CCA Briefing on ‘Protocol of Liaison on Work-Related Deaths’ for  Meeting organised by the CCA and RoadPeace (Feb 2002)

INTRODUCTION

Key Points of the Protocol
1.1 	In Summary, the protocol:
• 	is concerned with ensuring better co-ordination between the police, HSE and the Crown Prosecution Service in dealing with work-related deaths but crucially it was established to ensure that there was an effective investigation that could determine if a work-related death was the result of manslaughter by a company or individual. 
• 	has been in existence since April 1998. Prior to this the police were only involved in the investigation of work-related deaths if the regulatory body referred the death to the police;
• 	requires a ‘police detective of supervisory rank” to attend the scene of a work-related death and make initial inquires;
• 	requires the HSE to pass to the police evidence suggesting manslaughter.

Key Players in the Protocol
1.2	The protocol is an agreement between the Health and Safety Executive, the police and the Crown Prosecution Service:

1.3	The Health and Safety Executive is the body with statutory responsibility for the investigation and prosecution of health and safety offences in relation to certain sorts of premises 

1.4	The Police have responsibility for the investigation of most ‘conventional’ crimes – including manslaughter.

1.5	The Crown Prosecution Service have responsibility for deciding whether or not to prosecute for the offence of manslaughter (and other offences) and then proceeding with the prosecution

Other organisations
1.6	Local Authorities: Each Local Authority has statutory responsibility for the investigation and prosecution of health and safety offences in relation to certain sorts of premises that are not the responsibility of  the HSE (see annex for list).

1.7	Local Authorities were initially not part of the Protocol arrangements – but the Local Government Association (which represents local authorities) has agreed to become a signatory of the protocol when a new one is published. A representative now sits on the National Liaison Committee (see below)

1.8	Marine and Coastguard Agency: The MCA is responsible for the investigation and prosecution of deaths on British ships anywhere in the world or any ship in British waters.

1.9	They are not signatories. Indeed a recent conversation with the MCA’s Enforcement Unit indicated that they were not even aware of the protocol itself. It is unclear why the MCA have been left out of the arrangement - since it deals with work-related deaths.

1.10	Civil Aviation Authority: The CAA is responsible for the investigation and prosecution of deaths in UK airspace. They are currently not signatories. It is unclear why this is the case.

Liaison Committees
1.11	The Protocol establishes National and Local Liaison Committees. The National Liaison Committee comprises representatives from the Crown Prosecution Service, the police and the Health and Safety Executive. 

1.12	Its purpose is to “review the operation of the protocol and consider the need for changes in arrangements.” (para 10). The protocol states that it should meet “at least once a year”. In fact, the NLC meets twice a year.

1.13	It is the NLC who has requested organisations to submit comments to it about the operation of the protocol.

1.14	Local Liaison Committees: The protocol requires that the police, the HSE and the CPS appoint ‘local liaison officers’. It is the role of these local liaison officers to:
• 	ensure that there is an ‘identified local line of effective communication between the three organisations’
•	monitoring the effectiveness of the protocol
• 	communications any issues that may have implications for the protocol or issues of concern to the national liaison Committee.

These LLOs meet in Local Liaison Committees which exist in 8 regions (see Appendix). 

1.16	Manslaughter and regulatory offences: A work-related death can be the result of two different categories of offences:
• a regulatory offence;
• an offence of manslaughter;

1.17	The key differences between the two are:
• 	regulatory offences require at the most evidence of negligence, whilst the offence of manslaughter requires evidence of gross negligence;
• 	regulatory offences are not result-based – i.e can be committed whether or not the ‘negligence’ resulted in death or injury – whilst manslaughter requires evidence that the gross negligence caused the deaths;
• 	in regulatory offences, the primary offence is against the company (as employer, manufacturer etc) whilst for manslaughter, the primary offence is against an individual.
• 	regulatory offences are investigated and prosecuted by regulatory bodies; manslaughter is investigated by the police.
• 	regulatory offences are contained in regulatory statutes; whilst the law of manslaughter is ‘judge-made’ law that has evolved over hundreds of years

1.18	Work-Related Road Traffic Deaths
Many deaths on the road have a component that is work-related and will require inquiries that consider not only the conduct of a driver but also the conduct of companies and organisations. For example:
• 	a death may result from  a driver crashing into inappropriately placed or signaled road works;
• 	a death may result from a lorry driver falling asleep at the wheel caused by overtime and long hours of driving – which is known about by the employer of the lorry driver.
• 	a death may result from a lorry or vehicle used for work which has been inadequately maintained

1.19	In such scenarios the death can be the result of either or both health and safety offences or manslaughter – in just the same way as a ‘conventional’ work-related death.

