Prosecution procedures.

[Beast]

In my opinion as soon as it is suspected that an offence has been committed the notice should be served.

During the audit the role of the auditor is to gather information. When an offence is suspected to have been committed (of course taking into account the seriousness of the risk to life) that role is then one of gathering (searching for) evidence, even though we are carrying out the same physical actions and visual observations our intentions have changed.
We don't need to open drawers or cupboards to carry out our search nor do we have to be taking anything from the premises.

[CivvyFSO]

FWIW, after doing quite a bit of digging I am leaning towards the need for a Code B notice.

"Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of a code."

The argument would be whether part B of the code is a relevant requirement, considering

"This Code of Practice deals with police powers to:
• search premises
• seize and retain property found on premises and persons"

This looks as though it is intended to deal with the police powers conferred by PACE, and various other acts, Traffic Act etc.

However.....

"This Code does not apply to the exercise of a statutory power to enter premises or to
inspect goods, equipment or procedures if the exercise of that power is not dependent
on the existence of grounds for suspecting that an offence may have been committed
and the person exercising the power has no reasonable grounds for such suspicion."

It is this final line that would be hard to defend against in court if someone was questioning the way the evidence was collected. You would have to have a good answer to prove that Code B was not relevant.

[Nearlybaldandgrey]

The argument would be whether part B of the code is a relevant requirement, considering

"This Code of Practice deals with police powers to:
• search premises
• seize and retain property found on premises and persons"

Two words there ... search and sieze.

As investigating officers, you do not search premises neither do you sieze goods/articles/items. You inspect and gather evidence using photographs (hopefully) but shoud have regard to the code in case of procedural challenge. You powers of entry and inspection are under Article 27 of the order .... unless you think you have the authority to actively look for offences.

I have argued successfully to persons more senior and experienced than myself that a code B notice was not needed during an investigation and indeed, at all. Service procedures can be used to record this fact and state the reasons why (back to procedural challenge)

With regard to cautioning, I would say that timing is everything.
If you caution a 'suspect' because you have reason to believe an offence has been committed, you will be doing alot of writing. Following the caution, every question you ask and the answers the suspect givesmust be recorded verbatim. Ask one question and that constitutes an interview .... dodgy if not done under caution and things will become complicated!

Why caution at the time? Remember that the RR(FS)O is criminal law, therfore the prosecution must prove beyond reasonable doubt that the offence has been committed and present the evidence accordingly.
If you are investigating and gathering evidence, you don't need to caution so can ask questions in relation to fact finding as long as this is recorded in your notebook. When you have done, get the person to sign as a true record of events at the time. If you proceed, then this is admissable evidence in court.

If you do caution, it is your responsibility to ensure that the person fully understands the caution. Miss this point and their brief may get you on a technicality and abuse of procedure!!

You only need to caution if the person makes a significant statement which is an admission of the offence or you want to halt an inspection due to obvious evidence and you need to conduct a proper interview at a suitable location, conducted in a proper manner ... recorded and with representation. 

It is best to only caution at the interview stage and when you have evidence to put before the person which you seek answers to.
It's a potential minefield which needs to be trodden carefully, not that I have any experience!!

[CivvyFSO]

I am sitting quite firmly on the fence here, so forgive me if I argue both sides.

Code B makes a distinct differentiation between entry under statutory powers when someone is not aware of an offence, and a visit where someone has reasonable grounds to suspect an offence. The only argument that we have to say that no code B notice is required is to prove that Code B is not a relevant part to our role. It does seem to be worded in such a way as to be very relevant to the Police, but it also seems to apply to other enforcement authorities although this seems to be the authorities who will seize items. (trading standards etc)

Regards cautioning a suspect, I operate on the principle whereby I will continue with an audit, almost turning a blind eye to any potential offence, and treat it as an information gathering exercise. After the audit you then have the whole picture, and can then make a judgement as to whether there are reasonable grounds to suspect an offence. Anything that is said during the audit is not used as evidence, but I will potentially use those replies to formulate questions at a taped interview under caution. (Putting significant statements to the interviewee at the start of the interview)

FWIW, you don't have to write everything verbatim according to PACE. You can record an account of an interview which adequately and accurately summarises it.