Work-related deaths: liaison with police, prosecuting authorities, local authorities, and other interested authorities including consideration of individual and corporate manslaughter / homicide.

OC 165/10

Summary

This Operational Circular should be read in conjunction with the relevant sections of the Enforcement Guide (England and Wales) and the Enforcement Guide (Scotland) under Work-related deaths and inquests and replaces OC 165/9. Further guidance can be found in HSE's operational procedures, its associated guidance, the Work-related Deaths Protocols, the Memorandum of Understanding between the Coroners' Society of England and Wales and the Health and Safety Executive, and the Investigators Guide.

Purpose

This OC:

• Describes the current arrangements for liaison between signatories of the Work Related Deaths Protocols (WRDP) following work-related deaths ie
  • HSE;
  • police forces (including transport police);
  • local authorities;
  • the Office of Rail and Road (ORR);
  • Maritime and Coastguard Agency (MCA);
  • Fire and rescue services (through the Chief Fire Officers' Association (CFOA);
    • Medicines and Healthcare products Regulatory Agency (MHRA) Medical Devices Division;
  • Crown Prosecution Service (CPS); and, Crown Office and Procurator Fiscal Service (COPFS).

  Other organisations have agreed to abide by the WRDP, or have been made aware of the its principles. These are detailed in paragraph 7 of this OC;

• outlines the Work-Related Deaths Protocols agreed between HSE and relevant organisations, and the mechanisms for regional and national liaison;
• sets out the similarities, and the differences, between the English/Welsh and the Scottish Protocols (See paragraph 3 and Appendix 1);
• contains advice on the recording of information and key decisions and guidance on disclosure of information between signatory organisations and other interested parties;
• provides guidance on the timing of criminal proceedings in a work-related death case.

Introduction

1) This OC provides guidance on work-related deaths and liaison with the police, CPS and other enforcement authorities. It makes significant reference to, and should be read in conjunction with two Work-related Death Protocols, one applicable to England and Wales, and the other to  Scotland. The English and Welsh version, Work-Related Deaths - A Protocol for liaison was introduced in 1998 in England and Wales after it was recognised that there was a need for investigating and prosecuting authorities to engage with each other and to share information and best practice.  Scotland introduced its own version, Work-related deaths - A protocol for liaison (Scotland) in October 2006.

2) In May 2011, revisions to the WRDP (England and Wales) were agreed by the Work-related Deaths National Liaison Committee (NLC). The Protocol has been amended and the principal changes in the 2011 edition include:-

1. revision of paragraph 10.3 giving the option, where appropriate, for HSE and other enforcement authorities to commence criminal proceedings in relation to health and safety offences before a coroner's inquest,
2. the inclusion of the Office of Rail Regulation (ORR); the Maritime and Coastguard Agency (MCA); and the Chief Fire Officers' Association (CFOA) as signatory organisations,
3. updates to the text to reflect organisational and administrative changes.

3) On 1 April 2012, the Medicines and Healthcare products Regulatory Agency (MHRA), Medical Devices Division became a signatory to the WRDP. It should be noted that the MHRA is made up of a number of divisions, and it is only the Medical Devices Division that has become a signatory. The WRDP has not been amended but the inclusion of the MHRA Medical Devices Division as a signatory has been summarised in an Addendum to the protocol.

Scotland

4) Scotland has its own version of the WRDP (Scotland). The Protocol has been agreed between the Crown Office and Procurator Fiscal Service (COPFS), HSE, Office of Rail and Road (ORR), Association of Chief Police Officers in Scotland (ACPOS), and the British Transport Police. The Scottish LA's (Convention of Scottish Local Authorities – COSLA) are not a signatory, but support the protocol and aim to work in accordance with its recommendations. Additional guidance may be found in the Operational Procedures and the Enforcement Guide (Scotland).

5) Many parts of the text of the Scottish Protocol are identical to the text of the English/ Welsh, and generally only depart from the E/W version where the Scottish legal/administrative system requires it. The differences are principally about the prosecution and fatal accident inquiries processes, and how the role of the COFPS differs from the role of the CPS. Appendix 1 sets out the principal similarities and differences between the E/W and Scottish versions.

Work-related Deaths National Liaison Committee

6) The National Liaison Committee (NLC) is made up of representatives from the signatory organisations (for England and Wales) and is responsible for the strategic overview of the principles of the Protocol. The NLC monitors the performance of the WRDP, and makes suggestions for improvements as necessary to ensure its continued effective operation. Local liaison groups, which support the NLC, meet regularly to discuss issues of mutual interest and concern from a local standpoint. A local liaison group has been set up in Scotland comprising of representatives of the four signatory organisations.

New Signatories to the English and Welsh Protocol

7) Following it's establishment, the Office of Rail and Road (ORR) became a signatory of the WRDP on 1 April 2006. During the last review of the WRDP by the NLC in 2010/11, the Maritime and Coastguard Agency (MCA) and the Chief Fire Officers' Association (CFOA) agreed to become full signatories to the WRDP. Both these organisations had previously agreed to abide by the principles of the Protocol without becoming full signatories. As detailed in paragraph 3, on 1 April 2012 the Medicines and Healthcare products Regulatory Agency (MHRA), Medical Devices Division became a full signatory to the WRDP.

8) Other organisations acknowledging the Protocol and its principles of liaison are the Marine Accident Investigation Branch (MAIB), the Air Accidents Investigation Branch (AAIB), Civil Aviation Authority (CAA) and the Independent Police Complaints Commission (IPCC) . Memorandums of Understandings entered into between HSE and these, and other, organisations exist to promote joint co-operation and to minimise duplication of effort.   

Operational procedures

9) HSE's Operational Procedures set out how we carry out our activities and, similarly, the police and other organisations have their own internal procedures and instructions, eg  ACPO 'Murder Investigation' Manual 2006, ACPOS 'Road Deaths Investigation' Manual 2008.

10) HSE's Operational Procedures have been modified to take into account changes to the English and Welsh Protocol, and in particular those relating to the timing of criminal proceedings contained in paragraph 10.3 of the Protocol (see Part 10 of this OC).

11) The following guidance (which also includes background information on the main issues and key objectives of the Protocol), has been drafted so that its sections mirror that of the Protocol.

