1. The Coroner, HSE, police and CPS (Crown Prosecution Service) have different roles and responsibilities in relation to work-related deaths. Further guidance on this issue is contained in the Work-related Deaths Protocol (WRDP). The role of the Coroner is dealt with elsewhere in this section.
2. HSE (or another relevant enforcing authority, for example a local authority) will investigate and, where appropriate, prosecute breaches of health and safety law. The Enforcement Policy Statement emphasises the serious nature of any death resulting from work activities. However, HSE cannot investigate or prosecute individual or corporate manslaughter, or any other criminal offences outside its health and safety remit.
3. The police are responsible for:
4. Whenever a work-related death occurs and there is an indication that an offence of manslaughter (corporate or individual) or a criminal offence other than a health and safety offence may have been committed, the police will conduct an investigation. The police also have an interest in establishing the circumstances surrounding a work-related death in order to assist the Coroner’s inquest. The police have a power of arrest in relation to all offences, including manslaughter and health and safety offences 1.
5. Whenever the police refer a case to the CPS, the CPS will decide whether there can and should be a prosecution. The CPS can prosecute health and safety offences, but generally it will only do so when there is also a prosecution for manslaughter or other serious criminal offences arising out of a work-related death.
England/Wales – Gross Negligence Manslaughter by individuals
6. It must be remembered that the police investigate manslaughter, and the decision on whether a manslaughter charge should be brought rests with the CPS. Manslaughter is a common law offence, and inspectors need to be aware of the legal test for manslaughter for their own information, and so they can engage with the police and CPS who may be considering a manslaughter charge.
7. Each year a significant number of people die in work-related accidents and in some cases one person's death may have been caused by another person's conduct either by act or omission. This raises the question: does that other person's conduct amount to manslaughter by gross negligence?
8. Allegations of manslaughter which fall to be considered in work-related deaths are of the category commonly referred to as "involuntary manslaughter" (i.e. there is no intention to kill or to cause serious injury but the law considers that the person who caused the death is blameworthy in some other way). Within the category of "involuntary manslaughter" is a type of manslaughter known as manslaughter by gross negligence, and it is this which will normally be relevant to work-related deaths.
9. The legal test for manslaughter by gross negligence has been confirmed by the House of Lords in R v Adomako (1995 1 Appeal Cases 171). It is a four staged test, and the essential elements to be established are :-
Duty of Care
10. There are many ways in which a duty of care can arise between one individual and another. In work-related death cases for example the police and CPS may consider whether employees or directors within the same company owed the deceased a duty of care.
Breach of Duty
11. A breach of a duty of care arises if individual who owes the duty fails to act as a reasonable person would do in their position. This is an objective test and will be based upon the defendant's position at the time of the breach. Therefore, if the individual has acted within the range of what was generally accepted as being the standard practice (even if it is at the lower end) it will be difficult to describe such behaviour as falling far below the standard of a reasonable person in his position.
Grossness of the Breach
12. It is for a jury to decide whether the defendant's conduct was so bad, in all the circumstances, as to amount to a criminal act or omission. In work-related death cases this may require the jury to consider any applicable standards, approved codes of practice or guidance and how far below these standards the individual’s conduct fell.
13. The law states that the breach of duty must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death.
Corporate Manslaughter and Corporate Homicide Act 2007
14. On 6th April 2008 the Corporate Manslaughter and Corporate Homicide Act 2007 came into force throughout the UK and created a new statutory offence. In England and Wales and Northern Ireland, the new offence is called corporate manslaughter (CM), and in Scotland it is called corporate homicide (CH).
15. Where any of the conduct or events alleged to constitute the offence occurred before 6 April, the pre-existing common law will apply. Therefore, the Act will only apply to deaths where the conduct or harm, leading to the death, occurs on or after 6 April.
16. CM/CH is investigated by the police and prosecutions are determined, and taken, by CPS. In England and Wales proceedings may not be instituted without the consent of the Director of Public Prosecutions.
17. The new offence is intended to work in conjunction with other forms of accountability such as gross negligent manslaughter for individuals and breaches of duties owed under the Health and Safety at Work Act and relevant statutory provisions. Consequently an organisation facing a charge of corporate manslaughter may, in relation to the same fatality and at the same time, also face a charge or charges of breaching the Health and Safety at Work etc. Act 1974.
