Response by the Centre for Corporate Accountability to the revised draft of the Protocol of Liaison on Work-Related Deaths

Introduction
1.1	The CCA would like to thank the National Liaison Committee for giving the Centre for Corporate Accountability the opportunity to comment on the proposed revised draft of the ‘Protocol of Liaison on Work-related Deaths’.

1.2	It is the CCA’s view that the establishment of the initial Protocol in April 1998 represented a key transition in the way in which the criminal justice system dealt with work-related deaths and in particular clarifying the role of the police  in the investigation of manslaughter. 

1.3	The current review process, however, provides an important opportunity for the NLC to build on the existing protocol, which has – inevitably – been found inadequate in certain ways.

1.4	The CCA’s comments on the proposed revised draft is the product of (a) a meeting held in February 2002 at which the adequacy of the current protocol was discussed amongst health and safety groups and bereaved families; and (b) more crucially, the experience of the Centre’s ‘Work-Related Death Advice Service’ which provides free, independent and confidential advice to families bereaved from work-related deaths. Our detailed work with families on their cases has provided the Centre with an important understanding of the strengths and weaknesses of the current protocol.

1.5	We set out below our detailed criticisms. However we would like to make a number of introductory comments.

1.6	We note that the NLC has not included as part of the Protocol a document that resembles the ‘Road Traffic Death Investigation Manual’ concerning the investigation of work-related deaths. Whilst it is understandable that the NLC has not included such a document as part of this consultative exercise, in our view, the NLC must initiate a process – if it has not done so already – so that a “work-related death investigation manual” can be produced.

1.7	It is also important that subsequent to the publication of the revised protocol – which will hopefully take full account of the suggestions that are made below by the CCA – that the NLC is involved in ensuring that the document is (a) widely distributed amongst police forces and forms part of the training that CID officers and others obtain and (b) is also distributed to road-traffic police officers and forms part of their training.

1.8	It should also be noted that we have had an opportunity to see the response by the TUC and we will refer to that submission in relation to some of our comments.
 
The Signatories.
2.1	The Covering letter of the protocol states that:

“Other enforcing authorities, such as the Maritime Coastguards Agency and the Civil Aviation authority, will not be signatories to the protocol, but will be asked to confirm whether they will abide by the principles contained within it, and it is intended that the introduction and annex will provide clear and detailed information about this.”

10.2	We can see no reason why these agencies should not be signatories and indeed none has been given in the covering letter. Why should a work-related death at sea or in the air be treated any differently from a land-based work-related death? It is important that there are consistent practices in the investigation of all work-related deaths. If the MCA is not a signatory to the protocol, dockworkers would be in a particularly invidious position – where the adequacy of the investigation could depend on whether he died on board a ship or on land. 

2.3	It is the Centre’s view that the NLC should take whatever action is appropriate to persuade the MCA and the CAA to become signatories to the protocol.

Definition of a ‘work-related death’
3.1	The covering letter states that the introduction of the new protocol will contain the following wording

“For the purposes of this protocol, a work-related death is a fatality resulting from an incident arising out of, or in connection with, work. …. There will be cases in which it is difficult to determine whether a death is work-related within the application of this protocol; for example, those arising out of some road traffic incidents, or in prisons or health care institutions, or following a gas leak. Each fatality must be considered individually, on its particular facts, according to organisational internal guidance, and a decision made as to whether it should be classed as a work-related death. In determining the question, the enforcing authorities will hold discussions and agree upon a conclusion”.

6.2	In our view the following sentence is confusing:

“There will be cases in which it is difficult to determine whether a death is work-related within the application of this protocol ..”

It would be better written:

“There will be cases in which it is difficult to determine whether a death is sufficiently ‘work-related’ in order to trigger the application of this protocol ..”

6.3	The paragraph goes on to state:

Each fatality must be considered individually, on its particular facts, according to organisational internal guidance, and a decision made as to whether it should be classed as a work-related death. In determining the question, the enforcing authorities will hold discussions and agree upon a conclusion”.

We are concerned with the reference to ‘organisational internal guidance’. For example, the HSE has guidance that sets out the type of road-traffic incidents that it investigates. This document restricts the type of work-related road traffic incidents that the HSE will investigate. The HSE’s policy on the investigation of work-related road traffic incidents is dictated by concern for its limited resources – yet, in our view, questions about the application of the protocol should not be dictated by issues of resources. In our view, therefore the section of the paragraph should read:

Each fatality must be considered individually, on its particular facts, which will take into account but not be limited by organisational internal guidance, and a decision made as to whether it should be classed as a work-related death.

6.4	In addition, if a decision is made not to implement the protocol, then the reasons for the decision should be put in writing. The paragraph should state:

In determining the question, the enforcing authorities will hold discussions and agree upon a conclusion. If it is decided that the protocol should not apply, the reasons for the decision will be made in writing”.