Part 1: The Protocol – Statement of Intent

12) The Protocol sets out the principles for effective liaison between the organisations responsible for investigating work-related deaths (including deaths within the signatory organisations). Its intention is to ensure that investigations of work-related deaths are thorough, appropriate, with clear decisions on primacy and direction.

HSE Involvement

13) The Protocol refers to investigations being conducted jointly, with one of the parties taking the lead, or having primacy, as appropriate. The police will, in most circumstances, assume primacy where manslaughter is suspected. This does not mean the police should investigate alone, or that only manslaughter, or other serious offences (other than health and safety offences) should be investigated. Where the police have primacy they will also have responsibility for the management of the overall investigation. However HSE, and other relevant authorities, should remain actively involved in key decisions, such as: how the investigation will proceed, who should be interviewed, the content and timing of interviews, what physical evidence is needed, the arrangements for communicating with victims and others including the media, the nature of any prosecution etc. The investigation of any health and safety offences should proceed in parallel with the police investigation of manslaughter.

14) The investigation should be pursued in such a way that will best serve the public interest, and enable there to be a sound criminal investigation of all the relevant circumstances. The aims of this joint investigation will include:

• establishing whether prosecution is warranted, and if so whether for manslaughter (or other serious criminal offence), HSWA offence(s), or both and;
• gathering admissible evidence where prosecution is warranted.

15) The authority with primacy, is expected to ensure appropriate discussion and agreement with the other enforcement authorities on progressing the investigation, and in particular, the items covered by paragraph 3.3 of the Protocol (para 18 in the Scotland version).

Road Traffic Incidents

16) The police will take the lead in most road traffic incidents (RTI) on the public highway. The exceptions, where HSE is likely to be involved and possibly to have primacy, include fatal incidents involving the carriage of dangerous goods, work vehicles manoeuvering in, out and in close proximity to the work premises or other work on or near the public highway, such as construction or roadwork activities. HSE may also be involved in aspects of some RTI cases, eg where there is indication of significant underlying health and safety management failings. For all other work-related RTIs, HSE staff should not normally have 'on the road' presence during the initial investigation. Further guidance can be found in HSE's policy and guidance on section 3 HSWA.

Work-related death arising out of police activity

17) HSE may investigate  some incidents involving the police  where it is appropriate for us to do so (see HSE's policy and guidance on section 3 HSWA). If an investigated incident involves the police as a duty holder, a separate police force may be asked to investigate. In Scotland, the PF has a duty to investigate cases of possible criminal offences by the police. For serious cases the fiscal is likely to ask another police force to carry out the investigation. This does not affect the principles of liaison in the Protocol in any way. HSE will continue to liaise, under the terms of the Protocol, with whichever force is investigating manslaughter, or homicide, or other charges in relation to the death. We would also continue to communicate with the police force involved in the incident, as we would with any other duty holder and/or suspect. There may be cases where there is no separate investigating police force, or cases involving the Independent Police Complaints Commission (IPCC), or internal police disciplinary or criminal investigations. Whatever form these take, we should ensure that possible health and safety offences are properly and promptly investigated, and we would maintain the liaison and joint-management principles of the Protocol, and liaise with whoever is conducting any criminal inquiry, as envisaged by the Protocol.

Deaths in health care

18) Since 1 April 2015, the Care Quality Commission (CQC) has taken the lead role for patient and service user health and safety in health and adult social care in England. There is a Memorandum of Understanding between CQC, HSE and Local Authorities which sets out the respective responsibilities in England for dealing with health and safety incidents and includes examples of incidents typically falling to CQC and HSE/LA respectively (see also guidance at Who regulates health and social care). These changes do not affect Wales and Scotland. Deaths in premises used for healthcare, or during medical care, can be particularly complicated, and there may be a number of interested investigation bodies, regulators and enforcers. These organisations can change, and merge, over time and if there is any doubt or concerns over the roles and responsibilities of these organisations then advice may be sought from the Public Services Sector. There is considerable potential for overlap and for conflicts of interest, and consideration should be given to HSE's section 3 policy and guidance.

19) As detailed in paragraph 3 above, the MHRA's Medical Devices Division is now a signatory to the WRDP. The Medical Devices Division has a role in investigating fatal and non-fatal accidents. It has powers under the various Medical Device Regulations. It can have non-compliant products or unsafe devices removed from the market, as well as prosecute manufacturers for breaches of the various Medical Device Regulations. In addition to the MoU detailed above in paragraph (17), formal arrangements have been agreed between the HSE and the MHRA's Medical Device Division and are detailed in Arrangements for liaison between the Health and Safety Executive (HSE) and the Medicines and Healthcare Products Regulatory Agency (MHRA), Medical Devices Division.

Investigators guide

20) The Investigators Guide was written by police officers representing ACPO in England and Wales, and subsequently agreed for issue by the NLC, its use is not mandatory. It provides a practical step-by-step approach with its main focus on the duties of the first person attending the scene - which, in most cases, will be the police. Of particular relevance to HSE are the actions required of the officer listed in Part 2 below. The Guide has been amended in light of changes to the WRDP agreed in May 2011.

21) Specific Guidance notes to accompany the Scottish Protocol have been drafted by  the COPFS, HSE, ACPOS and the British Transport Police, however the document is yet to be published and is subject to review.

Part 2: Initial action at scene

22) The police officer first attending the scene of a work-related death will, subject to any ongoing emergency service or rescue activity:-

• take control to protect and retain the scene;
• notify and advise a Senior Investigating Officer (usually a Detective Inspector or above);
• seek to establish contact with the health and safety enforcing authority eg HSE, LA, ORR etc;
• consider primacy and HSE involvement under the Protocol;
• consider the investigation management issues listed in para 3.3. of the English/Welsh Protocol (para 18 in Scotland).

Annex A of the Protocol gives general guidance to the police on enforcement demarcation under the Health and Safety (Enforcing Authority) Regulations 1998.

23) The Protocol requires that a police officer of supervisory rank should attend the scene and assume responsibility for the overall investigation. In most cases, it will be a detective, and often will be a Detective Inspector or above.