18. A corporate body, such as a company, is a legal ‘person’ and can be prosecuted for a wide range of criminal offences. Until the corporate manslaughter/homicide Act came into force, this included manslaughter by gross negligence. To be guilty of the common law offence of gross negligence manslaughter, there must have been a gross breach of a duty of care owed to the victim. Before a company could have been convicted of manslaughter, a "directing mind" of the organisation (that is, a senior individual who can be said to embody the company in his actions and decisions) must also be guilty of the offence. This is known as the “identification principle”, and it made it extremely difficult for organisations, other than the very small ones, to be prosecuted for manslaughter.
19. The government was therefore minded to update the law on manslaughter as it relates to corporations, and to bring in legislation that overcomes the problems created by the identification principle. This places responsibility on the working practices of the organisation, as set by senior management, rather than limiting investigations to questions of individual gross negligence by company bosses. The new law therefore removes the need to identify the ‘controlling or directing mind’ of the company, which is intended to make it easier to prosecute a company, or other employing organisation, for a corporate manslaughter/homicide offence.
20. Section 1 of the Act states that
An organisation is guilty of CM/CH if the way in which its activities are managed or organised causes a person’s death, and it amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
21. The offence is indictable only and upon conviction the penalty is an unlimited fine. In addition, under sections 9 and 10 of the Act, the courts have the power to impose a remedial order, (similar to that which can be imposed for health and safety offences under s42 HSWA), and to require information about the offence and conviction to be published.
22. There are a number of elements to the offence which need to be proved:-
a) The defendant is a qualifying organisation;
In work-related death cases the Act is helpful in that it specifies that “corporate bodies” are qualifying organisations.
b) The organisation causes a person's death;
The Act does not define causation; however it is highly likely the Courts will interpret causation to mean that it more than minimally, negligibly or trivially contributed to the death.
It will not be necessary for the management failure to have been the sole cause of death. The prosecution will, need to show that "but for" the management failure (including the substantial element attributable to senior management), the death would not have occurred. The law does not, however, recognise very remote causes, and in some circumstances the existence of an intervening event may mean that the management failure is not considered to have caused the death.
c) There was a relevant duty of care owed by the organisation to the deceased;
Relevant duties are set out in the Act and include duties in the law of negligence which are owed by employers to their employees or to other persons working for the organisation or performing services for it; duties owed by occupiers of premises and duties owed in connection with the carrying out of construction work.
The explanatory note which accompanied the Act made clear that relevant duties will include duties owed by an employer to provide a safe system of work for its employees.
It is for the trial Judge to determine whether or not the organisation owed the deceased a relevant duty of care. The jury will determine whether that duty was breached and whether that breach was gross.
(d) There was a gross breach of that duty; and once a relevant duty of care has been established any breach must fall far below what could reasonably be expected of the organisation in the circumstances. In considering whether the breach was gross Section 8 of the Act requires the jury to consider any evidence which shows that health and safety legislation was breached. If a jury concludes that health and safety legislation was breached the jury must then consider:-
The jury may also have regard to any relevant health and safety guidance issued by an enforcing authority which exists. This would include approved code of practice and health and safety guidance issued by HSE.
The jury may also consider issues such as “attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any failure… or to have produced a tolerance to it”.
In the context of a work-related death protocol investigation it is highly likely that HSE will be able to assist the police and the CPS in identifying relevant publications, evidence of breach of relevant health and safety legislation and any evidence either current or historical of attitudes, policies etc which may have contributed or encouraged the failure. This may include any previous enforcement action taken by HSE or previous relevant advice.
HSE may also be asked to provide CPS or the police with a view as to how far below the relevant standard an organisation fell. Investigating inspectors should think carefully about whether they are qualified to provide such an opinion and should consider whether specialist inspectors or other experts in the relevant field would be better placed.
(e) A substantial element of that breach was in the way those activities were managed or organised by senior management;
The term "senior management" is defined in section 1(4) to mean those persons who play a significant role in the management of the whole, or a substantial part of, the organisation's activities. This covers both those in the direct chain of management as well as those in, for example, strategic or regulatory compliance roles.
