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September 27, 2011

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Swifter resolution to health and safety prosecutions expected

Changes to the Work-Related Deaths Protocol (WRDP), which take effect from 1 October, should mean health and safety prosecutions are settled much more quickly than is currently often the case.
As SHP highlighted last month, the changes will allow more health and safety prosecutions in England and Wales to take place before coroners’ inquests – a move that should result in speedier justice for victims’ families.
Currently, health and safety charges are only usually brought prior to the inquest if they are being heard in conjunction with manslaughter-related charges. The revised protocol will allow prosecution before inquest where manslaughter or homicide charges are not relevant – provided it is considered appropriate and in the interest of justice.
Announcing the changes, Richard Daniels, chair of the Work-Related Deaths National Liaison Committee (NLC), said: “All signatories are committed to seeking justice for bereaved family members when a work-related death has occurred and someone should be held to account. The changes will help us deliver this justice more effectively and sooner in less complex cases.”
The changes are not mandatory and it is up to each signatory organisation to decide how it will implement them. The approach taken by the HSE has been to sign a Memorandum of Understanding (MoU) with the Coroners’ Society, setting out the parameters for cooperation between coroners and health and safety inspectors.
In deciding whether to commence criminal proceedings before or after any inquest, the MoU states that the HSE will take into account a number of factors, including:

  • when any inquest could be held;
  • the views of the coroner, Police, Crown Prosecution Service, and the bereaved family;
  • whether the investigation has been carried out in accordance with the WRDP; and
  • whether any further information may come to light as a result of the inquest.

The MoU also sets out the approach to be taken regarding the disclosure of documents, in cases where the HSE decides to await the outcome of the inquest. It states that the coroner must act fairly in considering what information to disclose to properly interested persons and will have to balance this against any claim of prejudice made by the HSE.
It notes, for example: “[The] HSE may obtain evidence to rebut potential ‘defences’ that may be raised by an employer. This evidence may not have any bearing on the death but, if disclosed, would raise a significant risk of prejudice to the criminal investigative process, which will continue after the inquest.”
The revised protocol, which is published at has two new signatories – the Maritime and Coastguard Agency (MCA) and the Chief Fire Officers’ Association (CFOA, on behalf of fire and rescue services). Scotland has a separate protocol to reflect the different legal system and role of the Procurator Fiscal. The protocol for Scotland is published at

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