24) Whilst HSE may not be first on the scene, early conversations with the police, by telephone if necessary, can greatly assist with the preservation and security of the scene, the identification of witnesses, and retention of important evidence. Where HSE is informed of a work-related death at a site where the conventional police forces do not operate, eg nuclear sites where the Civil Nuclear Constabulary and MoD Police have jurisdiction, the WRDP should be brought to their attention and the principles followed as closely as possible. A range of police forces (other than the usual area constabularies), MoD police, Ports police etc, have been advised of the Protocol and although not formal signatories, they have stated their acceptance of its principles and expectations, and confirmed that they are committed to work and liaise within them.

25) Inspectors should take copies of the Protocol with them when first attending site. Past experience has proven the importance of ensuring that, at an early stage, police officers are aware of the Protocol and that it has been adopted by ACPO (England and Wales) and ACPOS (Scotland). It should benefit the investigation in the initial stages, if Inspectors explain HSE's presence, interest and involvement.

Part 3: Management of the investigation

General

26) In the initial stages the police will usually lead the investigation, at least until due consideration has been given to possible manslaughter (culpable homicide in Scotland) enquiries. It is important that a clear decision is made on primacy, and that this is recorded. It should involve discussion between the police, HSE (as the health and safety investigating and prosecuting body), and any other enforcing authority that may have an interest. The Investigators Guide refers to this as a 'critical review', and points out that there may need to be further such reviews as the investigation progresses. As indicated in paragraphs 13 to 15 above, the continuing investigation should be one that is jointly managed and conducted, irrespective of which authority has primacy at any given point in time. The primacy/lead may change more than once during the course of an investigation, eg where the initial Police lead has been transferred to the HSE, if new information comes to light the lead may be passed back to the police – or vice-versa (see paragraphs 25 and 31 of this OC).

27) Experience has shown that an early face to face meeting between HSE and the police is valuable, it helps set the investigation off on the right foot via:

• establishing primacy;
• agreeing a way forward on the issues listed in para 3.3 of the Protocol (para 18 of the Scottish version);
• sets milestones (para 3.2 of the Protocol, and para 17 in Scotland);
• agreeing to further meetings to review jointly the emerging findings and next steps.

In most cases it will be appropriate to continue to meet periodically to plan, review and agree each successive stage in the investigation.

28) Early involvement of CPS, or COPFS, can be of great assistance to an investigation, eg to advise on: the law of manslaughter or culpable homicide and issues surrounding the admissibility of evidence. Investigations into gross negligence manslaughter, culpable homicide, or 'corporate manslaughter/homicide' are relatively rare, and the offences are in complex areas of the law.

29) It is the responsibility of the authority with primacy to lead the management of the investigation. A vital part of the management of the investigation by the lead authority is to ensure agreement on progression of the investigation, taking account of the interests of the other enforcing authorities involved, in particular, the points covered in paragraph 3.3 [para 18 in Scotland] of the Protocol. These are:

(a) Resources -

1. The police, HSE and other investigating authorities will have access to a wide and varied range of specialist and expert resources. The investigation team should take account of the expertise within all these organisations, consider what they can each bring to the investigation, and decide how best use can be made of available expertise to effectively progress the joint investigation and avoid duplication. For example the police have access to police forensic scientists and crime scene investigators, who may be able to assist HSE. Similarly, HSE may be able to provide specialist scientific and technical assistance from Specialist Inspectors and HSL, covering not only mechanical, electrical, occupational health matters, but also disciplines such as human factors, or visual display services.
2. The investigation team may also have to consider the different evidential needs of the police and HSE. For example, to prove manslaughter there has to be evidence of the cause of death, which may require forensic evidence. Health and safety offences do not need proof of cause of death because an offence under HSWA only requires the defendant to have failed to take certain steps to properly control a risk. It is not necessary to prove that death resulted from this risk (although if death was a consequence of a breach then that would be an aggravating factor in any sentencing).

(b) Sharing of evidence between investigating parties

1. Arrangements should be made for sharing evidence between investigating parties (eg by providing copies of statements and documents routinely) and, subject to legal restrictions, for the retention and disclosure of all material. The arrangements should include agreement on the collection, recording, retention, and access to primary evidence which may be taken into possession during the initial stages of the investigation.
2. Where primacy passes from one party to another, a handover document should be produced to clarify the exchange of relevant material and evidence. In general there is no bar to the sharing of information, including evidence and statements, between criminal investigators, where the purpose is to further a criminal investigation, or to aid the prevention and detection of crime, and it is proportionate to do so. Further guidance can be found in the Enforcement Guide - work related deaths and inquests, investigation page.
3. It should be noted that where an investigation involves equipment that is supplied throughout the EU a notification to the European Commission is required; this will ensure that we comply with relevant European Product Safety Legislation. In order to comply with this requirement we may need specific information from other authorities, including the police, CPS and COPFS before the case is taken to court or handed back to HSE. The information required can be obtained from the Local Product Safety team. Guidance on this issue can be found on the HSE intranet.

(c) Interviewing witnesses and suspects -

1. The Senior Investigating Officer (SIO) for the police and the inspector leading the HSE investigation should agree the interviewing strategy and ensure that interviews are planned, co-ordinated and conducted in a way that best meets the overall needs of the joint investigation. The police SIO and lead HSE inspector should agree who are possible/likely suspects and key witnesses for both manslaughter/homicide and health and safety offences – and also for other non-manslaughter offences that may be investigated by police forces, eg some road traffic offences. Companies and other bodies corporate can be suspects, as well as individual persons. Consideration should be given to what HSE can bring to the interview by way of knowledge and expertise, eg technical, scientific, H&S management systems. The ultimate responsibility for selecting interviewers and the content for any interview rests with the senior investigating officer of the organisation having primacy at the time. However this should be with the agreement of the other investigating authorities.
2. Generally, it will be advantageous for manslaughter/culpable homicide and health and safety matters to be dealt with in one interview. This will save time and avoid the need for repeated interviews, which could be viewed as being oppressive. It must be made clear at the start of an interview to the suspect that they are being questioned by more than one authority in relation to the investigation of both manslaughter/culpable homicide and health and safety offences and that replies might be used in connection with either. Either party may take the lead in witness interviews whilst the other contributes to the questions. However, it will be appropriate for the police to take the lead when interviewing suspects for manslaughter/culpable homicide offences or where the suspect has been arrested.
3. Where a joint interview is not possible or appropriate then other means should be provided to ensure that all interests are dealt with. This could involve, for example, providing  remote monitoring, eg audio link, so the non-interviewing investigating authority can listen to the interview and give feedback to the interviewers during appropriately planned breaks. Alternatively, the organisation not present at the interview can provide the interviewer(s) with questions, or with details of areas to be covered in the questioning.