Road Death Investigation Manual
1.20	Last year, the National Operations Faculty of the Association of Chief Police Officers published a document called the Road Death Investigation Manual. This 190 page document sets out in some detail how the police should investigate road deaths.

1.21	No similar document exists in relation to the way in which the police should investigate work-related deaths. As will be detailed below, there is a lot in this manual that should exist either within the protocol itself, or – probably more appropriately - in guidance associated with the protocol.

HSE’s ‘Operational Circular’
1.22	The HSE has produced some internal guidance to its inspectors – OC165/8 - dealing with the protocol which is referred to in this briefing

Considerations that needs to be at the heart of the protocol
1.23	Confidence: It is important that the public, and in particular those bereaved as a result of work-related deaths, can feel confident that the manner in which the death is investigated is sufficiently rigorous to ensure that any evidence of manslaughter on the part of individuals and companies will be identified.

	Transparency: it is important that the procedures that determine (a) how the regulatory bodies and the police interact with each other; and (b) how the investigation is undertaken, are as transparent as possible – both to the public and  in particular to the families. 

Consistency: It is important that wherever the death takes places in England and Wales, the same procedures apply.

THE PROTOCOL IN DETAIL

INVESTIGATION BY THE POLICE

2.1	The Protocol requires that:
• 	A police detective of supervisory rank should attend the scene of a work-related death or where there is a strong likelihood of death resulting from an incident arising out of or in connection with work (1.1)

• 	This detective should make an initial assessment about “whether the circumstances might justify a charge of manslaughter”, or other serious general criminal offences, in which case the police will commence their investigation.;

• 	The police will investigate where there is evidence of or a suspicion of deliberate intent or gross negligence or recklessness on the part of an individual or company rather than human error or carelessness. (2.1)

• 	The detective should contact the HSE and either (a) inform the HSE of the police decision to investigate, or (b) where the initial assessment indicates that there will be no police investigation, discuss arrangement for preserving the scene and nature of the assistance that the police are able to provide to the HSE.

2.2	In effect, therefore, the Protocol establishes a ‘two stage process” of police inquiry:
• 	an initial assessment
• 	followed by a manslaughter inquiry – dependent on the outcome of the initial assessment.

2.3	There is no further guidance or information given to the police about how they should undertake their initial assessment or manslaughter inquiries.

	Comments on the ‘Initial Assessment’
2.4	Inconsistent test: The protocol contains inconsistent language about what evidence is required before the police will “commence their investigation”.
	
• 	The introduction to the protocol states that: “The police will conduct an investigation where there is an indication of manslaughter (or another serious general criminal offence)” 

• 	Para 1.1 says “where the circumstances might justify a change of manslaughter”

• 	Para 2.1 says where there is “evidence or a suspicion of … gross negligence”

2.5	In the Centre’s view, if the new protocol is to retain the distinction between “initial assessment’ and ‘manslaughter inquiries’ (see below) then there needs to be consistency about the level of evidence required before the triggering of a proper manslaughter inquiry. In our view, evidence that “might justify a charge of manslaughter” is far too high a test. The difficulty in coming up with such a formulation is one of the reasons why the CCA suggests the scrapping of the two stage process (see below). 

2.6	Guidance for Initial Assessment: There is no guidance provided to a detective about what is required  in undertaking his or her “initial assessment”. The absence of clear guidelines will inevitably results in a wide variation in the way police forces will interpret how extensive an initial assessment should be. It permits some police forces to consider the most superficial of "initial assessments" to be adequate. 

2.7	If the Protocol continues with the concept of undertaking an “initial assessment” (see below) it is important that either within the protocol itself or in additional guidance attached to the protocol, guidelines are set out about what is the minimum required for an initial assessment.

