John Blackburn

1
HSE and the Investigation of Death in Scotland

• John Blackburn
• HSE Principal Inspector

2
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

3
Role of HSE/LA contd.

• Liaison with the police
• HSE and culpable homicide
• Contacting the bereaved
• Reporting to the fiscal
• Penalties

4
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

5
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

6
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

7
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

8
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

9
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

10
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

11
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

12
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

13
Penalties

• Summary cases
• Regulations 5,000
• HASWA 20,000
• 6 months some offences
• Solemn procedure
• Unlimited fine
• 2 years some offences

14

• Najma Rasul, CCA Caseworker
• Differences between England and Scotland in the
  investigation and Prosecution of work-related
  safety issues

15
INTRODUCTION

• CCA 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

16
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?

17
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

18
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

19
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 HS prosecution
• - Level of Inquiry
•  Scotland Much wider