(d) Investigating organisational failures -

• Where lines of enquiry point towards corporate or organisational failures, HSE should discuss with the SIO how, and to what extent, they will be investigated. In most circumstances, HSE will take the lead in investigating management failures. However, we may use our powers under HSWA only for our own purposes, and we cannot use our powers solely at the request of, and for the sole purposes of, the police. If we do investigate health and safety management issues legitimately and honestly for our purposes then, having done so, we may share the information we obtained with the police and other criminal investigators.

(e) Keeping the bereaved and others informed

1. Where the police provide a family liaison officer (FLO) this is the preferred method of co-ordinating contact with the bereaved. Contact should be made with the FLO and responsibilities for communicating with the family should be agreed, so that all concerned are clear about who will provide information to the family and what that information will be. Even where the police have the lead, inspectors should still offer to meet the family (with the FLO) to explain our role in the joint investigation and provide them with a letter and a leaflet. If it is not possible to meet the family, providing a written briefing for the FLO to use is likely to be helpful. In the event of the police withdrawing from the investigation, an agreement should be made whether the FLO should continue their role. It should be borne in mind that HSE inspectors are not trained as FLOs and are neither able, nor expected, to take on or replicate the FLO role. Our role is principally to ensure communication with the bereaved so they can be informed of the progress and actions of our investigation, and relevant information on remedial action that has been taken to prevent a recurrence of the incident - in so far as we are able to do so. Whilst, during the period of police primacy, we may be able to communicate with, or alongside, the police FLO, we should remember that, in most cases, the continuing investigation and primacy is often passed back to HSE. We will therefore need to ensure that we have made contact with the bereaved so that we, and our investigation, are known to them and they are aware of our involvement from the very start of the joint investigation. When primacy passes back to HSE we will need to make contact with the bereaved so we can also take their views into account, as required by the Code for Crown Prosecutors (paragraphs 4.18 – 4.20), and the Prosecution Code (see OM 2003/106). Guidance on taking Victim Personal Statements can be found in OC 130/12.
2. For investigations where HSE has primacy and there is no FLO, inspectors should follow the instructions in Contact with relatives of people killed through work activities for keeping the bereaved informed. Specific guidance should be referred to when keeping victims (in England and Wales) and those involved in fatal accident inquiries (in Scotland), informed.

(f) Media -

• There should be discussions with the Police, and other relevant authorities, including the CPS/COPFS, on an effective joint media strategy. Advice and support may be obtained from HSE's Press Office, and/or local Government Information Officers. It is advisable to involve them at the earliest available opportunity – taking into consideration the circumstances of the case, including the sensitivities of the bereaved and those involved in the incident.

30) Paragraph 3.4 of the Protocol (paragraph 19 in the Scotland version) refers to a strategic liaison group. It is envisaged that any such group would be set up only as an exception, and possibly for the major investigations involving a number of enforcing and investigating authorities, and possibly, also involving difficult and complex technical or legal issues, or a number of potential dutyholders and suspects. The setting up of a strategic liaison group would generally be initiated by the investigation team, and would reflect the major incident procedures of the organisation involved.

Part 4: Decision making – and recording

31) All key decisions made by the HSE throughout the course of the joint investigation and any subsequent enforcement action must be recorded in the Key Decision Log (KDL). Each investigation must have its own KDL. Guidance on the use of KDLs can be found under the Investigation - Additional guidance pages of HSE's operational procedures.

32) KDLs are for HSE's decisions, or for decisions affecting HSE and our investigation only, and should, be completed at all stages of an investigation, including periods when the police have primacy.

33) Special note should be taken of paragraph 4.3 of the England/Wales Protocol (paragraph 23 in the Scotland version). Where primacy has been passed to HSE from the police, if during HSE's investigation, new information is discovered which may assist the police in considering whether a serious criminal offence has been committed (other than a health and safety offence), HSE should pass the new information to the police, or CPS/COPFS, so that they can then take a view as to whether, in the light of the new information, they wish to reopen homicide considerations and reassume primacy. A record should be made in the KDL and an investigation handover document should be completed. The role of HSE, and the support we can give, in relation to manslaughter and culpable homicide (both individual and corporate) is set down in the Enforcement Guide - work related deaths and inquests, investigation page (England and Wales).

Part 5: Disclosure of material

34) In cases where others (police, CPS or COFPS) are taking forward a prosecution, then HSE should provide them with details of all relevant material in HSE's possession, and be prepared to provide copies of relevant material, if requested. Where HSE assumes primacy of an investigation, both used and unused relevant material should be requested from the police, and other authorities who may have such material. On receipt, the material should be categorised accordingly, with sensitive material receiving particular attention.

35) Guidance on disclosure in England and Wales under CPIA is provided in the Investigation - Pre-Trial and Work-related deaths and inquests sections of the Enforcement Guide (England and Wales). Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 now applies in relation to disclosure in Scotland. A Code of Practice has been produced by the COFPS, and internal guidance, Disclosure in Criminal Proceedings Scotland has been produced for HSE staff. A copy of the guidance can found in the Guidance and Procedures section of HSE's Scotland Communities website.

Part 6: Special Enquiries

36) In some cases, particularly those involving multiple fatalities, the Executive (HSE) may direct that a public inquiry be held, or under section 14(2)(a) HSWA may authorise HSE to investigate and produce a special report. In such circumstances, it should be agreed with the police, and other investigating authorities, what support and evidence they can provide to assist the investigation. Special care needs to be taken when a public inquiry is set up, and there are parallel and ongoing criminal investigations (para's 6.3 and 28 of the England and Wales and Scottish versions refer respectively). In such cases, advice should be sought from HSE's Legal Advisers Office (LAO).

Part 7: Advice prior to charge

37) Where consideration is being given to prosecution for manslaughter/culpable homicide, other serious criminal offence, or for health and safety offences, Inspectors should liaise with the CPS/COFPS at an early stage.

38) In England and Wales where police/CPS have primacy and HSE is considering prosecution for health and safety offences in relation to work-related death, consideration should be given to obtaining early legal advice. If required, LAO should be consulted and they may provide legal advice and represent HSE at meetings with the CPS.

