CCA Conference, Glasgow, 2003 John Blackburn HSE Principal Inspector HSE and the Investigation of Death in Scotland

CCA Conference, Glasgow, 2003

John Blackburn

HSE Principal Inspector

HSE and the Investigation of Death in Scotland


Role of HSE and LAs

• Role of HASWA enforcing authorities

• Organisation in Scotland

• Enforcement of health and safety law

• Policy on work related deaths

• Individuals

• The investigation


Role of HSE/LA contd.

• Liaison with the police

• HSE and culpable homicide

• Contacting the bereaved

• Reporting to the fiscal

• Penalties


Enforcing HASWA

• HASWA – Health and Safety at Work Act 1974• Enforcement divided between local authorities and

HSE• HSE – FOD, HID (Land Division and Offshore

Division),RI, NSD• Inspectors have powers to inspect/investigate

health and safety offences


Enforcement

• Purpose of enforcement is to ensure risk properly controlled and when appropriate to punish offenders

• Inspectors can give advice

• Serve Improvement Notices

• Serve Prohibition Notices

• Report offences to Procurator Fiscal


Policy

• HSC have published enforcement policy – available on web site www.hse.gov.uk

• HSC policy that all work related deaths be investigated (unless exceptional circumstances)

• HSC policy that prosecution presumed where death was result of breach

• HSC policy to contact the bereaved• In Scotland final decision on prosecution with Fiscal• Fiscal cannot direct HSE but policy to assist and

cooperate


Prosecution of individuals

• Individuals can be prosecuted as self employed, managers or employees

• Section 7 – employee fails to take reasonable care for health and safety

• Section 36 – offence through act or default• Section 37 - director or senior officer

offence through their consent or connivance or attributable to their neglect


Investigation

• HSE incident investigation selection criteria• All work related deaths to be investigated• Investigation usually starts within 24 hours, is

coordinated with the police• Size of investigation proportionate – can call on

forensic resources as needed• Report to Fiscal with recommendations and

evidence to support any prosecution of HASWA offences


HSE/Police

• There is no formal protocol in Scotland for liaising with police at work related deaths

• Liaison is on case by case basis• Investigation coordinated, but report separately to

the Fiscal• Both will interview witnesses.• Police tend to focus on event/ HSE on

management system and technical issues as well as immediate circumstances


Culpable homicide

• HSE inspectors not empowered to investigate culpable homicide

• Inspectors are guided to be alert to possibility• Inspectors should then raise their concern with the

police/fiscal to take over the investigation• HSE could then help with technical aspects if

requested


Contacting the bereaved

• HSC policy that we contact bereaved for all work related deaths

• Coordinated with police and fiscal

• We will offer to meet family to explain our role and how investigation will proceed

• But cannot give information that may prejudice any prosecution


Reporting to the Fiscal

• If recommending proceedings will submit a prosecution report with all evidence and inspectors reports including legal discussion

• Report becomes property of Fiscal and is not disclosable

• If not recommending prosecution will send report to Fiscal outlining the circumstances and saying why we do not consider prosecution appropriate

• We normally report within 4 months depending on complexity of investigation


Penalties

Summary cases:Regulations £5,000HASWA £20,0006 months some offencesSolemn procedure:Unlimited fine2 years some offences


Najma Rasul, CCA Caseworker

Differences between England and Scotland in the investigation and Prosecution of

work-related safety issues


INTRODUCTIONCCA CASEWORK

• Joseph Rowntrees Charitable Trust

• Free, independent, confidential

• Advice and assistance on investigation and prosecution issues arising out of death

• England, Wales - but also Scotland

TALK

• Differences between England/Wales and Scotland

• Possible Advantages/Disadvantages of difference


Health and Safety Executive

• Similarities: Preventative inspections, investigation, enforcement of notices.

• Differences:

– England - HSE involved in Prosecution

– Scotland - Role of Procurator Fiscal and Crown Office

• Implications:

– Possible advantages:

• Focus on Inspection/Investigation

• Independent scrutiny of prosecution decision

HOWEVER

– Crown Office lower prosecution rates?


ROLE OF POLICE• Similarities

– Criminal investigation

• Differences

– England Manslaughter

– Scotland Homicide

– Scotland No Protocol of Liaison on Work-related Deaths

• Protocol of Liaison

– Requires investigation of all work-related deaths as potential manslaughter

• Impact of Lack of Protocol


Role of Procurator Fiscal

• Similarities to Crown Prosecution Service

– Responsible for prosecutions

• Differences

– Overall control of investigation

– Responsibility (with Crown Office) for making Prosecution Decisions;

– Policy of not providing reasons for decisions not to prosecute;

– Decision on whether Fatal Accident Inquiry


FAI v Inquests

• Similarities- Evidence in Public- interested parties can ask questions

• Differences– Extent of Mandatory Inquiry

• Eng/Wales All reportable deaths• Scotland - not deaths of members of public

- Not mandatory is H&S prosecution

- Level of Inquiry• Scotland Much wider

Documents

CCA Conference, Glasgow, 2003 John Blackburn HSE Principal Inspector HSE and the Investigation of Death in Scotland