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Research & Briefings

Investigation of Work-Related Deaths

Work-related deaths can be the result of:

a regulatory offence (i.e. an offence under the Health and Safety at Work Act 1974 or Merchant Shipping legislation);
an offence under road traffic legislation - if it is a work-related road traffic death;
an offence of manslaughter;

On 18 March 2003, new procedures for the investigation of work-related deaths were published. This took the form of a revised Protocol of Liaison on Work-Related Deaths which had first been published in April 1998.

This page summarises the key points in the revised protocol and the way it differs from the previous one.

If you would like to download the full document, Click Here (PDF)

If you would like to see the press release issued by the HSE, police, CPS etc, Click Here

Click Here, to see CCA press release

New Protocol
Summary of Key changes and positive developments
To whom do the new procedures apply?
With what is the protocol concerned?
In what circumstances will the protocol apply
Protocol’s 'Statement of Intent'
Initial action by the police
  Decision to Prosecute
What is not in the protocol that the CCA wanted
Other Investigation issues and information on old Protocol
The Protocol and the Proposed Offence of Corporate Killing
National Liaison Committee
What the HSE says about Manslaughter
Old Protocol
Consultation Process on Protocol Revision

Summary of positive changes to Protocol

he 1998 protocol had a two stage process. The police would undertake an ‘initial assessment’ of whether or not manslaughter has been committed, and only be involved in a manslaughter investigation if the assessment was positive.

Now, the new protocol states that the police should be involved in a manslaughter investigation from the beginning and only stop when ‘it becomes apparent during the investigation that there is insufficient evidence" that manslaughter has been committed.

The Protocol also:
states that an investigation must be ‘sound’ and ‘thorough and appropriate’
sets out clearly what the first police officer who attends the scene must do
says that a 'senior supervisory officer' should be in charge of the investigation - which may well be more senior to a 'detective of supervisory rank (mentioned in first protocol). However, it is possible that it is not made explicit that the senior officer should be a detective (which is of some concern to the CCA).
states that the investigation should ‘generally be jointly investigated’ with the police and the regulatory body. Although this has increasingly become the practice, the 1998 protocol does not actually state this.
states that "throughout the period of investigation’, the investigation must be kept ‘under review’.
states that key investigation decisions must be recorded
sets our what the police and the regulatory body must agree upon and states that this should include:
‘how, and to what extent, corporate or organisation failures should be investigated.
drawing up a 'strategy for keeping the bereaved informed of developments in the investigation'.


To whom do the new procedures apply?

The Health and Safety Executive and most Local Authorities [1] in England and Wales. These bodies are responsible for the investigation and prosecution of health and safety offences. The protocol does not formally apply to the Civil Aviation Authority and the Maritime Coastguard Agency (who are responsible for the investigation and prosecution of aviation and maritime safety offences respectively): however both of these agencies have ‘agreed to abide by the protocol’s principles’;
the 43 police forces in England and Wales (through the signatory of the Association of Chief Police Officers) and the British Transport Police. They are responsible for the investigation of manslaughter and other serious criminal offences. The protocol, however, does not apply to a number of small police forces like the Ministry of Defence police.
the Crown Prosecution Service which is responsible for the prosecution of the offence manslaughter and other serious criminal offences (but not health and safety offences). .

The old protocol only applied to the HSE, the Crown Prosecution Service and the 43 police forces in England and Wales (i.e. not Local Authorities and the British Transport Police).

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With what is the protocol concerned

The protocol concerns "the effective liaison between the parties" involved in the investigation and prosecution of work-related deaths in England and Wales. It does not apply to Scotland. It should be noted that the protocol explicitly states that it "is not intended to cover the operational practices of the signatory organisations".

This distinction between 'liaison' and 'operational matters' is significant. The protocol is clear that it does not concern the way in which the police and the HSE should actually conduct their investigations. To read why the CCA thinks that the police should produce a Work-related Death investigation Manual, Click Here

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When will the protocol apply

The protocol principally applies when there is a ‘work-related death’. But how is this defined? The protocol states that a work-related death is a ‘fatality resulting from an incident arising out of or in connection with work."