39) In England and Wales, where primacy has been passed to HSE in accordance with para 4.2 of the WRDP, it remains essential for HSE to maintain liaison with the police/CPS. This is especially so where HSE proposes to commence legal proceedings before inquest (see Part 10 of this OC: HM Coroner and Timing of Proceedings). The handover document prepared by the police/CPS should confirm that at that stage of the investigation, there was insufficient evidence to support a CPS prosecution for manslaughter. 

Part 8: Decision to prosecute

(i)  Joint CPS/COFPS and HSE Investigations

40) The decision to prosecute any serious criminal offence (other than a health and safety offence) arising out of the death will be taken by the CPS/COPFS. The decision should, be co-ordinated between the police, HSE and CPS/COPFS, must follow the Code for Crown Prosecutors and the Prosecutors Code, and take account of the views expressed by the bereaved (OM 2003/106 refers). If the CPS decide to prosecute for a serious criminal offence, it will generally be appropriate for them to consider whether to prosecute for any related health and safety offences whether committed by the same or another defendant. Inspectors should ensure that agreement is reached with the CPS to this effect and is recorded in the KDL. Whilst the decision will be taken by the CPS, Inspectors should make clear their views and recommendations.

41) There should be no delay in reaching the prosecution decision. If there is delay, the CPS/COFPS will notify the police, HSE and other enforcement authorities and explain the reasons for the delay, and will keep them informed of the progress of the decision making.

42) For health and safety offences, in addition to the Code for Crown Prosecutors and the Prosecutors Code, the CPS/COPFS should have regard to the principles and expectations of the Enforcement Policy Statement, and the framework provided by the Enforcement Management Model. In England and Wales, in a case in which the CPS decide to prosecute for a serious criminal offence and health and safety offences, any inquest will be adjourned until after the outcome of the criminal proceedings.

43) In Scotland, consideration should be given to the requirement on the Procurator Fiscal (PF) to report to Crown Office within 2 months. If it is not possible to send a report in that time, then an interim report should be sent, or the investigation should be discussed with the PF.

44) When a prosecution decision has been made, all interested investigating and enforcing authorities should be informed as soon as possible and, if necessary, the announcement of any such decision in the media should be co-ordinated between all parties involved. The suspect and the bereaved family members should be advised of the decision before it is made available to the general public.

45) Where there is to be no CPS prosecution, the announcement of the CPS's decision should include the fact that it will be for the HSE or other enforcing authority to decide on any prosecution in relation to H&S offences. The Investigating Inspector should ensure that this is included in the CPS' communication with bereaved family members.

46) The CPS will set out its reasons in writing and send them to bereaved family members, and offer to meet them to discuss the reasons for reaching the decision. The CPS will not normally hold material that is disclosable to the HSE or other enforcing authority. However, the CPS has confirmed that it would work closely with that authority, if they so wished, to indicate how and why the CPS has concluded the decision taken.

(ii) Investigations where HSE has Primacy (England and Wales)

47) Where primacy has passed to HSE, as soon as an investigation is complete, an Investigation Report with Recommendations should be written up and submitted for approval. When preparing the Investigation Report with Recommendations, the Investigating Inspector should thoroughly consider the evidence to ensure that no new information has come to light since HSE assumed primacy which, may assist the CPS in the consideration of a prosecution of an individual or legal entity for manslaughter. This should be recorded in the relevant section of the Investigation Report with Recommendations and reference should be made to any initial appraisal made by the police and CPS [as detailed in the police / CPS handover document – see paragraph 27(b)(ii)]. 

48) On submission of the Investigation Report with Recommendations, the approval decision should not await the completion of the coroners' inquest, but should be made by the Approval Officer within 10 working days (HSE - Operational Procedure: Stage 3.3). When considering the Investigation Report with Recommendations, the Approval Officer should review the evidence to ensure that no new information has come to light which might affect the decision of the police or CPS in relation to the consideration of a prosecution of any person for manslaughter.

49) If during the completion and approval of the Investigation Report with Recommendations, the Investigating Inspector or the Approval Officer ascertain that there is information that would assist in the consideration of a prosecution of an individual or legal entity for manslaughter, the CPS must be contacted without delay. Guidance on manslaughter by Individuals and Corporate Manslaughter is provided in the Enforcement Guide - work related deaths and inquests, investigation page.

Part 9: Prosecution (mainly England and Wales only)

(i)  Joint CPS and HSE Investigations

50) If the CPS prosecute for manslaughter and a related health and safety offence, HSE does not have any formal role in the prosecution. However, Inspectors should continue to closely liaise with the CPS and such liaison may include:

• assistance in relation to the wording and nature of health and safety charges;
• further advice and assistance in relation to issues which arise during the trial;
• assisting with any issues in relation to the disclosure of material (both used and unused);
• involvement in any case conferences with counsel;
• assisting with keeping the bereaved and witnesses informed;
• involvement in the announcement of the decision;
• consultation about any decision in relation to the conduct of the prosecution, in particular, any decision to withdraw any health and safety offence, accept a guilty plea, or any basis of plea;
• providing information as to any costs application to be made on behalf of HSE in the event of a conviction.

51) Where the CPS prosecutes, and there is no HSE prosecution, HSE should be kept informed of the progress of the case and notified of the result. In HSE, the result should be recorded on COIN with the body that instigated the hearing recorded in the 'brought by' field. Manslaughter charges should be recorded as having been 'brought by' CPS with the text 'manslaughter' to be included in the Prosecution Case Summary.

52) In England and Wales, charges (under HSWA and Regs) approved within HSE, but brought by the CPS by agreement, should be recorded as having been 'brought by' CPS. In Scotland, all charges are instituted and taken by the Procurator Fiscal Service and should be recorded as having been 'brought by' PF with the text 'culpable homicide' to be included in the Prosecution Case Summary.

(ii) HSE only Prosecutions

53) On approval of a prosecution, any defendant should be informed of the decision as soon as possible (HSE - Operational Procedures: Stage 4.2). Deliberations on the timing of legal proceedings (see Part 10 below) should not delay the communication of the prosecution decision. The defendant(s) should be informed of the decision to prosecute, but be advised that the timing of legal proceedings in relation to the coroner's inquest is subject to a process of consultation with various interested parties. A template letter is provided for use by Inspectors in the Enforcement Guide.