2.8	For example, minimum requirements could include:
• 	interviewing eye-witnesses and any other person who may have information about:
- 	the circumstances of the death;
- 	whether any manager/director of the company was aware of any of the dangers that resulted in the death;
• 	obtaining information about the safety history of any organisation involved: i.e oral/written advice from the Regulatory body; improvement notices, previous prosecution for safety offence etc;
• 	obtaining minutes of any ‘Board” meetings or any other meetings concerned with safety.

2.9	Deaths resulting from serious injuries: The initial assessment requires that the police undertake an initial assessment not only when a death has taken place but also when there is “a strong likelihood of death resulting from an incident”.

2.10	In our view, this is too strict a test. It can result in very serious injuries not being subjected to any form of police inquiry (as in the view of the police officer, there was not a ‘strong likelihood’ of death and therefore no police inquiries were required) until after the death has actually occurred, which can in some cases occur several weeks after the initial  incident. 

2.11	In addition, the protocol (or at least its associated guidelines) needs to make it clear that the police must  monitor these very serious injuries so that they actually know when the incident has resulted in death.

2.12	Is a two-stage Process appropriate? As indicated above, the protocol currently requires a two-stage process. First an ‘initial assessment’ by the police; and secondly, on the basis of this assessment, a decision on whether to launch a formal manslaughter investigation. The decision on whether to launch a formal investigation will obviously depend on the adequacy of the initial assessment.

2.13	In our view, there may well be an inherent weakness in this two-stage process. The Protocol does not make clear whether the “initial assessment” itself is an investigation or not and it is likely therefore that some police forces may well not place sufficient resources into it. 

2.14	Indeed, the limitations of the “initial assessment” process appear to be supported by HSE’s operational guidance to inspectors. This states that:

“In most cases it is unlikely that a manslaughter investigation will commence based solely on an initial assessment of the facts surrounding a fatality.”

If this is the case – and ‘initial assessments’ only pick up the most “transparent” cases of manslaughter - then the two stage process must surely have failed. This is particularly the case if HSE inspectors fail to refer evidence to the police. 

2.15	Furthermore, the process of undertaking an ‘initial assessment’ may itself result in unnecessary delay in those cases where a decision is subsequently taken to launch a manslaughter inquiry. This is time in which vital evidence can be forgotten or lost. The formal investigation will  generally start a number of months after the death (or potential fatality) when it could and should have started immediately after the incident had occurred.

2.16	In our view, there is a strong case to suggest that it would be better practice if a formal investigation is undertaken immediately after  incident has taken  place – removing the need for an ‘initial assessment’. This would not mean that every death would require the same level of detailed investigation – but it would mean that from the beginning, these incident would be treated as manslaughter case until such time and until sufficient inquires have been made that would make it clear that further inquires are unnecessary. 

Other Comments on the Police Investigation 
2.17	The law: The protocol itself neither sets out what is “gross negligence” manslaughter nor what is “corporate manslaughter”.

2.18	Many Detective Sergeants – who are usually the detectives undertaking the initial assessment – will have had little experience of investigating “gross negligence” manslaughter, and if they do, it is unlikely that they will have investigated a work-related death situation. It is therefore important that the protocol has an appendix that sets out:
• 	the general principles of the law of manslaughter;
• 	how it can apply in a work-related death situation;
• 	how it can apply to directors and senior managers of companies and organisations (and not only to those who are the immediate cause of the death), and how it applies to companies.

2.19	It should be noted that the Road Death Investigation Manual does contain detailed information about applicable offences including a page on manslaughter.

2.20	Other Guidance to Inspectors: Further guidance is required to assist the detective in contextualising  issues of culpability. It is easy for a detective to immediately assume that the culpability, if there is any, will exist only amongst those immediately involved in an incident – workers or immediate supervisors - rather than thinking that inquiries will also need to be made about the conduct of those higher up within an organisation, including company directors.

