigator to exercise any of the powers conferred by sections 22, 23 and 24.

(3)The Scottish Ministers may, by regulations, confer on investigators such powers as Ministers consider necessary for the purposes of public health investigations.

(4)Regulations under subsection (3) may modify any enactment (including this Act).

(5)This section and sections 22 to 24 are without prejudice to any other powers conferred on an investigator by—

(a)this Act or any other enactment; or

(b)any rule of law.

26Entry to dwellinghouses

(1)Where an investigator proposes, in the exercise of a power conferred by section 22, to enter a dwellinghouse, the conditions set out in subsections (2) and (3) must be satisfied.

(2)The first condition is that the investigator has given 48 hours' notice of the proposed entry to a person who appears to be the occupier of the dwellinghouse.

(3)The second condition is that—

(a)the person who appears to be the occupier of the dwellinghouse has consented; or

(b)entry is effected under the authority of a warrant issued in accordance with section 27.

(4)In this Part, “dwellinghouse” means any premises or part of premises which are wholly or mainly occupied as a person’s dwelling.

27Public health investigation warrants

(1)This section applies where—

(a)an investigator entitled to enter premises under section 22—

(i)has been refused entry; or

(ii)reasonably anticipates entry being refused;

(b)premises which an investigator is entitled to enter are unoccupied;

(c)the occupier of such premises is temporarily absent and there is urgency;

(d)an investigator entitled to exercise a power under section 23 or 24—

(i)has been prevented from exercising that power; or

(ii)reasonably anticipates being prevented from doing so; or

(e)an application for admission to the premises would defeat the object of the public health investigation.

(2)The sheriff or a justice of the peace may, on the application of the investigator, by warrant authorise the investigator—

(a)to enter the premises;

(b)on entering premises by virtue of paragraph (a), to take—

(i)any other person authorised by the investigator and, if the investigator has reasonable cause to expect any serious obstruction in obtaining access, a constable; and

(ii)any equipment or materials required for any purpose for which the power of entry is being exercised;

(c)to direct that—

(i)those premises (or any part of them) are; or

(ii)any thing in or on them is,

to be left undisturbed (whether generally or in particular respects) for so long as the investigator considers appropriate;

(d)to exercise any power mentioned in sections 23 to 25.

(3)The sheriff or justice of the peace must not, under subsection (2), grant a warrant in relation to a dwellinghouse unless the sheriff or justice is satisfied that—

(a)the notice required by section 26(2) has been given; and

(b)the period of notice has expired.

(4)The power of entry in this section—

(a)may be exercised at any time; and

(b)includes power to use reasonable force.

(5)Where the investigator enters premises by virtue of this section, section 22(2) applies.

(6)A warrant under this section continues in force until the purpose for which it is issued is fulfilled.

28Use of powers in emergencies

(1)This section applies where an investigator who is entitled to enter premises by virtue of the power conferred by section 22 considers, on reasonable grounds, that there is an emergency.

(2)The power of entry which the investigator has—

(a)may be exercised at any time; and

(b)includes power to use reasonable force.

(3)Where the premises in relation to which the investigator proposes to exercise the power are a dwellinghouse, section 26 does not apply.

(4)The investigator may, on entering premises by virtue of this section—

(a)take—

(i)any other person authorised by the investigator and, if the investigator has reasonable cause to expect any serious obstruction in obtaining access, a constable; and

(ii)any equipment or materials required for any purpose for which the power of entry is being exercised;

(b)direct that—

(i)those premises (or any part of them) are; or

(ii)any thing in or on them is,

to be left undisturbed (whether generally or in particular respects) for so long as the investigator considers appropriate;

(c)exercise any power mentioned in sections 23 to 25.

(5)Where the investigator enters premises by virtue of this section, section 22(2) applies.

(6)In this section, there is an “emergency” if—

(a)there is a significant risk to public health; and

(b)the nature of that risk is such that immediate action is necessary—

(i)to verify the existence of the risk;

(ii)to ascertain the cause of the risk; or

(iii)to take action to prevent, or prevent the spread of, infectious disease or contamination.

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