Incidents resulting in Serious Injury
4.1	       The covering letter states that the introduction of the new protocol will contain   
              the following wording:

The principles set out in this protocol also apply to cases where the victim suffers injuries in such an incident that are so serious that there is a clear indication, according to medical opinion, of a strong likelihood of death.

4.2	We are concerned with the  wording of this paragraph. In our view, to require ‘a clear indication …of a strong likelihood of death’ is an unduly stringent test and would mean that many incidents involving serious injuries that do subsequently result in death would simply not result in the protocol being implemented at the time that the injury took place – which surely can not be the intention of the NLC since any future investigation will be seriously hampered as a result. In our view the word ‘strong’ should be omitted so that the sentence reads ‘a clear indication, according to medical opinion, of a likelihood of death’.

4.3	In addition, there is an important omission. Whatever wording is used, there will still be serious injuries which unexpectantly result in death. It is important that the enforcing authorities or the police have procedures to ensure that any injury that might result in death is properly monitored, so that as soon as the death does take place, the protocol can be immediately enforced without delay.

The protocol should include a paragraph on this point which states inter alia – and to avoid confusion - that it should be agreed in writing between the police and the enforcing authority who will monitor the injury 

	Statement of Intent
5.1	The CCA is of the view that two short further introductory paragraphs need to be added to the front of this paragraph with similar wording to those set out below. 

A work-related death can be the result of a criminal offence committed under ‘regulatory’ (including health and safety law)  or ‘road traffic’ law, but it can also be the result of the offence of manslaughter committed by an individual and/or a company. 

Under current law, a company can only be prosecuted for manslaughter if the CPS has been decided to charge an individual for manslaughter and  this individual is considered by the CPS to be a ‘controlling mind’ of the company (i.e. has the position of a director or senior company officer). In such a situation, the company together with the individual can be charged
	
	In any investigation of a work-related death it is not always possible to make an early determination of whether an offence of manslaughter has been committed. …..’

5.2	These paragraphs would serve two purposes:

	• 	place the offence of manslaughter in the context of the other applicable offences.

	• 	introduce the notion of manslaughter by a company. This, in our view is important. In the draft protocol, the offence of ‘corporate manslaughter’ is mentioned only once in the whole protocol (relatively near the end in para. 7.3) and even then it is not defined. A key purpose of this protocol is to ensure that the offence of manslaughter is investigated and this includes the offence of manslaughter by the company. It is therefore important to mention that a company can be prosecuted for this offence and the circumstances in which it can happen. In addition, mentioning the offence of ‘corporate manslaughter’ at the beginning will also ensure that the police have a ‘context’ in which they conduct their investigations and help ensure that their focus is not solely on the conduct of ‘shop-floor’ workers.

5.3	The manner in which a company can commit the offence of manslaughter is now settled law (after the recent Attorney General’s reference to the Court of Appeal) and so it can not be argued that there could be any changes to this part of the law (set out in the paragraph below) that ‘would have the effect of rendering the protocol out of date.’ Any reform in this area will take place if and when the Government enacts a proposed new offence of corporate killing. Such reform would, then, require a total redrafting of the current protocol.

	Initial action
6.1	It is our view that the requirement of the police officer to:

‘identify, secure, preserve and take control of the scene, and any other relevant place’.

 needs to be developed and clarified.

6.2	For most police officers with little experience of the investigation of work-related deaths, the ‘scene’ is simply the immediate location of where the death took place. Whilst this is clearly a crucial area for the police to  secure etc, it must be noted that the evidence that is likely to be crucial could be held in computers, files and other documentation within the officers of the premises where the death took place. Simply securing the immediate location of the death is therefore insufficient.

6.3	This point is of great concern to us, since it is our experience that it is often very late in the day that the police even consider obtaining a warrant to search office premises or to remove computers – leaving a period of time in which organisations can remove incriminating documents. 

6.4	In our view, the sentence should read, something to the following effect:

‘identify, secure, preserve and take control of the scene. This should include not only the immediate vicinity of the death but also the location of electronic and written documentation that might have relevance to the investigation.’ .

6.5		This section contains mention of a ‘senior supervisory officer’ (para. 2.1 ) and  ‘police officer of supervisory rank’ (para. 2.2). In our view, the protocol should clarify what are the minimum ranks meant by these terms. Whilst this may be clear to the signatories, it is not clear to lay people who need to understand them so that they can be confident that the correct procedures are being followed. 

6.6	This can be done quite easily in the following way by adding after use of both the above terms ‘from the rank of … upwards’ or adding a footnote.