2.21	It is often the case that the immediate cause of a work-related death will be the act of a ‘shop-floor’ worker – and therefore it is easy for a police officer to assume that this is the conduct on which any inquires should focus upon, and that a formal manslaughter investigation will only take place if there appears to be some form of negligence on the part of these workers. It is important that police are made aware of how conduct on the part of managers and directors of organisation can be (a) a cause of the death and (b) grossly negligent – and that any investigation needs to consider this aspect. It is also important that police recognise that whilst of course workers can act with gross negligence, failures on their part are often the result of poor training, inadequate supervision and other issues which are the responsibility of the management of a company. 

2.22	Input from the Road Death Investigation Manual: The Protocol was established to set out the different relationships between the different investigation and prosecution bodies in relation to work-related deaths. The Road Death Manual provides guidance on how these deaths should be investigated and the sorts of practices required. In our view the Protocol needs to be developed so that a lot of the material contained in the manual is included in a work-related protocol or in associated documents.

2.23	For example, the Foreward states:
• 	the manual ‘provides practitioners at all levels with guidance, sound advice and safeguards to ensure that every life lost on our roads is investigated thoroughly and effectively.”
• 	There is a recognition nowadays that in many circumstances the investigation of a road deaths is equivalent in complexity to that of homicide – indeed many road deaths should be treated by police as homicides. This manual has therefore been written with the intention of complementing the ACPO Murder Investigation Manual ..”

2.24	Its Introduction states:
• 	Article 13 of the European Convention on Human Rights (ECHR) suggest that “when an individual dies in suspicious circumstances’ there is a requirement that the police conduct a ‘thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure’ (Kurt v Turkey, 1999)”

• 	The aims of all investigation are as follows:
- investigation fatal and serious collision to the highest possible standards
- Ensure that families of victims are provided with the highest level of support form trained officers dedicated towards the provision of family liaison;
- Provide a documented investigation plan’ during every incident, ensuring each investigation is:
- managed effectively by trained officers;
- adequately resourced;
- thoroughly and impartially investigated;
- monitored to ensure effectiveness
- provide the necessary support to all personnel involved in an investigation.

2.25	The following is included in its “Statement of Investigation Standard”
• 	apply roles of Senior Investigating Officer, Investigating Officer, Family Liaison Officer and Collision Investigator to every road death investigation;
•	 investigate the circumstances thoroughly and impartially, recording and documenting all information;
• 	Ensure the investigation is planned and structured and that all information received is actioned and investigated.
• 	investigate all incidents as ‘UNLAWFUL KILLINGS’ until the contrary is proved
• 	ensure all parties are provided with appropriate levels of information, whilst taking care that the progress of the investigation is not impeded;

2.26	Included in the Manual is information on:
• 	The Investigation Team – who should be in it and their role. This includes, for example “the systematic recording of Senior Investigating Officer’s policies. The recording of why various lines of enquiry were pursued, or why they were not pursued, is critical and the detailed recording of the decision and the reasons for making each decision should be a matter of course.” (p.17)

• 	The need for “case reviews”. These will “provide a clear audit trail of decision-making. It also provides the SIO with the opportunity to discuss progress and options and to agree the overall direction and resources of an investigation.”

• 	requirements of ‘investigation officers’ including, for example, having a “good knowledge of the legislation base the enquiry is working to”.

• 	the role of the Family Liaison Officer whose responsibilities should include, “keeping the family fully upto the date with the developments of the investigation.”

2.27 	The Manual also notes:
• 	“It has been suggested that the easiest way in which to avoid the detection of an unlawful killing is for the offender to make the circumstances of the death appear to be accidental.  …. Only rarely will the first officer on the scene, and later the SIO, be presented with circumstances which immediately suggest the death should be treated as suspicious.” (para 2.9 page 59)

• 	In cases where there is any evidence or any reasonable belief that a prosecution may arise, it is recommended that an early case conference takes place between the Senior Investigating Officer and the Crown Prosecution Service. The objective of the case conference will be to review the evidence available and identify lines of enquiry to be followed and the desired outcome to be achieved. … Case conferences should be held regularly and should involve police, CPS and if possible, prosecuting counsel.