Many deaths are clearly the result of "an incident arising out of or in connection with work" - particularly if the deaths are of a type that should be reported to the Health and Safety Executive or Local Authorities (Click Here to read about those deaths that are reportable).

However there are many deaths where it is not clear cut whether or not they are 'work-related', for example those arising "out of some road traffic incidents or in prisons or health care institutions".

The Protocol states that:

"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 without delay."

This paragraph is new to the protocol: in the old one there was no details on what was meant by the a 'work-related death'. However, there must be some concern that the protocol places so much emphasis on the 'organisational internal guidance' of the relevant regulatory body as a decisive factor in whether on a death is 'work-related' - since guidance on such a matter is likely to be informed by the limited resources of the the regulatory body.

Serious injuries: The ‘principles of the protocol’ also applies 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."

The old protocol simply said that the protocol applied whether was a " likelihood of death" – so the new protocol is a little clearer on this. However the new protocol does not require a police officer to check whether a serious injury may lead to death and so as a result it is quite possible for the police not to undertake an investigation into the incident until death has taken place, which may well be some time after the event.

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Protocol’s 'Statement of Intent'
Paragraph 1.1 of the Protocol contains a 'statement of intent' which states that:

'In the early stages of an investigation, whether any serious criminal offence has been committed is not always apparent. The parties to the protocol are committed to ensuring that any investigation into a work-related death is thorough and appropriate',and agree to work closely together in order to achieve this. Decisions in relation to who will lead the investigation, and the direction it will take, should be timely, informed by the best available evidence and technical expertise, and should take account of the wider public interest. Should there be any issue as to who is to be involved in investigating any work-related death, then the parties will work together to reach a conclusion.

The following aspects of this paragraph should be emphasised:

an investigation should be "thorough and appropriate". The old protocol did not set out what standard of investigation was required.

It should also be noted that this obligation is not one simply placed on the police and the regulatory bodies but also upon the CPS.
decisions relating to an investigation should ‘take account of the wider public interest". Such an obligation was not made explicit in former protocol and should ensure that the investigation bodies take a broader view.

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Initial action by the police

In most cases, it will be a police officer who will be the first person to attend the scene of a death. Para 2.1 of the Protocol sets out what action this police officer should undertake

identify, secure, preserve and take control of the scene, and any other relevant place;
supervise and record all activity;
inform a senior supervisory officer;
enquire whether the employer or other responsible person in control of the premises or activity has informed HSE, the local authority or other investigating or enforcing authority; and
contact and discuss the incident with HSE, the local authority or other enforcing authority, and agree arrangements for controlling the scene, for considering access to others, and for other local handling procedures to ensure the safety of
the public.

Clarifying the function of this police officers is new to the protocol and a positive development.

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Action by a police officer of Supervisory Rank

As stated above, the attending police officer should inform a "senior supervisory officer". Para 2.2 says that this person should:

"attend the scene and any other relevant place to assess the situation, review actions taken to date and assume responsibility for the investigation."

This paragraph is important as it makes clear that a police manslaughter investigation starts right from the time of death. In the old protocol, the police would only undertake a manslaughter inquiry after an ‘initial assessment’ – the meaning of which was undefined - was undertaken.

The new role of the police is a positive new development

It should also be noted that in the old protocol, the police officer involved was 'a police detective of supervisory rank' - so it appears that the new protocol is involving a more senior officer.

The new protocol does not however state what "senior Supervisory Officer" actually means in terms of rank.

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Conduct of the Investigation
Section 3 of the protocol lays down a number of rules:

"investigations should be jointly conducted with one of the parties taking the lead";

This was not part of the old protocol. Though it does reflect the reality of how investigations have in fact been carried out in the last few years. It is a positive development that this has now been formalised.
throughout the period of investigation, the investigating bodies should "keep the progress of the investigation under review."

This is new positive development.

The investigating bodies should agree upon:

"how resources are to be specifically used;
how evidence is to be disclosed between the parties;
how the interviewing of witnesses, the instruction of experts and the forensic examination of exhibits is to be co-ordinated;
how, and to what extent, corporate or organisational failures should be
a strategy for keeping the bereaved, witnesses, and other interested parties such as the coroner, informed of developments in the investigation; and
a media strategy to take account of the sensitivities of the bereaved and those involved in the incident, and to encourage consistency of approach in reporting."

