The way the HSE, Police and other regulators approach investigations into workplace fatalities was the topic of hot discussion at the SHP Legal Arena today.
Presenting on the subject was Peter McNaught, legal advisor to the HSE, who explained to delegates that the Police are likely to be the first on the scene when a death at work occurs.
He warned that they don’t necessarily have much experience in dealing with fatalities and that different forces will treat the investigation in different ways; some, for example, may allow individual detectives to take the lead, while other forces may handle it through a major investigation team and treat it like a homicide case.
They will also focus on the actions and roles of individuals, as they will be pursuing a line of inquiry to determine whether there is the potential to bring charges for manslaughter.
Among the many powers of the Police, perhaps the key one is the power to arrest individuals, which, explained Peter, “they are keen to do for various reasons”. And, although in workplace-fatality cases, they may ask an individual to attend an interview at the police station by appointment, “it doesn’t mean that when they attend they won’t be arrested”.
HSE and local-authority inspectors, by contrast, have no power to arrest individuals, but they do have a range of options open to them to help them in their investigations following a workplace incident. These include: the power to enter premises; the power to direct that premises are left undisturbed; and the power to take measurements, samples and photos.
However, explained Peter, the HSE also has a power to require people to answer questions. During police interviews, the interviewee has the right to remain silent but failing to answer an HSE inspector’s questions in relation to their investigation is a criminal offence.
Inspectors also have the power to request documents to be provided, and much of their investigatory approach will focus on written records kept by the employer – for example, training records, documents to determine competence, health and safety policies, and what risk assessments were carried out.
If a company refuses to provide documents, or procrastinates on the issue, then the HSE may employ their power in this regard.
Moving on to the roles of other bodies, Peter explained that the CPS has a formal responsibility to decide if criminal proceedings should be commenced after police investigations, in line with the Code of Crown Prosecutors. The CPS may, however, advise the Police during the investigation.
The facts of the incident will also be explored during the coroner’s inquest, which must always be held if there is a violent or unnatural death, which will usually be the case with a workplace fatality. The aim of the coroner’s inquest is to establish the facts and not to apportion any guilt on relevant parties.
Peter closed his session with a brief discussion of the Work-related Deaths Protocol, which was introduced in 1998 to set down guidelines for how the Police and HSE should work together when investigating incidents that may lead to manslaughter charges and health and safety charges being brought.
The Protocol states that one party will have the primary role during the investigation, although health and safety investigation can take place in tandem and alongside any police investigation.
Any decision to prosecute, said Peter, would be initiated and managed jointly, with all the issues considered at the same time, and, in most cases, by the same jury.
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I’ve come across this before, the duty to co operate with the HSE. How does this work with the HSE passing interview evidence to the police where a question requiring an answer to an HSE inspector could be used as evidence for the police to bring a manslaughter prosecution, thereby circumventing the right to remain silent??