Neither 'significant' nor 'substantial' are defined but the former is likely to be limited to those whose involvement is influential and will not include those who simply carry out the activity.
Whether the activity in question is itself a 'substantial' part of the company's activities will be of great importance in determining if the offence applies, especially where a company has either multiple work strands or is a national organisation with regional managers.
In Work-related Death Protocol (WRDP) cases HSE may have had prior involvement with the company and its representatives and may therefore hold records which are relevant to the nature of the role of individuals in an organisation. Additionally HSE’s prior involvement and knowledge of the company may assist the police and the CPS in reaching a conclusion on whether the activity is a substantial part of the company’s activities.
Other issues in ‘corporate manslaughter/homicide’ Act
23. The Act allows a partnership in England and Wales to be prosecuted in the name of the partnership for corporate manslaughter, as if it was a body corporate. Any fine for conviction of a partnership under this Act is to be paid out of the funds of the partnership.
24. In relation to HSWA offences, a partnership may in certain circumstances have a legal personality and thus be prosecuted in the name of the partnership. If you are investigating a partnership for HSWA offences LAO should be consulted prior to any informations being laid.
25. Partnerships must not be confused with a limited liability partnership, which will always have a legal personality.
26. Remedial orders, requiring the organisation to address the cause of a fatal injury, can be imposed for HSWA offences under section 42 HSWA and, for corporate manslaughter offences, under section 9 CMCHA.
27. On conviction, the court may make a remedial order but only on the application of the prosecutor specifying the terms of the proposed order.
28. Before making an application for a remedial order the CPS must consult the relevant enforcing authority, which may be HSE. HSE may be asked to identify relevant standards to assist the CPS in drafting the remedial order. The order can also include a requirement upon the organisation to supply the relevant enforcing authority with evidence of compliance within a specified period.
29. Any organisation that fails to take the action set out in the order can be prosecuted for failure to do so. This would be the responsibility of the CPS. An unlimited fine can be imposed on conviction.
30. These only apply to offences of corporate manslaughter committed on or after 15th February 2010 and do not apply to HSWA offences. Publicity orders require the organisation convicted to publish, in a manner specified by the court, and within a time period set by the court, the fact that it has been convicted of the offence; specified particulars of the offence; the amount of any fine imposed; and the terms of any remedial order made. Failure to comply with a publicity order is an offence punishable on indictment by a fine.
31. A court proposing to make a publicity order, must consult the relevant enforcement authorities, as it considers appropriate, about the terms of the publicity order. It may also require the organisation to supply evidence to the consulted enforcing authority that the organisation had complied with the requirements of the publicity order. In certain cases HSE may be the relevant enforcing authority.
32. The Act does not apply to certain public and government functions where there exist wider questions of public policy, especially where there are already other forms of accountability. The exemptions fall into two broad types comprehensive exemptions; and partial exemptions. Examples of comprehensive exemptions are police operations dealing with terrorism and violent disorder and military activities. Examples of partial exemptions i.e the Act does not apply unless the death relates to the performance by that organisation of duties owed to its employees include the emergency responses such as fire and rescue and the ambulance services.
33. Crown immunity does not apply to offences under the Act, however certain Crown bodies may fall to be considered within the context of the comprehensive or partial exemptions.
34. The CM/CH Act states that, where there is a charge of corporate manslaughter or corporate homicide arising out of a set of circumstances, then there may also be a charge against the same defendant, in the same proceedings, for a health and safety offence, arising out of some or all of those circumstances – and the jury may return a verdict on each charge.
35. In addition, an organisation that has been convicted of CM/CH arising out of a particular set of circumstances, can be charged subsequently with a health and safety offence, arising out of some or all of those circumstances. (Note, this doesn’t apply where the corporate manslaughter/homicide charge has been heard and dismissed).
36. This means that, even if a CM/CH charge has been laid, or even heard and the organisation convicted, additional health and safety charges may still be taken against the organisation - even if they arise out of the same circumstances. Given the working relationships envisaged under the WRDP this would be highly unlikely and such cases should be referred to LAO prior to any informations being laid.
37. There is no individual liability arising from the CM/CH Act. Individuals cannot be guilty of aiding, abetting, counselling, or procuring CM/CH.