6.7	We also support the proposal made by the TUC that the protocol should state that, where practicable, the first police officer on the scene should be of supervisory rank

  Management of the Investigation
7.1	A number of points need to be made about this section

7.2	Joint investigations: Para 3.1 states that, “Even when a joint investigation is not appropriate, there will continue to be liaison and co-operation between the parties’. However, the paragraph starts by saying that ‘investigations should be jointly managed’. If it is the intention of the NLC that certain investigations should not be jointly investigated, then the circumstances in which a joint investigation is ‘not appropriate’ should be made clear. At the moment, this is not the case

7.3	In the Centre’s view it is not appropriate to have any exceptions to the general rule of joint investigations but if  there are to be exceptions, these should be tightly circumscribed. The Centre proposes the following paragraphs:

3.1 	Investigations should be jointly managed by the police, the HSE, Local Authority or other enforcing authority, with one of the parties taking primacy, as appropriate. An investigation may also require liaison with any other enforcing authority that may have an interest, and may include liaison with the Crown Prosecution Service (CPS). 

3.2 	In certain limited circumstances investigations need not be jointly managed. These are when [ ….]. A decision of this effect should only be made after a meeting between the police and the enforcing authority. In such situations the investigation should be jointly managed by either the police or the relevant enforcing authority. However, even where a joint investigation is not appropriate, there will continue to be liaison and co-operation between the parties.

7.4	Early Conference: It is the Centre’s experience that the closer the co-ordination between the police and the enforcing authority, the more thorough the investigation. In our view, therefore, the protocol needs to build into it a requirement to hold a joint conference between all the parties soon after the scene has been secured to discuss the management of the investigation.

7.5	In our view, such a meeting would assist the subsequent investigation and would be an appropriate reflection of the principle of joint investigations set out in para 3.1. We propose the following paragraph:

3.3 	Soon after the scene has been secured, there should be an early conference between the police, the HSE/Local Authority and any other relevant enforcing authority to consider how the investigation should proceed and managed.

This will ensure consistency of approach and ensure that the good practice, which exists in certain parts of the country is extended to others.

7.6	Investigation Review: A small point of emphasis should be added to the paragraph on keeping the investigation under review:

3.4 	Throughout the period of investigation, the police and HSE, Local Authority or other enforcing authority should keep the progress of the investigation under review. Milestones should be agreed and monitored, and policy decisions recorded.

7.7	Enforcing Authority Tasks: In the Centre’s view there is one serious omission from the protocol; that is to clarify certain tasks of the enforcing authority in relation to the manslaughter inquiry. In most cases the enforcing authority will have an existing relationship with either the premises where the incident took place and/or with any organisations that may be connected with the circumstances of the incident. As a result, the enforcing authority will have the following information about these premises/organisations:
• details of previous inspections if any have been undertaken;
• details of any previously reported injuries or dangerous occurrences;
• details of any investigations undertaken into these reported incidents;
• details of any previous prosecutions;
		
7.8	The protocol should make it clear that the enforcing authority will provide the police and any other relevant bodies involved in the investigation, details of the above. The following – or similar worded – paragraph should therefore be added.

3.5 At its earliest convenience, the HSE or Local Authority should provide to the police all information that they have about previous inspections, reported incidents, complaints, investigations, and prosecutions in relation to any premises, companies  or other organisations involved in the incident.

7.9	Conflict of Interest: The protocol should also deal with how enforcing authorities should deal with the possible conflict of interest that may exist in relation to the role of particular inspectors employed by the enforcing authority in the investigation of the death because of their previous involvement in inspection or investigation of one or more of the premises, companies or other organisations involved in the incident.

7.10	A potential conflict of interest can exist where an inspector has either (a) a close relationship with the company and its officers or (b) may have failed to inform the company or organisation that it should make particular changes to working practices etc and it was  this omission which was a factor that contributed and/or caused the death.  

7.11	A paragraph should therefore exist to the following effect: 

3.6	The relevant enforcing authority should at an early stage consider whether or not it is appropriate for an inspector who has previously been involved in the inspection of an organisation connected with the death to be involved in the investigation.

			  Decision Making
8.1	A number of small but important changes are suggested in this section

8.2	In relation to para. 4.2, it is important that the reasons why it is not considered appropriate to continue with the manslaughter inquiry should be noted down in writing. 

4.2	Where it becomes apparent during the investigation that there is insufficient evidence that an offence of manslaughter has been committed, the investigation should, by agreement, be taken over by the HSE, Local Authority or other enforcing authority. Both parties should record such a decision in writing setting out the reasons why this decision has been made.

8.3	In relation to para. 4.3 it is the Centre’s view that it should be made clear that the police need to look at the new evidence and consider whether the primacy of the investigation should be taken over by the police.

