Health and Safety
Executive / Commission
Enforcement guide
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. 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 offences1.
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.
6. Where a work-related death may have been caused by an individual, that person may be investigated by the police for the offence of gross negligence manslaughter. In order to be found guilty, the defendant must be found to have breached a duty of care owed to the victim. The breach must have caused the death and amount to gross negligence, such that it is regarded by the jury as ‘criminal’ conduct2.
7. Under the Corporate Manslaughter and Corporate Homicide Act 20073, a corporation, partnership or other organisation falling within one of the specified categories will commit an offence if the way in which its activities are managed or organised causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased4. In England and Wales, the offence is known as ‘corporate manslaughter’ and replaces the common law offence of manslaughter by gross negligence in respect of all organisations covered by the Act. The offence is investigated by the police and prosecuted by the CPS.
8. In deciding whether there was a gross breach of duty, a jury in a corporate manslaughter trial must consider whether the organisation failed to comply with any relevant health and safety legislation, and may also have regard to any guidance relating to the alleged breach issued by a health and safety enforcing authority5 (which will include relevant Approved Codes of Practice and HSE guidance).
9. The defendant may also be charged with health and safety offences arising out of the same circumstances, either in the same proceedings or following a conviction, if it would be in the interests of justice6.
10. For further guidance on individual and corporate manslaughter, see OC 165/9.
11. 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 protocol7, 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) and ORR (the Office of Rail Regulation) are signatories to it.
12. 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 165/9.
13. 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' Convention8, which requires prosecuting authorities to have adequate arrangements for liaison in cases of mutual interest. A National Liaison Committee oversees the Protocol and monitors its effectiveness.
14. 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.
15. In particular, the protocol seeks to ensure:
16. A key decision log (KDL) should normally be kept for each investigation into a work-related death9. 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.
17. 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.
18. 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.
19. You should also refer to the section on Collecting physical evidence - Liaison with other authorities.
20. 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. Agreement should also be reached as to which organisation will assume responsibility for the retention of exhibits.
21. The retention and disclosure of material in relation to manslaughter, health and safety or other prosecutions brought by the CPS should follow CPS procedures.
22. 22. 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 held10. Alternatively, HSE may conduct a formal investigation and make a special report on the matter, or authorise another person to do so11.
23. 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.
24. 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.
25. 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.
26. Further information on the role of the Coroner and HSE’s involvement in the inquest process can be found in the sections Chronology of proceedings and the inquest and The Coroner and HSE.
27. 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:
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. Further guidance on contact with bereaved families can be found in OM 2008/07.