38. Unlike offences of gross negligence manslaughter and offences of breaching Section 37 of HSWA there is no power to arrest any individual or director on suspicion of an offence of corporate manslaughter. An authorised director can however be interviewed under PACE in their capacity as a representative of the company suspected of corporate manslaughter
39. Corporate manslaughter is, in England/Wales, added to the list of charges, in section 16 of the Coroners Act 1988, which must be heard before an inquest is held.
Involvement and powers
40. Not all manslaughter/homicide investigations will involve HSE, or LAs, even if there is a work-related element. There are some areas that others generally deal with, e.g. food hygiene issues, or civil aviation incidents etc.
Section 20 powers
41. HSE’s role in a WRDP investigation is to jointly investigate with the police the health and safety aspects of work-related deaths and to identify and investigate any potential breaches of the HSWA and other relevant statutory provisions.
42. The police do not have the same general powers as HSE Inspectors have under Section 20 of HSWA, and there may be occasions when the use of our powers will assist the police investigation.
43. In WRDP joint investigations it is open to HSE Inspectors to use their Section 20 powers to gather evidence so long as the exercise of that power is necessary to carry into effect any of the relevant statutory provisions. Consequently Inspectors must be careful to ensure that they are using their powers legitimately and reasonably for HSE’s purposes.
44. Relevant evidence obtained using Section 20 powers can be disclosed to the police and the CPS.
45. Where joint investigations have identified corporate suspects who are suspected of both corporate manslaughter and HSWA offences consideration should be given as to whether it is appropriate to caution and interview the company for all offences at the same time. For example a company could be cautioned and interviewed for offences of corporate manslaughter and breaching Section 2(1) of HSWA. Similar considerations would apply to individuals where individual suspects are suspected of both gross negligence manslaughter and breaching Section 37 of HSWA.
46. If a conclusion is reached that the interview should adopt this form HSE and the police should discuss in advance their respective roles in these interviews and the relevant areas for questioning. Such discussions should include whether the HSE inspector should be present at the interview and contribute to the questioning, assist the police with advanced question sets and/or be present to remotely observe the interview to suggest follow up questions. The preferable course of action is for HSE to assist with questions sets and be present at the interview to ask questions directly. In all cases the police would lead on the questioning with HSE assisting the police as agreed following the discussions mentioned above with advanced question sets or follow up questions having observed the interview usually outside the interview room.
47. There are many benefits to suspects suspected of both HSWA and CM/GNM offences being interviewed at the same time for all offences. Firstly, it reduces the amount of time and resources expended upon PACE interviews by both investigation teams and suspects. Secondly, a significant proportion of the questions relevant to HSWA offences will be relevant to CM/GNM and vice versa and the opportunity to deal with all relevant matters at the one time avoids confusion and lack of clarity. Thirdly, if a decision is taken by the CPS that there should be no prosecution for either gross negligence manslaughter or corporate manslaughter and HSE decides to prosecute for a HSWA offence, the answers given by suspects under caution are more likely to be admissible in HSWA proceedings if the suspect was cautioned for a HSWA offence.
48. Guidance on HSE involvement and resources in work-related death investigations can be found in OC 165/10. There are a number of aspects of the Corporate Manslaughter / Corporate Homicide Act that may increase our potential involvement. These include:
49. Therefore the potential effect on our front-line resources may be significant. We should seek to manage our input wherever possible, whilst being aware of the need for HSE to be, and be seen to be, as helpful as we reasonably can to those charged with the task of investigating manslaughter/homicide.
50. The CPS are responsible for prosecution decisions in corporate manslaughter and corporate homicide cases. HSE may be able to assist the CPS in their decision-making by informing them of relevant health and safety legislation, approved codes of practice, guidance and other relevant benchmarks but the CPS has the final decision. Suitably qualified HSE and HSL employees may also be able to assist the CPS by providing expert opinion including, in some cases, a view upon how far below an applicable standard the organisation fell.
51. In WRDP cases where the CPS are considering a prosecution for corporate manslaughter and HSE has identified breaches of health and safety legislation the HSE investigating inspector in consultation with his/her Principal Inspector should provide the CPS with a list of breaches to enable the CPS to reach an informed decision upon whether the CPS should also charge an organisation with a HSWA offence or offences. It is important that the CPS has this information before an organisation is charged with corporate manslaughter and therefore investigating inspectors should liaise with the police and the CPS to ensure they are aware of the decision-making timetable.
