Investigating work deaths: getting it right
Work-related deaths: a protocol for liaison
Liaison between ACPO, BTP, CPS, HSE and LGA
TUC comments on the latest draft (May 2002)
In 1998 the Association of Chief Police Officers (ACPO), Health and Safety Commission (HSC) and Crown Prosecution Service (CPS) collaborated to develop a protocol which outlined an agreed procedure for liaison between them where there is a work-related death in England and Wales. They formed a National Liaison Committee (NLC) to oversee the operation of the protocol (and Regional Liaison Committees exist to foster local co-operation). The NLC are now reviewing the operation of the protocol, and this is the TUC’s second submission [1] , in response to a redraft of the first version, based on the views of union legal officers and union health and safety specialists. We have in particular been assisted by those unions involved in major accidents such as ASLEF, FBU, as well as by NUMAST (which has experience of how incidents are investigated in the marine sector, the TGWU and also the union representing local authority inspectors, UNISON.
I. General comments
Other jurisdictions
We particularly welcome the involvement of the British Transport Police (BTP) - liaison with the BTP in the past has been poor although the TUC noted that relations were improving in our first submission. The involvement of the Local Government Association (LGA) is similarly welcome, although it raises very sharply the need for guidance and training which is dealt with in the next section, because the LGA is in no position to order the actions of local authority inspectors.
The NLC indicates that the Maritime and Coastguard Agency (MCA) and the Civil Aviation Authority (CAA) will be asked to confirm whether they will abide by the same principles. It should be noted, of course, that the MCA is responsible for enforcement offshore, but it is not the only investigating body - that is the Marine Accident Investigation Board (MAIB), and that and the creation of the Rail Accident Investigation Branch (RAIB) will obviously have implications for the future development of the protocol - in particular, the impact that joint investigations might have on the independence of the MAIB and projected RAIB and vice versa. These are issues that might be flagged up in the proposed introduction and annex.
Guidance and training
We understand the points which the NLC makes about not including details of the relevant legislation in the protocol. However, we would welcome details in the introduction or annex of the training and guidance which will be offered by parties to the protocol to the staff who come under them. The law relating to manslaughter at work, and health and safety itself, are complex, and there is a lot more that people involved need to know than the liaison arrangements which are the content of the protocol.
Safety representatives
The TUC would also like to draw attention to the role of workers and their representatives in the sort of issues that the protocol covers. Safety reps play a major role in investigations in the workplace (indeed they are legally entitled to carry out such investigations) and perform the role of an independent voice internal to the workplace. The new enforcement policy of the HSC makes oblique reference to their role in decisions about enforcement where it deals with the need to take prior warnings into account - these warnings may well be found in safety reps’ reports (including the Union Inspection Notices being piloted by the TUC) and the minutes of joint union-management safety committees.
Families
The other key group of stakeholders in such events will be the bereaved family, and a great deal of concern has been expressed about their role, or often the lack of it. The NLC covering letter to the latest draft protocol says that 'bereaved families and witnesses will be kept suitably informed', and there is a reference in the protocol to agreeing a joint strategy to this effect. However, there is a need to specify other roles for the families (which are dealt with section by section) and an overall need to take into account the consistency between the protocol and the forthcoming revision of the Victim’s Charter which will cover the victims of all crimes being prosecuted by the CPS (although the TUC would prefer it to cover all criminal prosecutions).
II. Specific comments on the protocol
Initial action (question 1)
The TUC believes that all work-related deaths should be treated as manslaughter unless the evidence suggests otherwise. The initial action taken will be crucial to any investigation and/or prosecution. We therefore believe that where practicable, the first police officer on the scene should be of supervisory rank. Where someone of this rank is not available to attend, another police officer should take charge until an officer of supervisory rank is able to attend. Paragraph 2.2 should therefore be amended to read 'a police officer of supervisory rank should attend the scene and any other relevant place to assess the situation as soon as practicable….' (our emphasis).
It is also somewhat surprising that only the police are mentioned in the initial action. The TUC believes that there should also be a reference to what the HSE and other parties should do - in particular the TUC believes that HSE Principal Inspectors should take charge of the HSE side of any investigation into a work-related death.
The initial action should also include the arrangements to notify the next of kin, rather than leaving this until the strategy for involving the family is determined (covered in section 3 of the protocol).
Finally, more emphasis should be placed on the police preserving areas, documents and equipment that may not be at the scene of the crime. Para 2.1.i should read 'identify, secure, preserve and take control of the scene, and any other relevant place where for example important equipment and/or documentation is held.'
