Evidence submitted by the Health and Safety
Executive (HSE)
INTRODUCTION AND
EXECUTIVE SUMMARY
1. The Health and Safety Executive (HSE)
welcomes the opportunity to present evidence to the Committee.
HSE is a regulatory authority with statutory responsibility for
the investigation of breaches of duties under the Health and Safety
at Work etc Act 1974 (HSWA). This includes investigating work-related
deaths to determine if they were the result of a breach. The HSE
works closely with Coroners to help meet the expectations of society
and the bereaved following work-related fatalities. HSE previously
contributed to the Fundamental Review of Death Certification and
Coroner Services and commented on various of the Think Papers
produced by the Home Office prior to the publication of the position
paper (Cm 6159) Reforming the Coroner and Death Certification
Service. The HSE agreed with many of the conclusions reached by
the previous reviews concerning the current state of death investigation.
The HSE's comments are restricted to the proposals for England
and Wales as a separate body has responsibility for health and
safety issues in Northern Ireland.
2. The HSE supported the broad objectives
set out in the foreword from the then Home Secretary to the above
paper, namely that, as with properly managed health and safety,
an effective system for the investigation of deaths is a vital
component of a civilised society. The HSE believes that fundamental
change is necessary for the coronial system to continue to meet
the wishes of society and to function in a changing legal landscape.
The HSE therefore noted the broad commitments made in the Minister
of State's statement of 6 February 2006. The HSE is committed
to fairness during inquests. In light of the critical defects
in the current death certification procedures and the coronial
service identified by the Fundamental Review, HSE believes that
the key to addressing those defects and to an effective coronial
service lies in the adequate resourcing of any future arrangements.
As such the HSE has concerns that the recent proposals from the
Department for Constitutional Affairs (DCA) may not go far enough.
3. The HSE supports the proposal to rely
on specialist, legally qualified, Coroners to provide an accountable,
death investigation system. The HSE recognises that there will
be pressures on the resources available but does not wish to see
the obvious societal advantages of an improved coronial system
lost. The recent ministerial statement suggests that the DCA accepts
that reform will require additional funding. As with any changes
it may be easier to gain agreement to the broad principles but
it is the details which will determine the effectiveness of the
new system and whether it provides a system fit for the twenty-first
century and afterwards.
4. The HSE supports the move for reform
and wishes to see the following as components in any new system:
— Judicial Coroners responsible for
both the investigation of deaths, including work-related deaths,
and the holding of an inquest;
— Improved support for the bereaved;
— A system that applies Article 2 of
the European Convention on Human Rights (ECHR) appropriately and
differentiates other cases;
— A system that adequately marks societal
concern through the holding of an inquest, particularly in cases
involving work-related fatalities;
— A centralised and funded structure
supporting Coroners that is able to make economies of scale and
provide Coroners with adequate accommodation, administration and
investigation services;
— Consistency of approach in applying
the law and meeting the expectations of everyone involved in the
inquest process.
THE BEREAVED
5. The HSE fully supports the view that
the needs of the bereaved should be one of the key factors at
the centre of the new system. We anticipate that groups, which
speak on behalf of the bereaved in work-related deaths, will wish
to address the Committee on proposals for representation at inquests.
The anecdotal evidence of Inspectors of Health and Safety suggests
that the bereaved require improved personal support during the
inquest process. Whilst HSE supports the concept of a Charter,
HSE's Inspectors are aware that written advice is not always the
most effective way of communicating with the bereaved during the
grieving process. Any system should recognise the pressures on
those who support the bereaved and the special skills required
to adequately counsel them. That work should be supported by managing
the expectations of all those involved, through the setting of
boundaries for what an inquest can achieve.
6. Any reforms must recognise the changing
nature of society. The HSE is pleased to note that there will
be improved training for Coroners and hopes that this will ensure
an improved sensitivity and awareness of diversity issues. Any
reforms and particularly any Charter will need to consider which
categories of the bereaved will have access to the rights outlined
by the DCA, for example the interests of some members of a bereaved
family might be at odds with others within the wider family group.
Coroners will need to be equipped to exercise discretion so as
to avoid unnecessary distress including from any challenges that
might prevent or delay "closure" on the grieving process.
CORONERS' INVESTIGATIONS
INTO WORK-RELATED
DEATHS
7. The HSE believes that it is also vitally
important to recognise that the bereaved may also have expectations
of subsequent legal proceedings and that this should be recognised
not only in the arrangements put in place for inquests but also
in their application by Coroners.
8. However the HSE stresses again, as it
has throughout previous consultation exercises, the importance
of inquests to the proper investigation of work-related deaths.