54) If it is decided not to bring a prosecution, the suspected person and other interested parties should be informed of the decision at that time. However it should be made clear in any communication that the decision will be reviewed in the event that any further evidence comes to light at the inquest which would materially affect that decision. The Code for Crown Prosecutors allows for such a review and relevant guidance is given in paragraph 12.2 (d).

55) The police, the CPS (if applicable), the bereaved family members, and the coroner should then be informed accordingly.

Part 10: HM Coroner and Timing of Proceedings (England and Wales only)

56) Where CPS decide to prosecute for manslaughter, the police or the CPS will notify the coroner. The coroner will, adjourn the inquest until the end of the criminal prosecution, unless the Director of Public Prosecutions advises him that an adjournment is unnecessary. The Director of Public Prosecutions may also request that the coroner adjourns the inquest where there are certain other proceedings before a Magistrates' Court that are related to a death.

57) Where the CPS is prosecuting, and HSE or another enforcing authority have submitted documents or a report to the coroner, copies should be provided to the CPS. Similarly, where an enforcing authority is prosecuting, and the police or CPS have submitted documents or a report to the coroner, the enforcing authority should also be provided with copies. This is to ensure compliance with CPIA. Such documents or reports should not be disclosed to any other party without the consent of the authority that originally submitted them to the coroner. Guidance on disclosure of documents and reports by the coroner is given in the Memorandum of Understanding between the Coroner's Society of England and Wales and the Health and Safety Executive. 

Timing of Proceedings (England and Wales)

58) Changes to the WRDP agreed in May 2011, now allow HSE and other enforcement authorities greater discretion to institute proceedings prior to a coroner's inquest. In each case an assessment has to be made of the risk that bringing a health and safety prosecution before inquest could prevent a subsequent prosecution for manslaughter. In the case, R v Beedie, a manslaughter verdict was quashed, as the accused had already been convicted of a related health and safety offence. Consequently the second (manslaughter) prosecution should was stayed as an abuse of process (double jeopardy).

59) To minimise the risk that the bringing of a health and safety prosecution before  inquest could compromise a subsequent manslaughter prosecution, it is important that the decision to proceed before inquest is given thorough consideration. The initial expectation is that instituting legal proceedings before inquest will be the exception, rather than the norm. It is unlikely to be appropriate to prosecute first unless:

• Primacy has been passed to HSE at an early stage as police/HSE/ CPS (if involved) agreed that an investigation was very unlikely to reveal evidence to support a prosecution for manslaughter;
• no evidence of potential manslaughter has come to light during the investigation to justify a referral back to the police;
• there are no relevant witnesses from whom evidence/information has not been obtained but who might give evidence at an inquest;
• HSE does not intend to bring criminal proceedings against an individual under S7 as employee, or S37 as a director; 
• all those consulted support a decision to proceed before the inquest; and,
• there would be significant delay in awaiting the outcome of the inquest.

60) Rule 8 of the Coroners (Inquest) Rules 2013 now requires that a coroner must complete an inquest within six months of the date on which the coroner is made aware of the death, or as soon as reasonably practicable after that date. Therefore, awaiting the outcome of the inquest may not now lead to significant delay in all but the most complex HSE investigations. Even in complex investigations taking longer  than six months, the inquest should now be held as soon as reasonably practicable after the conclusion of HSE's investigation.

61) The risk of compromise of a subsequent manslaughter prosecution is increased where the defendant is an individual, as in the Beedie case. This should not, however, automatically rule out commencing legal proceedings before inquest in all such cases. Greater consideration should be given as to the likelihood of an inquest jury characterising the breach as being grossly negligent. Factors such as whether the death was clearly foreseeable as a consequence of the breach; how far the defendant had deviated from industry practice or established guidance; the defendants personal involvement in the circumstances of the breach should be fully considered. Early advice should be sought from LAO where required.  

62) The change to paragraph 10.3 of the WRDP allows HSE and other regulators greater discretion in the timing of legal proceedings. There are now three possible scenarios:-

1. decision is made prior to inquest, that there will be no prosecution in respect of H&S offences. Such a decision can be reviewed in the light of any further evidence coming to light at an inquest. Therefore it is important that any communication of this decision makes this clear;
2. decision is made to bring a prosecution in respect of H&S offences prior to inquest; and,
3. preliminary decision is made to bring a prosecution but to await the conclusion of the inquest. This decision will be reviewed in the light of the evidence given at the inquest.

63) During the completion of the Investigation Report with Recommendations, the Investigating Inspector should be satisfied that: appropriate liaison with the police and / or CPS has taken place; primacy has been passed to HSE; and all reasonable lines of enquiry have been followed. The Investigating Inspector should also review the evidence to ensure that, since HSE assumed primacy, no new information has come to light which may assist the CPS in the consideration of a prosecution of an individual or legal entity for manslaughter. Appropriate clarification should be made in the relevant section of the Investigation Report with Recommendations.

64) The Approval Officer when considering the Investigation Report with Recommendations, should review the investigation and be satisfied that appropriate liaison with the police and / or CPS has taken place; that primacy has been passed to HSE; and that all reasonable lines of enquiry have been followed. The Approval Officer should also review the evidence to ensure that, since HSE assumed primacy, no new information has come to light which may assist the CPS in the consideration of a prosecution of an individual or legal entity for manslaughter. Guidance on manslaughter, individual and corporate is contained in the Enforcement Guide - work related deaths and inquests, investigation page. Appropriate clarification should be made in the relevant sections of the Investigation Report with Recommendations.

No Prosecution Proposed (Provisional Decision before Inquest)

65) If prosecution is not proposed, the defendant and other interested parties should be informed of the decision as soon as possible, however it should be made very clear that the decision will be reviewed if any further evidence comes to light during the post coroner's inquest.

66) Once the relevant duty holders have been made aware of the decision, a meeting should be sought with the bereaved family members. Whilst the views of  bereaved family members should have been sought and recorded prior to submission of the Investigation Report with Recommendations to the Approval Officer, the meeting post decision should fully explain the reasons why prosecution is not proposed. Guidance is provided in Contact with relatives of people killed through work activities. Again it should be made clear that the decision will be reviewed in the event of any new evidence arising during the coroner's inquest. The views of the bereaved family members should be recorded on COIN.