Management of the investigation (question 2)
We believe that all work death investigations should be jointly managed, and this should be more firmly emphasised. Paragraph 3.1 should read 'Investigations should always be jointly managed from the outset by the police.' and then at the end, it should read 'If at a later stage a joint investigation is not appropriate…' rather than 'Even where…' It might also be useful to give some examples of when a joint investigation would not be appropriate.
Paragraph 3.3 should specifically state that there should be an agreed approach to instructing experts - the third bullet in particular (about the forensic examination of exhibits) is not sufficient, because it is often not the facts, but the interpretation of the facts which is important.
As well as keeping families informed throughout, the protocol should cover the issue of keeping the relevant workforce informed, for example through safety reps. This will also help safety reps to decide what investigation they themselves should conduct.
Decision making (question 3)
Paragraph 4.1 introduces an unhelpful ambiguity by referring to an investigation which 'gives rise to a suspicion' that manslaughter has occurred. The TUC believes that people will vary in their judgments, and paragraph 1 of the protocol has already acknowledged that 'it is not always possible to make an early determination of whether an offence of manslaughter has been committed'. We would prefer to see this paragraph make it absolutely clear that all cases of work related death should be treated as manslaughter to start with, not least so that crucial evidence is not lost. It should start: 'From the outset the investigation should be carried out on the basis that an offence of manslaughter has been committed and so the police will assume primacy …'
Although we believe that the police should take primacy in work death investigations, the TUC prefers the approach of the HSE, who start from the premise that most such incidents are due to the actions or inaction of management. We would prefer to see investigations start by considering the organisational deficiencies which might have caused the death. Thus, we propose that Paragraph 4.1 should conclude with the following new sentence: 'The investigation should cover to what extent there have been any organisational failures that have led to the work-related death to ensure appropriate advice is sought as to whom should be charged and what specific charge should be brought.'
Paragraph 4.4 should also include the possibility of a judicial review as well as an inquest (there ought to be an equivalent to para 10.3, as well), and indeed there might well be a public enquiry which produces evidence (either as it goes along, or in the final report) which could give rise to the reopening of a manslaughter enquiry.
Disclosure of material (question 4)
We believe that the established laws and procedure of disclosure needs to be explained, either in brief or in the protocol (for openness at least) or in the guidance and training which we have proposed.
Special inquiries (question 5)
It should be made clear that the parties should work with the chairs of the public inquiry to advise them of the progress of the criminal investigation and to advise whether there is likely to be any prejudice to a prosecution if the inquiry was to proceed.
Pre-charge advice (question 6)
The role of the CPS is not at all clear from the text of section 7 - most of which seems to be about what the police are required to do rather than the CPS.
We would like to see the phrase '(including the instruction of experts).' added to the end of paragraph 7.1, in terms of what the CPS should be asked to advise on.
The decision to prosecute (question 7)
The Crown Prosecutor needs also to discuss the evidence with the instructed experts - those taking the decision about whether to prosecute must fully understand the mechanics of the incident and the health and safety obligations of those involved.
We believe that before a final decision is taken whether to prosecute, the victims’ family and workforce representative should be asked for their view. And if the decision is not to prosecute, they should be given the right to make representations to the prosecutor before the decision is confirmed and communicated more widely.
At the very least, as well as informing the victims, representatives of the victims’ work colleagues (eg safety reps) should also be informed of decisions whether to prosecute.
The prosecution (question 8)
We understand that one of the matters which often holds up a prosecution in relation to a work-related death is the serving of a case summary by the prosecution setting out the case against the defendant(s). Since this is always likely to be required, it should be factored in at an early stage and a procedure laid down for how and when it is to be prepared.
The coroner (question 9)
Where inquests have been adjourned or refused, coroners or others should give adequate written reasons for this, not least to the victim’s family.
Final remarks (question 11)
Paragraph 8.3 is not particularly clear when read together with 8.6 and 10.3 - we would therefore suggest that at the end of para 8.3 an addition should be made to read 'shall be taken without undue delay after the inquest unless para 10.3 (below) applies.'
In paragraph 12.2 there is a reference to three organisations, although the intention is for five to sign the protocol - perhaps this could be changed to 'between all the organisations involved.'
[1] The first is on the TUC website at www.tuc.org.uk/h_and_s/tuc-4565-f0.cfm
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