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Investigation
of Work-Related Deaths
Work-related deaths can be the result of:
| •
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a
regulatory offence (i.e. an offence under the
Health and Safety at Work Act 1974 or Merchant
Shipping legislation); |
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an
offence under road traffic legislation - if it
is a work-related road traffic death; |
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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
Summary of positive changes to Protocol
The
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:
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‘how,
and to what extent, corporate or organisation
failures should be investigated. |
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drawing
up a 'strategy for keeping the bereaved
informed of developments in the investigation'. |
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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
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identify,
secure, preserve and take control of the scene,
and any other relevant place; |
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supervise
and record all activity; |
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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:
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"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. |
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The
investigating bodies should agree upon:
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"how
resources are to be specifically used; |
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how
evidence is to be disclosed between the
parties; |
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how
the interviewing of witnesses, the instruction
of experts and the forensic examination
of exhibits is to be co-ordinated; |
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how, and to what extent, corporate or organisational
failures should be
investigated; |
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a
strategy for keeping the bereaved, witnesses,
and other interested parties such as the
coroner, informed of developments in the
investigation; and |
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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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to Index
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:
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"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.
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For
the CAA and the MCA to be signatories. |
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Whether
a death is deemed work-related or not should not
be dependent upon "organisational internal
guidance’ |
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Discussion
about the offence of manslaughter and the way
it applies to companies should be included (see
section 5 of response) |
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Further
clarification needed on what is the ‘crime
scene’ (section 6 of response) |
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definition
of ‘senior supervisory officer’; |
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should
have set out what key information regulatory body
should provide police (see para 7.7 |
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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) |
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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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to Index
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:
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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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to Index
THE
OLD PROTOCOL
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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to the top
PROTOCOL
REVISION
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)
Manslaughter
| 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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Footnote
[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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