67) The coroner should be informed of the decision that prosecution is not proposed (subject to a review post inquest). As the Investigating Inspector will have liaised with the coroner during the investigation, the decision should not be of significant surprise to the coroner. The views of the coroner should be recorded on COIN.

68) Guidance on disclosure to the coroner and requesting notification of any inquest is provided in paragraph 85 below.

69) Guidance on issues, which may arise during the inquest is provided in paragraphs 94-96 below. On conclusion of the inquest, the Investigating Inspector should discuss the findings and verdict of the inquest with the Approval Officer, and relevant details should be recorded on COIN. On agreement of 'no further action' by the Approval Officer, all relevant parties should be formally notified (potential defendants, the bereaved, police/CPS and the coroner) and the investigation closed.

Legal Proceedings to commence before coroner's inquest.

70) Upon approval of the prosecution, where consideration is to be given to commencing legal proceedings before inquest, the Approval Officer should make an appropriate record in the Investigation Report with Recommendations (section D5: Post Approval Action). The following parties should then be consulted by the Approval Officer (with the Investigating Inspector where appropriate), before the case is passed to a Senior Manager (Band 1) for approval of any decision to commence legal proceedings before inquest:-

1. the police and / or CPS (if CPS have been involved ie given police early investigative advice or have carried out a full evidential review);
2. the coroner;
3. the bereaved family members; and,
4. Legal Advisors Office  

71) Referral to the Senior Manager is to approve the decision to commence legal proceedings before inquest only and is NOT reviewing the actual decision to prosecute.

72) An addendum to the Investigation Report with Recommendations (Part E) is available to record the consultation process with the above parties. Where Approval Officers and Senior Managers choose a different format, they should ensure that the document fully records the consultation process as detailed in this OC.

(i) Police / CPS

73) The police and / or the CPS should be consulted on the proposal to commence legal proceedings in respect of H&S offences before inquest. If primacy has been passed to HSE from the police without the involvement of the CPS, the police should be consulted. If the CPS  have given the police early investigative advice or carried out a full evidential review, the CPS should be consulted. Reference should be made to any handover document prepared by the police / CPS, and any significant new evidence which has come to light following HSE assuming primacy for the investigation. Guidance on individual and corporate manslaughter can be found in the Enforcement Guide - work related deaths and inquests, investigation page (England and Wales). Any relevant papers from the police/CPS should be appended to Part E or equivalent record.

(ii) The Coroner

74) Whilst Inspectors will have liaised with the coroner during the investigation, the coroner must be consulted on the proposal to commence legal proceedings in respect of H&S offences before inquest. Any views the coroner may have in relation to the decision to proceed before inquest should be fully considered. It is not envisaged that legal proceedings would commence before inquest in any case where the coroner's view conflicted with that of HSE, and the coroner is not content to adjourn the inquest until after those proceedings are completed. It would also not be appropriate to commence legal proceedings for health and safety offences if an inquest could be held within a short timescale and that such a timescale would not prejudice the right to a fair trial due to delay.

75) As detailed in paragraph 53, the defendant(s) should have already been informed of the prosecution decision. However where this is not the case, agreement should be sought with the coroner that he/she will not communicate the prosecution decision to interested parties until HSE has confirmed that the defendant(s) has been notified. Inspectors may wish to confirm any such agreement in writing.

76) To form an opinion, it is anticipated that the coroner may request disclosure of relevant information. Guidance on disclosure can be found in the Enforcement Guide - work related deaths and inquests, coroner page and the MoU, however the disclosure is likely to be in the form of a factual report, together with relevant witness statements and documents.

(iii) Bereaved Family Members

77) Guidance on keeping bereaved family members and other properly interested parties (PIPs) informed during the investigation is provided in Part 3(e) and in Contact with relatives of people killed through work activities. When informing the bereaved family members of the decision to prosecute, their views should be sought in respect of the proposal to commence legal proceedings before inquest.

(iv) Legal Advice

78) Any decision to commence legal proceedings before inquest should not be approved without informed legal advice. Following consultation with the above parties, the Approval Officer should first obtain an initial view from the Senior Manager (Band 1) as to whether the case is an appropriate one to commence legal proceedings before inquest. If provisionally agreed, the case should then be referred to Legal Advisors Office (LAO). A copy of the Investigation Report with Recommendations should be submitted to LAO, however further information maybe requested.

79) LAO will then consider the case, the process is not one of independent legal oversight and LAO will not therefore review the decision to prosecute, but will advise as to whether the case is considered an appropriate one for legal proceedings to be commenced before inquest.

(v) Senior Manager (HSE – Band 1)

80) The final decision to commence legal proceedings should be made by a  Senior Manager (Band 1). The Approval Officer should complete the relevant section of Part E: Addendum to the Investigation Report with Recommendations (or equivalent record), append it to Parts A-D and submit it, together with any relevant papers to the Senior Manager. 

81) The Senior Manager should review the Investigation Report with Recommendations and submissions from the Approval Officer in relation to the decision to commence legal proceedings before inquest. The Senior Manager should be satisfied that the key issues as detailed in the NLC guidance on the timing of criminal proceedings have been addressed. A written record of the review and decision should be produced by the Senior Manager.

(vi) Commencement of Legal Proceedings

82) Once approved, legal proceedings should be commenced as soon as possible. The summons should be served on the defendant, and once served the bereaved family members and other interested parties should be informed (CPS/police, coroner).

(vii) Action post Prosecution

83) On conclusion of the prosecution, the bereaved family members, the coroner and CPS/police should be informed of the result.

84) All relevant material and evidence should be retained in line with HSE's retention policy. In particular, all relevant material and evidence in relation to the prosecution should be retained until after any coroner's inquest, or any subsequent judicial review of an inquest verdict. A coroner's inquest verdict can be subject to judicial review, and any claim for judicial review must be made at the latest within 3 months of the verdict. All relevant material and evidence should therefore be retained until at least after this period. The Approval Officer should ensure that confirmation is sought from the relevant coroner's office that they have no knowledge of the inquest verdict being subject to judicial review. An appropriate record should be made on COIN.