Other Issues Relating to the Police
2.28	Lack of Knowledge of the Protocol: There is concern that some police forces are unaware of the protocol and its implications – and that the police are only informed of their role by the HSE. Indeed one of our Board members recently visited the Police National Training Centre in Durham – and the officers in charge of training admitted that they had very little knowledge and understanding of the protocol and how it should be implemented. Indeed they had been unaware of its existence until a copy of the correspondence between a Board member and the Home Office was sent to them

2.29	Lack of Training on the protocol: The police are not provided any training on issues relating manslaughter in the workplace and how to conduct a thorough investigation. It should be noted, for example, according to the HSE’s internal guidance:

“.. in most cases the detective will not have training in, and often little experience of, health and safety law and appropriate standards and precautions which will be important to their initial assessment

2.30	Police Force Specialisation: Consideration needs to be given to whether each police force should have a number of specially trained CID officers who can deal with work-related deaths

THE ROLE OF THE HSE IN THE PROTOCOL

3.1	The protocol states that when the police decide to investigate, the HSE:
•  	“will provide any agreed technical support to the police and continue to investigate matters” relating to possible health and safety offences.
• 	will not lay any charges until the police and the Crown Prosecution Service have decided whether or not any manslaughter charges are to be made.

3.2	Where the police decide not to investigate or not to continue with its investigation, the protocol states that:
•  	the “HSE will continue with its own investigation” and 
• 	the “police will, upon request, provide agreed local support.” 
• 	where “during the HSE investigation evidence indicates an offence of manslaughter may have been committed, HSE will refer the matter to the police without delay. Where matters cannot be resolved after referral to the police, HSE Solicitor’s Office may refer the matter to the CPS.”

Comment on HSE Referrals
3.3	HSE’s internal guidance states that:

“In most case it is unlikely that a manslaughter investigation will commence based solely on an initial assessment of the facts surrounding a fatality. However further evidence will more likely come to light during the HSE investigation indicating the crime of manslaughter by an individual, or a director and the company. Inspectors should continue to clarify during their investigation where the circumstances of a fatal accident meet the legal tests for manslaughter and refer to the police any evidence pointing to the an offence of manslaughter and/or corporate manslaughter. The police will decide whether the evidence warrants further enquiries and investigation.”

	The protocol places a great deal of trust on the HSE inspector in passing on information to the police. There are a number of problems with this:
• 	what is the purpose of the ‘initial assessment’ by the police if in fact police investigation will only commence after the HSE investigation?
• 	whether a police investigation takes place depends upon the adequacy of the HSE investigation – though the HSE investigation is itself only concerning itself with health and safety offences.
• 	HSE inspectors are not provided any training on the law of manslaughter or when to refer evidence to the police for their consideration.

3.4	There is also slight inconsistencies in the wording used. 
• 	The protocol states that the HSE will refer the matter to the police without delay when “evidence indicates an offence of manslaughter may have been committed.”
• 	HSE’s internal guidance talks about “any evidence pointing to an offence of manslaughter and/or corporate manslaughter.”

The test should be broader than either of the above: whether there is “any new evidence which could assist in determining whether a manslaughter prosecution is appropriate.

Relationship between the police and HSE
3.5	There is a strong argument to suggest that manslaughter investigations should take place with the joint involvement of the police and the HSE – since each can provide different skills and resources to the investigation. This would also ensure that evidence does not fall through the institutional gaps.

3.6	There is also an argument that the HSE develop expertise amongst its inspectors in the investigation of manslaughter. 

SPECIAL INQUIRIES

4.1	The protocol suggests that in the case of “some serious incidents, particularly those involving multiple fatalities, it may be appropriate for the investigation to be jointly managed.”

4.2	In addition to any criminal investigation, the Health and Safety Commission can either:
• direct the HSE to produce a special report;
• with the consent of the Secretary of State, direct that a public inquiry be held.
However these cannot be published before the conclusion of any criminal proceedings.

4.3	The protocol states that “in order that observations or recommendations about health and safety that are in the public interest can be disclosed and acted upon as soon as practicable, there should be no undue delay in taking the decision to prosecute and expediting the proceedings thereafter.”

DISCLOSURE OF INFORMATION TO FAMILIES

5.1	Paragraph 2.3 of the protocol states that “the police and the HSE will liaise and agree arrangements for keeping families informed ..”

No further information is however provided on how families will be kept informed and of what they will be informed about.