These are all new to the protocol. It is noteworthy that the protocol states that investigations should specifically agree 'how, and to what extent, corporate or organisational failures should be investigated', and that the protocol requires bereaved families to be kept informed of the investigation.

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Which Investigation Bodies assumes 'primacy'
Para 4.1 states that the police will take primacy of the investigation, when:

"the investigation gives rise to a suspicion that a serious criminal offence (other than a health and safety offence) may have caused the death".

The regulatory body will take primacy when

"it becomes apparent during the investigation that there is insufficient evidence that a serious criminal offence… cause d the death".

If, however the primacy is with the regulatory body and

"new information is discovered which may assist the police in considering whether a serious criminal offence … has been committed,"

the regulatory body should pass that new information to the police. The police should then

"consider whether to resume primacy for the investigation."

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Decision to Prosecute

The protocol states that:

"the CPS should always take into account the consequences for the bereaved of the decision whether or not to prosecute and of any views expressed by them (para 8.3)
Where there is a decision by the CPS not to prosecute, "it is CPS policy to set out its reasons in writing and send them to the bereaved and to offer them to discuss the reasons for reaching the decision."

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What is not in the protocol that the CCA wanted

There are many positive changes to the new protocol (as indicated above) but in its response to the consultation document (click here to read about this) the CCA suggested a number of changes that have not been included. These are summarised here.

For the CAA and the MCA to be signatories.
Whether a death is deemed work-related or not should not be dependent upon "organisational internal guidance’
Discussion about the offence of manslaughter and the way it applies to companies should be included (see section 5 of response)
Further clarification needed on what is the ‘crime scene’ (section 6 of response)
definition of ‘senior supervisory officer’;
should have set out what key information regulatory body should provide police (see para 7.7
should have dealt with problem of conflicts of interests in a regulatory body where same inspectors investigating an incident may have previously been involved in inspecting the company (see para 7.9 – 7.11)
should have stated that HSE should provide written reasons why it has decided not to prosecute – unlike the CPS who do give reasons

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The Protocol and the Proposed Offence of Corporate Killing

In its consultation document on reform to the law of manslaughter the Home office proposed that the police would no longer necessarily be involved in the investigation of work-related deaths. In the Centre's view this would be a step-backwards.

To see the Centre's response to this particular proposal and how the Centre considers investigation should be organised, click here

However, it appears that the Government is taking a step back from this proposal since the new protocol - that must be taking into account the possibility that a new offence of Corporate Killing might be introduced - proposes a continuing and crucial role for the police.

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National and Local Liaison Committees

The new Protocol states that:
"The national liaison committee comprises representatives from the police, BTP, the CPS, HSE and the Local Government Association. It will meet at least twice a year to review the operation of the protocol and consider the need for changes in arrangements"
This is a continuation of the NLC set up in the old protocol - though now the NLC will meet at least twice a year rather than once.

So far the National Committee has published two annual reports.

The Annual Report 1999/2000 records the following items of note:
  • The Local Government Association has agreed to become a signatory of the protocol when a new protocol is published

  • The Committee refused to extend the protocol arrangements to cover serious injuries as well as deaths, as it concluded that there was "generally little prospect of securing convictions against employers under Offences against the person legislation in respect of failures to manage health and safety …."
To download the 2000/01 report (PDF) click here.

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When the protocol was first published in April 1998, it represented an important step forward in the investigation of work-related deaths. This was because it required that all work-related deaths to which it applied would gain some form of police investigation in which there would be some consideration of the offence of manslaughter. Until then, only those deaths which were referred to the police by the HSE ever gained any form of police investigation. To see more on what happened prior to the Protocol, click here.

Below is a summary of the main points in the protocol. If you would like to download the protocol (PDF), click here

Which Deaths Come Within the Protocol
The Protocol only applies to 'land-based deaths". It does not apply to deaths at sea in British waters or deaths on board British ships. This is because the Maritime and Coastguard Agency - which is responsible for the investigation of these deaths - is not a signatory to the Protocol.

Although Local Authorities are not signatories to this protocol, they have agreed to comply with the protocol. As a result all deaths that should be reported to the Health and Safety Executive or Local Authorities should be investigated in compliance with the protocol.

