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May 8, 2013

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SHE 2013 – SHP Legal Arena – Follow the protocol

Jon Cooper and Lisa Lewins consider the way in which investigations are conducted under the Work-related Deaths Protocol, analysing its strengths, weaknesses and overall effectiveness.

In recent years health and safety investigations have become increasingly complex and thrown up all manner of legal issues.

It is important for those who become involved in these investigations to understand the legal framework, the investigation process and the evidential issues so as to manage the potential reputational consequences as fully as possible.

The Work-related Deaths Protocol is an official convention governing the investigation of work-related fatalities. The principles on which the Protocol is built also apply to cases where the victim suffers injuries so serious that there is a clear indication, according to medical opinion, of a strong likelihood of death. The signatories to the Protocol are the Crown Prosecution Service (CPS), the Police, the HSE, Local Authorities, British Transport Police, The Office of Rail Regulation, The Maritime and Coastguard Agency and the Chief Fire Officers’ Association.

The Civil Aviation Authority and the Independent Police Complaints Commission are not formal signatories but both have agreed to follow the principles of the Protocol.

Commitment to investigate
The Protocol sets out the following statement of intent: “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 Protocol sets out clear guidance to be followed by the Police and other investigating agencies in relation to the conduct of an investigation. It identifies roles and actions and sets out a framework for the management of the investigation. The Protocol takes immediate effect and contains clear guidance on initial action. Its clear objective is that the Police should be the party responsible at the outset for taking control of the scene, preserving evidence and assessing immediate action. Indeed, the Protocol requires that should any other investigatory or enforcing authority have staff in attendance before the Police arrive, then those personnel should simply preserve the scene until the Police arrive. The Protocol also requires the attendance and involvement of a senior police officer.

Where the investigation gives rise to a suspicion that a serious criminal offence, other than a health and safety offence, has been, or may have been, the cause of death, the Police will have primacy for the investigation but will work in partnership with the relevant enforcing authority. In this context “serious criminal offence” translates as an offence of corporate manslaughter contrary to the Corporate Manslaughter and Corporate Homicide Act 2007, or gross-negligence manslaughter on the part of an individual.

Where it becomes apparent that there is insufficient evidence of a serious criminal offence, then primacy of the investigation will pass to the HSE, or other enforcement body conducting the investigation. Both parties should record such decisions in writing.

Framework to prosecute
The Protocol also provides a very useful framework for the early stages of a prosecution. In particular, there is a requirement that a number of specific issues be discussed, agreed and recorded. These include: arrangements for retention and disclosure of material; arrangements for keeping the bereaved and witnesses informed; and the announcement of the decision and arrangements for maintaining contact during the prosecution.

The Protocol reinforces the general principles surrounding decisions to prosecute, and in making decisions in relation to corporate and/or gross-negligence manslaughter, the CPS will have regard to the Code for Crown Prosecutors. Under the Code the evidential test has to be applied first — namely, is there sufficient evidence for there to be a reasonable prospect of conviction? Thereafter, but only if the evidential test is passed, a decision must be taken as to whether prosecution is in the public interest.

The Code does, however, cover some details as to the decision-making process. The decision to prosecute any serious criminal offence, other than a health and safety offence, will be taken by the CPS. The Protocol requires that the decision be made by the CPS following a discussion with the Police and, where appropriate, the relevant enforcing authority. Generally, at the end of the investigation stage and prior to any decision to prosecute being taken, a meeting will take place involving the Police, CPS, other enforcement agencies involved and, increasingly, their legal advisors.

In recent years, the HSE, in particular, feels that the CPS is taking its views increasingly into consideration — particularly in relation to decisions to prosecute for corporate manslaughter, where only a handful of senior CPS prosecutors are involved in the assessment of evidence that might lead to prosecutions of this nature.

The Protocol requires that there should be no undue delay in reaching the prosecution decision, and there is also a requirement for the CPS to take account of the consequences for the bereaved of the decision whether or not to prosecute, and of any views expressed by them. However, neither the CPS nor, indeed, any prosecuting authority is ultimately bound by those views. No prosecution decision is to be made public until after the bereaved, the Coroner’s Office and any potential defendants have been notified. 

As for prosecutions, the Protocol provides that where the CPS and the relevant enforcing authority seek to prosecute offences arising out of the same incident, then such prosecutions should be initiated and managed jointly. It has become common practice in prosecutions for corporate manslaughter, both under the old law and under the recent statute, that they are accompanied by prosecutions under the Health and Safety at Work, etc. Act 1974 and/or regulations made under the Act. It is a matter of debate as to whether or not that is good prosecution practice. Many commentators consider that giving the jury an option of an alternative conviction under health and safety legislation to manslaughter is one of the reasons why manslaughter convictions arising from work-related deaths are, and remain, relatively few and far between.

It is fair to say that, so far, the success of the Protocol has been patchy and depends on the attitude of local Police forces towards health and safety. There can often be tension between the Police and HSE as to the nature and extent of investigations. There is a concern that the Police tend to focus their investigation on the immediate causes of an incident and lack the expertise to get to grips with what can sometimes be complex health and safety management systems. It could be said that this is one of the reasons why the Corporate Manslaughter and Homicide Act 2007 has not had the impact that many were expecting, or hoping for.

Another area where the Protocol has, arguably, not succeeded in its objectives is in the execution of a decision to prosecute without undue delay. This is often because of the historic policy of the HSE to wait until the conclusion of an inquest before commencing health and safety prosecutions. Inquests can take many months, or even years, to be held.

The Executive has recently indicated that it is changing its policy in this regard and will consider bringing prosecutions prior to the inquest in appropriate cases. But it remains to be seen whether this will have an impact on the time it takes to bring health and safety prosecutions within a reasonable timescale.

Jon Cooper is a partner and Lisa Lewins an associate at Bond Pearce LLP. Jon will be speaking on this subject at the SHP Legal Arena at Safety & Health Expo on Wednesday, 15 May at 2pm

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