5.2	The HSE will soon be publishing a leaflet for bereaved relatives which will set out its new policy in relation to engagement with bereaved relatives. This should in the future ensure improved communication between the HSE (and LAs) – however it is likely at the same time to state that section 28 of the Health and Safety at Work Act 1974will prevent inspectors from providing any details of the investigation that they are undertaking.

5.3	In contrast, there are no statutory limitations to the information that the police can provide to families – however they must be aware of issues concerned with ensuring that any future proceedings are not prejudiced. 

5.4	Many of the 43 police forces now train detectives to be Family Liaison Officers. These are dedicated officers whose role is to ensure that there is proper communication between a bereaved family and those involved in the criminal investigation. One of the roles of the FLO is to ensure that the family is kept informed about the nature of the investigation that is being undertaken.

5.5	It has been the experience of the CCA that police are willing to provide far more information to families than the HSE. In our view, the protocol should state that the police will liaise with the families to provide them information. It should also state that the HSE inspectors will provide information to the police which it is not in a position to provide itself. It should also state what kind of information that can be provided to families.

PROSECUTION AND THE PROTOCOL

6.1	The protocol makes the following comments about prosecution
• 	should be close liaison between the police, HSE and the CPS over prosecution decisions;
•  	there should be “no undue delay” on the part of the CPS “in reaching the decision” over whether or not to prosecute.
• 	the prosecution decision should be made known to the accused and bereaved families prior to any public announcement 
• 	Where CPS and HSE seek to proceed for offences arising from the same incident, a conference should be convened to discuss the management of the case with a view to initiating joint proceedings. In particular, the following issues should be discussed and agreed:
(a) who will take lead responsibility for the proceedings;
(b) the wording and nature of the charges;
(c) arrangements for the retention and disclosure of material;
(d) the timing of proceedings;
(e) arrangements for keeping bereaved families and witnesses informed;
(f) the announcement of the decision;
(g) arrangements for maintaining contact during the life of the prosecution and agree a mechanism for consultation should an issue arise which results in the prosecution being withdrawn or no further evidence offered; and
(h) any other case management issue.

6.2	The protocol fails to require the CPS to provide reasons to families about why it has decided not to prosecute for manslaughter. It is the CPS practice to hold a meeting with a bereaved family if such a meeting is requested – but this is not offered to the family. Furthermore in the CCA’s experience the CPS often refuse to allow advisors or lawyers to the family access to the meetings.

Prosecution, HSE and Inquest
6.3	The protocol states that where there is a decision not to prosecute for manslaughter, the HSE will wait to the inquest takes place before going ahead with a prosecution. This is contained in secti0n 8 of the protocol:

8.2 	Where the police decide not to prefer charges or CPS has reviewed the papers and declined to prosecute for manslaughter:
(a) in order not to prejudice any post inquest review of the decision to prosecute for manslaughter, the HSE will await the result of the coroner ’s inquest before preferring charges under the HSWA 1974 unless delay would prejudice the HSE case; and
(b) where the verdict of the coroner’s court causes the CPS to review their initial decision not to prosecute, the HSE will seek to ensure that their case is not heard until a further review has been completed by CPS.

	However in a number of cases, the HSE sometimes prosecutes before an inquest. 

6.4	The protocol also fails to require the HSE to provide reasons to families about why it has decided not to prosecute for health and safety offences or if it is prosecuting, why it has decided not to prosecute directors or managers.

ACPO REGION	PoliceForces		
North West	Cheshire
Cumbria
Greater Manchester
Lancashire
		
North East	Cleveland
Durham
Humberside
Northumbria
North Yorkshire
South Yorkshire
WestYorkshire
		
Midlands	Leicesterhisre
Northamptonshire
Staffordshire
Warwickshire
West Mercia
West Midlands
		
Eastern	Cambridgeshire
Derbyshire
Lincolmshire
Norfolk
Nottinghamshire
Suffolk
		
South East	Bedfordshire
Essex
Hampshire
Kent
Surrey
Sussex
ThamesValley
		
South West	Avon and Somerset
Devon and Cornwall
Dorset
Gloucestershire
Wiltshire
		
Wales	Dyfed-Powys
Gwent
North Wales
South Wales
		
Metropolitan	City of London
Metropolitan