(viii)  Coroners Inquest post HSE prosecution

85) It is the coroner's discretion as to whether an inquest is held post prosecution. The coroner must be satisfied that the proceedings and evidence heard during the case have ascertained those matters required by section 5(1) of the Coroners and Justice Act 2009. However the investigating inspector should remind the coroner that in accordance with Rule 9(2) of the Coroners (Inquest) Rules 2013, the coroner should, if requested by an HSE inspector, notify him/her of the date, hour and place of any inquest.

86) Guidance on the disclosure of information to the coroner can be found in the enforcement guide (The Coroner and HSE) and in the MoU. The Investigating Inspector should disclose all relevant information. If not already in the coroner's possession, the coroner may request a factual report in relation to the accident.

87) Further guidance is given on coroners inquests in paragraphs 94-96, however whether summoned or not, Inspectors should attend the inquest as an interested party. The verdict of the inquest, together with any relevant information on the application of the WRDP and the MoU should be provided to the FOD Legal and Enforcement Team. The verdict and any relevant information should be recorded on COIN.

Legal Proceedings to commence Post Inquest

88) As highlighted in paragraph 64, when reviewing the Investigation Report with Recommendations, the Approval Officer should also review the evidence and assess the likelihood of an inquest jury returning an unlawful killing verdict. If there is a risk of an unlawful killing verdict being returned by an inquest jury, legal proceedings must not commence before inquest. HSE should await the conclusion of the coroner's inquest before making a final decision on whether to prosecute for health and safety offences. The decision not to proceed before inquest should be recorded in the relevant section of the Investigation Report with Recommendations by the Approval Officer and the decision should be recorded in the KDL.

89) On approval of the prosecution, the defendant and interested parties (the bereaved family members, police/CPS and the coroner) should be informed of the provisional decision to prosecute, but be advised that prosecution will not proceed until after the inquest is completed. However it should be stressed that the decision to prosecute for health and safety offences alone is a provisional one, subject to review post inquest. A template letter to inform the defendant is provided for use by Investigating Inspectors and Approval Officers in the Enforcement Guide (HSE Intranet, Letters and forms section).

90) During pre-inquest communications, coroners may seek to persuade HSE that a health and safety prosecution should proceed before the inquest. Advice on this matter is contained in the Enforcement Guide - work related deaths and inquests, chronology page. However, in such an event, the coroner should be reminded that the decision as to whether and when to commence legal proceedings in respect of H&S legislation is one for HSE.

91) Guidance on issues which may arise during the inquest is again provided in paragraphs 94-96 below. The findings and verdict of the inquest should be discussed with the Approval Officer, and relevant details should be recorded on COIN.

92) A final approval decision should be made as soon as possible after the conclusion of the inquest, and if it is decided to bring a prosecution, proceedings should be commenced as soon as possible. The summons should be served on the defendant, and once served the bereaved and other interested parties should be informed (CPS/police, coroner).

93) Where legal proceedings have not commenced until after the inquest, there may have been a significant delay which may subsequently be the subject of a challenge. It is important that those bringing the case can give a reasoned explanation for the delay. A chronology of events is helpful in setting out how the complex investigation, involving other authorities, was taken forward and will be helpful in trying to explain and justify the delay. Reference should be made to key decisions throughout the investigation, including any reasons for delay, which should have been recorded in the KDL. Investigations should be regularly reviewed by the Band 2 to comply with HSE's Operational Procedures and recorded in the Investigation Tracking review notes on COIN.

Coroners' Inquest

94) The Investigating Inspector may be summoned to give evidence at a subsequent inquest. Where legal proceedings have not been taken before inquest, or are not proposed, it is possible the Investigating Inspector will be questioned about HSE's decision on prosecution. There should be no issue in confirming the decisions taken by HSE but the Inspector should make it clear that HSE may review the decision if any new evidence arises during the inquest. If questioning goes further and relates to the reasons for HSE's decision, the Investigating Inspector should question how the decision of the HSE in relation to prosecution is relevant to the inquest (as an inquest cannot examine questions of criminal liability) and seek advice from LAO.  Similarly, legal advice should be sought on any request for disclosure of the Investigation Report with Recommendations by the coroner or any other party.

95) During the inquest, the Investigating Inspector should review the evidence heard to  ensure that it is both consistent with that collected during the investigation; and to also ensure that no further evidence has to come light which would affect the provisional decision on prosecution.

96) In the unlikely event that an unlawful killing verdict is reached by an inquest jury, legal advice should be sought immediately, and the CPS contacted without delay.

Part 11 and 12: National and local liaison

97) If the principles of the Protocol are not being followed by the police, CPS/COPFS, or other signatory organisation, HSE staff should bring the matter to the attention of their Local Liaison Officer. Regular feedback of bad (and good) practice is encouraged to help ensure effective working relationships and continued compliance with the Protocol for the future. Band 1's , who take on the role of Local Liaison Officer, attend the local meetings.  If a matter cannot be addressed at a local level, or is one with national implications, FOD Legal and Enforcement Team should be contacted, and the matter will be brought to the attention of  NLC members.

Cancellation of instructions

OC 165/9 – cancel and destroy.

Appendix 1 – Similarities and differences between English/Welsh and Scottish WRDPs

Scotland

Manslaughter and culpable homicide

A1.1. There are differences in the way that the common law offences of manslaughter (England and Wales) and culpable homicide (Scotland) have developed, and how they may be interpreted by the courts. However, these are investigated and prosecuted by others and the implications for HSE, in particular, the potential resource demands on front-line staff, apply equally.

Protocols

A1.2 There are 2 Work-Related Deaths Protocols (see paragraph 1 of OC), one for England and Wales and one for Scotland. They are very similar and, wherever possible each uses exactly the same wording as the other. The Scottish Protocol generally only departs from the text of the English/Welsh version where the Scottish legal/administrative system requires it, eg there are some differences in the text to take account of the role of the COPFS. (These are mainly in para's 11, 14, 20 and 23 of the Scottish version).

A1.3 The main differences are in Parts 9 and 10, (which deal with "The Prosecution" and "HM Coroner – Fatal Accident Inquiries" respectively), to take account of the role of the PF in Fatal Accident Inquiries, and the different prosecution system in Scotland.

A1.4 The table below summarises the similarities and differences in the 2 Protocols:

Note: "Same*" = same meaning, and mostly the same wording, with small amendment to refer to PR/COPFS