Initial Assessment by the Police
The protocol requires that:

1.1 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, and should:

(a) "make an initial assessment about whether the circumstances might justify a charge of manslaughter … in which case the Police will commence their investigation."
(b) ...
2.1 As a general guide, the police will investigate where there is evidence 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.

This 'initial assessment' is usually undertaken with the assistance by an inspector from the HSE or Local Authority.

HSE investigation
Where, the initial assessment indicates that there will be no formal manslaughter investigation by the police, the case is handed over to the HSE or Local Authority for it to continue with its investigation.

The protocol then goes on to state:
2.6 Where, during the HSE investigation, evidence indicates an offence of manslaughter may have been committed, the HSE will refer the matter to the Police without delay …"

HSE "Operational Guidance"

'Operational Guidance' provided by the HSE to its inspector states that:
14 In most cases 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 whether the circumstances of a fatal accident meet the legal tests for manslaughter and refer to the police any evidence pointing to an offence of manslaughter and/or corporate manslaughter. The police will decide whether the evidence warrants further enquiries and investigation." [Emphasis Added]
15 A failure to comply with statutory duties under the Health and Safety at Work Act 1974 leading to a death may make those responsible prima facie liable for manslaughter if they failed to avert an obvious and serious risk to human life

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In 2002 the National Liaison Committee stated that they were considering revising the Protocol and would like to hear from organisations about their views on the current protocol.

The CCA and RoadPeace organised a meeting which brought together bereaved families, lawyers, trade unions, safety organisations and government bodies to discuss the current protocol and views on how it could be improved.

Click here to download a briefing document (in Word) prepared by CCA for the meeting.

In June 2002, the NLC published a proposed revised Protocol and asked for comments.

Click here to see the NLC’s proposed protocol (PDF).
Click here to download CCA’s response to the protocol (in Word).

Excerpt from a report by the Health and Safety Executive: "Health and Safety Offences and Penalties (October 2001)

2.26 As well as enforcing health and safety law, HSE also plays an important part in England and Wales in supporting police investigations into possible work-related manslaughter offences. The police are responsible for manslaughter investigations. HSE contributes its expertise in questions of health and safety management. HSE inspectors also pass to the police any evidence which they may find in the course of their health and safety investigation which may point to a possible manslaughter offence.
2.27 Arrangements for liaison between the police, the Crown Prosecution Service (CPS) and HSE are set out in a joint protocol on responding to work-related deaths. The Protocol was published in April 1998 by the CPS, HSE and the Association of Chief Police Officers (ACPO). The three authorities have set up a joint National Liaison Committee to monitor the working of the Protocol.
2.28 During 2000/2001, the police referred 26 cases of work-related death, inspectors where HSE is the health and safety enforcing authority, to the CPS to consider possible manslaughter charges. The CPS have so far started prosecutions for manslaughter in 6 of these cases. Since April 1992, a total of 162 possible manslaughter cases have been referred to the CPS. CPS have brought prosecutions for manslaughter in 45 cases, 10 of which have resulted in convictions.
2.29 The Protocol will need to be reviewed in the light of experience. In particular the review will need to take account of Government decisions which are expected to follow the Home Office consultation on proposed changes to the law on involuntary manslaughter, especially the proposed new offence of corporate killing. The joint National Liaison Committee is considering the timing and form of the review and how to involve others in the process, including organisations concerned with supporting victims' families
2.30 The Local Government Association and British Transport Police plan to become signatories to the Protocol following the review.
2.31 HSC responded to the Home Office consultation paper on reforming the law on involuntary manslaughter (published in May 2000). HSC gave full support to introducing a new offence of corporate killing and hoped the Government would legislate as soon as possible. The main benefit of the new offence would be as a powerful deterrent, to help prevent needless injuries and deaths while at the same time punishing the grossly negligent. HSC also said that a corporate killing offence should apply to both private and public sectors and be the same in Scotland as well as in England and Wales, to which the consultation paper related.

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[1] Through the Local government Association. It is most Local Authorities as it does not apply to those Local Authorities who are not signatories to the Enforcement Concordat

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Page last updated on July 25, 2004