52. These interlinking and overlapping responsibilities require close co-operation and liaison between the different agencies that are involved. To ensure that investigations into work-related deaths allow all the agencies to fulfil their roles, a protocol 2, which deals in greater detail with each stage of the investigation, has been drawn up; HSE, ACPO (Association of Chief Police Officers), BTP (British Transport Police), the CPS, the LGA (Local Government Association), ORR (the Office of Rail Regulation), the Maritime and Coastguard Agency (MCA) and the Chief Fire Officers’ Association (CFOA)are signatories to it.
53. The Protocol is not intended to replace the instructions contained in the operational procedures, and HSE staff should continue to follow the procedures. For example, the Protocol does not seek to set down whether or not we investigate any particular death, (that is covered by our incident selection procedure and other relevant guidance, such as the HSWA S3 policy etc.), but does set down the framework for liaison with other organisations in those cases where we do decide to investigate.
54. Decisions relating to investigation/prosecution will be co-ordinated in accordance with the protocol. It is complemented by the Work-related Deaths Investigators' Guide, which provides helpful practical guidance on following the principles of liaison set out in the protocol. Further guidance on the protocol, and on arrangements for liaising with the police and other investigating authorities, can be found in OC 165/10.
55. The protocol provides a framework for effective liaison and is based on best practice. It aims to achieve a consistent approach between HSE’s operational directorates and divisions, the 43 police forces in England and Wales and the respective CPS offices, while at the same time allowing flexibility on a case by case basis. It addresses the Prosecutors' Convention 3, which requires prosecuting authorities to have adequate arrangements for liaison in cases of mutual interest. A National Liaison Committee, supported by Regional Liaison Committees, oversees the Protocol and monitors its effectiveness.
56. The protocol applies to any incident arising out of, or in connection with work, resulting in one or more fatalities, or injuries so serious there is a clear indication, according to medical opinion, of a strong likelihood of death. The addition of cases where injuries are likely to lead to death are to facilitate early liaison, discussion and involvement of all relevant organisations in the initial stages of such cases. The inclusion of the words “clear indication” and “according to medical opinion” mean that HSE staff are not placed in the position of having to make a judgement on the clinical outcome of any injuries, and we can rely on information provided by medical experts.
57. Where you are investigating an incident with other enforcing/investigating authorities, you should ensure that the protocol is brought to their attention and, where necessary, a copy provided to the senior investigating officer.
58. In particular, the protocol seeks to ensure:
59. A key decision log (KDL) should normally be kept for each investigation into a work-related death 4. The protocol states that policy and key decisions should be recorded, and use of a KDL will help to ensure that a consistent approach to record-keeping is maintained between HSE and the other signatories.
60. Where primacy in an investigation passes from one authority to another (for example, from the police to HSE following a decision by the CPS not to bring a manslaughter prosecution), the handover should be formally recorded. HSE has prepared a suggested format for such a handover document, a signed copy of which should be retained by each of the authorities involved.
61. You should be aware of the involvement of other enforcing agencies when carrying out an investigation. These may include bodies such as the Environment Agency, MOD Police and HM Revenue & Customs. Their roles may be very different to that of HSE. Consequently, early arrangements for liaison can prevent difficulties with investigation at the scene, evidence collection and, at a later date, witnesses. HSE is a signatory to the Prosecutors’ Convention, which provides for effective decision-making and handling of investigations – regardless of whether there has been a death - where more than one prosecuting authority is involved.
62. You should also refer to the section on Collecting physical evidence - Liaison with other authorities.
63. Where there is an investigation under the protocol, any material obtained should be shared between the authorities involved, subject to any legal restrictions on disclosure. Relevant legislation includes the Anti-Terrorism, Crime and Security Act 2001 - section 17 - which allows for the disclosure of information in connection with criminal investigations and prosecutions between public authorities provided it is proportionate to what is sought to be achieved by disclosing it. Under this provision inspectors are no longer prohibited from disclosing evidence obtained as a result of using section 20 powers.
