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HSE
and Pre-Inquest Disclosure
Under the current law, it is at the discretion of
Coroners whether they disclose statements – collected
during the process of police or other investigation
- to bereaved families prior to an inquest so that
the families are able to prepare for the inquest.
Some coroners disclosure statements; others do not.
One of the reforms proposed by the Coroners Review
team is to increase the rights of bereaved families
to information. It argues that there should be a presumption
in favour of disclosure of all witness material prior
to the inquest.
The CCA is strongly in favour of this proposed reform.
The HSE, in its response to the consultation document,
argues that any such reform should not apply to statements
or reports obtained by its inspectors.
It states that:
"there
are restrictions on the way in which information
obtained using Inspector’s powers may be used
and disclosed, some of which flow from the 1974
Act and others from the need to avoid potential
prejudice to possible criminal proceedings. At present,
HSE will assist the Coroner in the provision of
evidence while seeking assurances that the Coroner
will abide by those restrictions that are imposed
on HSE and not disclose material obtained under
Inspector powers. "
The
HSE accepts that: "This situation has the potential
to reflect negatively on HSE and can cause frustration
on the part of the Coroner." It goes onto state
that:
"
However we have statutory obligations to enforce
and we need to meet these obligations, including
bringing legal proceedings in accordance with our
Enforcement Policy Statement and our duties under
the Code for Crown Prosecutors. Parties might seek
disclosure of information during the inquest process
as a way of obtaining pre-action discovery; in addition,
any corresponding press coverage could lead defendants
to claim that their right to a fair trial has been
prejudiced.
If the inquest process is used as a means of obtaining
material which may be relevant to a civil claim
of criminal defence, this could impact negatively
on the Coroner’s ability to ensure that an
inquest remains within the bounds of the Coroner’s
inquiry and risks prejudice to health and safety
cases. It would also be a way in which the clear
intention of Parliament as set out in Section 28
of the HSWA could be circumvented. The rights of
parties to civil claims are adequately protected
by the pre-action disclosure procedures and Defendants
are provided with disclosure as per the Advance
Information Rules and the Criminal Procedure and
Investigations Act 1996. HSE prosecutions are not
conducted solely with the aim of a sentence as retribution
and punishment but also have a wider role in revealing
serious wrongdoing to wider scrutiny and about deterring
others so that risks to employees and the public
are reduced. HSE is concerned to avoid prejudicing
the aim of the HSWA.
Such is the concern of HSE regarding this matter
that guidelines for Inspectors are being prepared
that set out the limits of disclosure at inquests
and the possible effect that breaches of these limits
could have on future legal proceedings. HSE will
make these guidelines available to Coroners via
the Coroner’s Society.
In
summary HSE could not support any proposals with
regard to disclosure that may, in any way, put future
criminal proceedings brought by HSE in jeopardy.
To overcome this difficulty, we suggest that Coroners
are properly resourced to undertake their own enquiries.
That statutory requirement should remain with the
Coroner but there should be appropriate resourcing
in order to discharge the duties on the state. In
this way Coroners will be able to direct their Officers
to gather evidence sufficient for the inquest, which
the Coroner will then be free to disclose as appropriate,
within the proposed Rules of Procedure.
There
are two arguments that the HSE uses here to justify
its current practice of non-disclosure and its rejection
of any reform
Legal Restrictions
The HSE argues that section 28 of the Health and Safety
at Work Act 1974 prevents the HSE allowing coroners
to disclose material prior to an inquest.
However
the CCA does not accept this argument.
Although
Section 28 does impose restrictions on what information,
collected in the course of HSE inspector's functions,
can be disclosed to third parties, section 28(7) does
set out a number of exemptions. These are if the disclosure:
• is for the "purpose of [the HSE's] functions"
• is for the purpose of 'any legal
proceedings";
• is with the consent of the person who gave
the information;
The HSE has stated that if something serves a "positive
health and safety purpose" it is for the purpose
of HSE's functions. Do thorough and rigorous inquests
into work-related deaths serve a positive health and
safety purpose? The HSE itself, in its response to
the Coroners Review Team (to see excerpt, Click
Here), states how important inquests are to promoting
health and safety, so it is difficult to see how the
HSE can argue that disclosure - that would make inquests
more thorough and rigorous - does not serve this purpose.
Prejudice
to a future trial
The HSE argues that disclosure would prejudice any
future trial as a result of consequent press coverage.
This position is based on the fact that the HSE only
decides whether or not to prosecute after an inquest
has taken place.
Again the CCA does not accept this argument. Whether
or not pre-inquest disclosure takes place, many of
those witnesses, who have given statements to the
HSE, will in any case give evidence at the inquest
and this will be reported in the press. Does this
prejudice a fair trial? Presumably not, since no health
and safety prosecution has ever been stopped because
of potential prejudice.
Furthermore, the police are willing for coroners to
give their statements to bereaved families, and the
Crown Prosecution Service will often prosecute cases
after inquests even if the families and others have
had access to these statements.
Please
note that a more detailed paper on this issue will
be put on the CCA website shortly
To read more about inquests into work-related deaths,
Click Here
To
find out about impending inquests, Click
Here
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Excerpt from HSE's Response
to Coroner's Review Team Consultation Document on
why inquests into work-related deaths serve a positive
health and safety purpose.
| 2.2 |
HSE
are opposed to any changes in the coronial system
that would remove the statutory requirement for
a public inquest to follow a death in circumstances
that require it to be notified to an HSE Inspector. |
| 2.3 |
We
believe that this risks sending the message to
society that work-related deaths are not to be
given the fullest consideration. We have no doubt
whatsoever that this does not accord with the
intention of the Review. |
| 2.4 |
The
resulting message that this proposal would send
out also has the potential to jeopardise the Government’s
and HSC’s Revitalising Health and Safety
Strategy (RHS), announced in June 2000. This strategy
sets national targets for the health and safety
system in the reduction of fatal accidents, major
injury accidents and cases of work-related ill
health. These targets have been set to give new
impetus to health and safety improvements by all
stakeholders. The 15% fall in the number of employed
and self-employed workers killed in Great Britain
in 2001-2, as compared to the previous year, is
encouraging in respect of this and would indicate
that now is the time to maintain the tide of improvements
by stakeholders. The suggested removal of inquests
in this field risks sending a message that could
be interpreted as downgrading its importance in
the eyes of the public and bereaved. |
To
download HSE's full response:
• Click Here
(for word)
• Click
here (for PDF)
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