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.

The role of HSE

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 unlawful killing, or any other criminal offences outside its health and safety remit.

The role of the police

3. The police are responsible for:
   • investigating crime in general; and
   • referring cases to the CPS for review.

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.

The role of the CPS

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 they will only do so when there is also a prosecution for manslaughter or other serious criminal offences arising as a result of a work-related death.

Manslaughter

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 2007 (‘CMCHA 2007’)³, 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.

Work-related deaths protocol

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 from 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’ Convention’⁸, 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:
    • an early decision by the police to investigate manslaughter, or any other serious offence;
    • an agreement to share resources and expertise to assist both investigations;
    • co-ordinated and timely decisions over prosecutions for manslaughter and health and safety offences;
    • consideration of joint proceedings when both HSE and the CPS decide to prosecute; and
    • that the relatives of those killed in accidents at work are kept informed of progress with the investigation(s) and any legal proceedings.
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.

Liaison with other enforcing agencies

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.
19. You should also refer to the section on Collecting physical evidence - Liaison with other authorities.

Retention and disclosure of material obtained during the course of an investigation

20. Where there is a police investigation, material obtained during the course of the investigation should be shared, subject to any statutory restriction placed on HSE. 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.

HSE - public inquiry

22. You should bear in mind the possibility that in serious incidents, particularly those involving multiple fatalities, the HSE may, with the consent of the Secretary of State, direct that a public inquiry be held. Alternatively, the HSE may conduct a formal investigation.

Liaison with the coroner

23. Where HSE has received notification of a fatality, you should inform the relevant coroner’s office as to 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.
24. The coroner may wish to visit the scene of the accident. Where you are aware of this, you should consider whether you should accompany the coroner on this visit.
25. Where HSE is involved in the investigation of a work-related death, you should remind the coroner that HSE should be informed when the inquest is to be held. Rules 19(b)(ii) and 20(2)(f) of the Coroners Rules 1984 require the coroner, if requested by an HSE inspector, to notify the inspector of the date, hour and place of the inquest.
26. Further information regarding the role of the coroner and HSE’s involvement in the inquest is covered later in this section. However, you may wish to ensure early contact with the coroner and regular contact thereafter, usually via the coroner’s officer.

Liaison with the bereaved

27. When inspectors from any division of HSE are called upon to investigate a fatal accident, it is HSE policy that early contact with the bereaved family is made in every case, in order to:
    • make arrangements to meet the bereaved as soon as the bereaved wish¹⁰;
    • explain HSE's role and responsibilities and those of others likely to be involved;
    • advise the family about the possible length of time an investigation may take, to ensure the family are not given unrealistic expectations of the investigation;
    • ask the family if they have any information that may be relevant to the investigation; and
    • provide copies of the advice leaflets prepared by HSE for bereaved families¹¹.

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. 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.
31. 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.
32. Further guidance on contact with bereaved families can be found in Operational Minute 2008/07.

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Footnotes

1. Section 24 Police and Criminal Evidence Act 1984 (as amended). The power of arrest without warrant can only be exercised on the grounds, and for the reasons, set out in s.24.
2. R v Adomako [1995] 1 A.C. 171; R v Misra and Srivastava [2005] 1 Cr App R 21. A police investigation into whether an individual has committed the offence of ‘unlawful act’ manslaughter is also possible, although much less likely in cases involving HSE.
3. The CMCHA 2007 came into force on 6 April 2008.
4. Section 1(1) CMCHA 2007.
5. Section 8 CMCHA 2007.
6. Section 19 CMCHA 2007.
7. Work-related Deaths – A Protocol for Liaison . A similar protocol applies to the investigation of work-related deaths in Scotland.
8. HSE is a signatory to The Prosecutors’ Convention.
9. See the Investigation operational procedure, step 3.2.
10. If this offer is declined, or the logistical difficulties of visiting the next of kin are significant, inspectors should ensure that a letter is sent with a copy of the information pack ‘Advice and Information for Bereaved Families’. An offer should be made to keep the family informed of progress with the investigation by telephone. See OM 2008/07 for further information.
11. The information pack ‘Advice and Information for Bereaved Families’ should be provided – see above.