64. If HSE is taking, or considering, prosecution for health and safety offences then we need to identify what relevant material (used and unused) others have obtained throughout the course of their investigation. We will need access to all such material, so we can, in England and Wales, meet the requirements of the Criminal Procedures and Investigations Act 1996.
65. In the event of HSE assuming primacy for the investigation in England/Wales, both used and unused relevant material should be requested from the police, and other authorities who may have such material, paying particular attention to any sensitive material. Relevant material from the police should be passed to HSE as part of the formal handover procedure and should be detailed in the handover document (see para 60 above) It will be the responsibility of the Disclosure Officer to categorise the material and to determine, under CPIA, which material in the prosecutor’s opinion might reasonably be capable of undermining the prosecution case, or of assisting
the case for the accused. Guidance is given in the Investigation - Pre-Trial section of this Enforcement Guide (England and Wales).
66. The retention and disclosure of material in relation to manslaughter, health and safety or other prosecutions brought by the CPS should follow CPS procedures.
67. You should bear in mind the possibility that in serious incidents, particularly those involving multiple fatalities, HSE may, with the consent of the Secretary of State, direct that a public inquiry be held 5. Alternatively, HSE may conduct a formal investigation and make a special report on the matter, or authorise another person to do so 6.
68. Where HSE has received notification of a fatality, you should inform the relevant Coroner’s office whether HSE is involved in investigating the death. You should enquire as to the cause of death recorded for the deceased as this may be relevant to your investigation, and maintain regular contact with the Coroner’s office throughout the investigation.
69. The Coroner may wish to visit the scene of the accident. Where you are aware of this, you should consider whether to accompany the Coroner on this visit.
70. Where HSE is involved in the investigation, you should remind the Coroner that HSE should be informed when the inquest is to be held (see Chronology of proceedings and the inquest). Whilst HSE may be investigating a work-related death, the Coroner remains responsible for performing his/her statutory functions, including investigating the cause of death and conducting the inquest. It is important that HSE and the Coroner benefit from an effective working relationship, which is now underpinned by the Memorandum of Understanding between HSE and the Coroners’ Society.
72. When inspectors from any division of HSE are called upon to investigate a fatal incident, it is HSE policy that early contact with the bereaved family is made in every case, in order to:
73. Where the police are taking the initial lead in an investigation, a Family Liaison Officer may have been appointed to liaise with the family. In these circumstances, you should still contact the family in order to advise them of HSE’s involvement and role in the investigation. You should liaise with the police accordingly.
74. Inspectors should keep the bereaved relatives informed of the progress of the investigation and any subsequent proceedings. The method and timing of these contacts should be established by agreement with the family. It may be necessary to explain what information HSE can release at different stages of the investigation and any future proceedings.
75. It may be necessary to explain what information HSE can release at different stages of the investigation and any future proceedings. It is important that the bereaved understand that an inquest is not a trial; questions of criminal and/or civil liability do not form part of the inquest but may be the subject of other proceedings. Case law indicates that Coroners are not obliged to disclose any witness statements in their possession in advance of an inquest, and nor can they require an authority charged with a criminal investigation to do so (See the Coroner and HSE). Where full disclosure of statements and other written material obtained in the course of the HSE investigation is not made because of the potential for prejudice to any future criminal proceedings, you may need to explain this to the bereaved.
76. Statements and/or exhibits should only be disclosed to the bereaved prior to an inquest if they have also been disclosed to the Coroner and made available to the other interested persons. However, providing information to the bereaved other than by disclosing written material might help them prepare for the inquest process. You will have to use your discretion in deciding what you can say, balancing the needs of the bereaved with the risks of prejudicing ongoing investigations and whatever fairness requires as regards other interested persons. It will be helpful to the Coroner for him/her to know that you have liaised with the bereaved and what you have been able to tell them.
77. In investigations where a member of the bereaved family may be involved as a potential defendant, then all contact should be carefully planned and agreed with line managers. If necessary, you should contact Legal Adviser’s Office for further advice.
78. HSE acknowledges that understanding diversity plays an important part in liaising with bereaved relatives. Inspectors should be sensitive to the potential diversity of bereaved families, and all those with a direct and close relationship with the deceased should be treated fairly, with decency, dignity and respect.
79. Further guidance on contact with bereaved families can be found in Operational Minute 2008/07.