4.3 Where the HSE, Local Authority or other enforcing authority is investigating, and new information is discovered which may assist the police in considering whether an offence of manslaughter has been committed, then the enforcing authority will pass that new information to the police. An enforcing authority inspector may do this, but it may also be from the enforcing authority’s solicitors via the CPS. The police, on receiving this information, should then consider whether it should reassume the primacy of the investigation- and if not set out in writing the reason for its decision. 

8.4	In relation to para. 4.4, it is the Centre’s view that it should be made clear that subsequent to an inquest, not only should their be consideration of any new evidence or reconsideration of existing evidence, but further investigation may be required by the police and enforcing authority.

4.4 There will also be rare occasions where as a result of the Coroners Inquest further consideration of the evidence and surrounding facts may need to be made. Where this takes place the police, the enforcing authority with primacy for the investigation, and the CPS will work in partnership to ensure an early decision. It may be necessary for the police and other enforcing authorities, to undertake further investigations.

Pre-Charge Advice
9.1	In relation to this section, the Centre has the following comments.

9.2	Para 7.1 should be amended to add a final sentence making it clear that the police may find it useful to consult the CPS to clarify the type of evidence necessary in the particular set of circumstances that might justify manslaughter.

7.1 Early liaison between the police and the CPS and close co-operation throughout the investigation are to be  encouraged as it is in the best interests of the investigation and prosecution process as a whole. There is no need to wait until a file is ready to be submitted before the police open discussions with the CPS. The police may, at any stage following a work-related death, consult the CPS for advice, not only about the nature of any charges, but also as to the legal and evidential issues surrounding the investigation and what evidence would be necessary to justify the charging of a person for manslaughter.

9.3	Para 7.3 contains the term ‘corporate manslaughter’. In the Centre’s view it is better to use the term ‘charging a company’ since the term corporate manslaughter is often misunderstood to include the charging of any senior person involved in a company.

7.3 The police must consult CPS Casework Directorate for advice before charge when there is any issue of charging a company for manslaughter.

The Decision to Prosecute
10.1	The Centre makes a number of small proposed changes:

• 	in para 8.1, the term Crown Prosecutor should be changed to CPS to ensure consistency and avoid confusion of terms.

•	in para 8.2 the first phrase should read: “When the CPS’s decision whether to prosecute or not has been made, ….”

• 	at the end of para. 8.3, the following sentence should be added:

The police should be kept informed of any decision by the HSE, Local Authority or other enforcing authority to prosecute.

10.3	Issue of Experts: In addition we also of the view that the following change should be made to para. 8.1

The decision to prosecute for manslaughter, either with or without related HSWA offences, shall be taken by a Crown Prosecutor according to the Code for Crown Prosecutors, and following discussion with the police, relevant experts and, where appropriate, the HSE, Local Authority or other enforcing authority.

10.4	It is our experience that a number of decisions by the CPS are made without meeting those experts who have given statements to the police. Instead the CPS simply relies on written statements. These reports are often of a very technical nature and it is our experience that Crown Prosecutors will not have a proper understanding of the expert evidence (and indeed whether further clarification is necessary) on the basis of  simply reading the reports. It is our view that no decision should be made by the CPS without a meeting with the relevant experts. 

10.4	Decisions not to prosecute: After a decision has been made by the CPS not to prosecute in relation to a death, it is the policy of the CPS to (a) set out its reasons in writing and send them to the family, and (b) to meet the family to explain its reasons, and allow them to raise issues with the CPS.

10.5	This policy – set out in part in its charter – should be made clear in the protocol. Families are more likely to read the protocol – which is given out by the HSE in its ‘Bereaved Family Pack’ – than the CPS charter. 

10.6	The HSE and Local Authorities have no consistent or established policies in relation to (a) providing written reasons or (b) meeting families, when they have made a decision not to prosecute in relation to a death. In fact, in our experience, the HSE has never provided a family with detailed reasons as to why a prosecution will not proceed. In relation to the deaths, it is our view that the HSE, local authorities and other enforcing authorities should have the same policies as the CPS in relation to dealing with bereaved families.

10.7	We are proposing the following – or similarly worded - paragraphs:

When the CPS decides not to prosecute for manslaughter, it will set out its reasons in writing and send them to the bereaved family or its representatives. In this letter it will offer the family and its representatives an opportunity for a meeting in which it will explain its decision.

If subsequent to a decision by the CPS not to prosecute, a decision is made by the HSE or other enforcing authority not to prosecute any organisation or individual in relation to the death, the enforcing authority will set out its reasons in writing and send them to the bereaved family or its representatives. In this letter it will offer the family and its representatives an opportunity for a meeting in which it will explain its decision.

Centre for Corporate Accountability
6 August 2002