The HSE's believes that the conclusions reached by the Fundamental
Review in relation to the projected increase in incidents of industrial
disease further supports the view that work related deaths are
and will be of sufficient public importance to require an independent
inquiry by a Coroner. The HSE is concerned by the DCA proposal
that Coroners should have a wide discretion not to proceed to
an inquest where there are criminal or other investigations or
other proceedings in connection with the death that appear likely
to resolve the issues that an inquest would have determined. In
light of the judgment in R (Hurst) v Coroner for North London
[2003] EWHC 1721 Admin it is difficult to conceive of any
criminal proceedings, other than those set down in section 16(1)(a)
of the Coroners Act 1988, that would properly meet this criterion,
but we are aware of incidents where Coroners, on the grounds of
cost have sought, despite the current case law, to force a HSE
prosecution to precede an inquest.
9. Whilst the Health and Safety Commission
Enforcement Policy Statement refers to death or serious injury
as an aggravating feature to any breaches of health and safety
requirements, the Commission expects health and safety enforcing
authorities to prosecute where death has occurred and there is
sufficient evidence. However HSE is not required to prove death
or the cause of death in order to secure a conviction. HSE investigations
cannot be seen as an alternative to an investigation. Any such
suggestion would have serious resource implications for HSE and
would impact on its ability to carry out its wider regulatory
responsibilities.
10. HSE strongly opposes any suggestion
of reducing the categories of work-related death, including occupational
disease and incidents at work, that currently require an inquest
to be held. We believe that if there were to be a statutory change
in this way this would risk sending a message to society that
work-related deaths are not to be given the fullest consideration.
This would inevitably jeopardise the Government's strategy for
reducing fatal accidents and those that result in serious injury
and cases of work-related ill health.
POWERS AND
RESOURCES
11. The DCA proposals and the Home Office
position paper accept that Coroners should retain responsibility
for the investigation of deaths. Coroners currently have no statutory
powers to enter premises or to seize documents. It is suggested
that new legislation will be required to give the Coroner or his/her
agents increased powers. The HSE supports these proposals. At
present there is confusion as to who carries out these functions
on behalf of the Coroner. Whilst other bodies might carry out
enquiries that touch on circumstances surrounding the death the
HSE believes that it should continue to be the responsibility
of the coroner to set the ambit of his/her investigation. Bodies
carrying out other functions might be able to assist the Coroner
but in many cases the statutory functions of those bodies, including
HSE, differ from those of the Coroner and do not provide the bodies
with the vires to act on the Coroner's behalf. The HSE believes
that it is important for the Coroner's investigation to be seen
to be independent and therefore other bodies should not be asked
to carry out the Coroner's functions.
12. Any powers provided to the Coroner or
his/her agents will need to be compatible with the ECHR. Careful
consideration should be given as to precisely what powers are
required in order for the Coroner to fulfil his/her statutory
responsibilities. There should be a specific requirement on the
Coroner to consider the rights of persons who might be the subject
of subsequent proceedings, including criminal prosecutions.
13. HSE believes that this demonstrates
a further need for a statutory definition of the purpose of the
coronial process and in particular the inquest hearing. The limitations
and guidance are currently contained in a confusing mixture of
the Coroners Act 1988, the 1984 Rules (in particular Rules 36
and 42) and case law, such as R v HM Coroner for North Humberside
& Scunthorpe (ex parte Jamieson) [1994] 3 All ER 972.
14. At present the shortage of resources
to investigate on behalf of the Coroner can lead to excessive
delays before an inquest can be held. This in turn impacts on
those legal proceedings, which, for legitimate legal reasons,
must await the outcome of the inquest. HSE policies place a heavy
responsibility on its inspectors to keep the bereaved informed
of developments. These efforts are often undermined by delays
that are beyond their control. This also impacts on the possibility
for the bereaved to have proper "closure". Delays can
also arise from a lack of administrative support (see below).
CHRONOLOGY OF
PROCEEDINGS
15. At present Section 8(1) of the Coroners
Act 1988 requires a Coroner to hold an inquest as soon as practicable
following a death, and s/he is not permitted by the Rules to adjourn
an inquest for the sole reason that criminal proceedings arising
from the death have commenced. However, the Coroner must adjourn
where proceedings for murder, manslaughter, infanticide, causing
death by dangerous driving, causing or allowing the death of a
child or vulnerable adult, or aiding, abetting, counselling or
procuring suicide are ongoing. Unlike the police and DPP, HSE
has no statutory locus to request that a Coroner to adjourn the
inquest pending the conclusion of criminal proceedings.
16. However in line with the current case
law HSE prosecutions will generally take place after the conclusion
of the inquest. Whilst HSE does not seek to use the inquest as
an opportunity to test the available evidence in advance of enforcement
proceedings it is mindful of the fact that a jury could still
return a verdict of unlawful killing, in which case the CPS may
reconsider the evidence with a view to prosecuting for gross negligence
manslaughter. As a result it is HSE policy that a final decision
on enforcement action will not normally be made until after the
inquest.
17. This approach also underpins the workings
of the Work-Related Death Protocol. The Protocol provides guidance
on the arrangements between the major investigative and prosecuting
authorities with interests in work-related deaths to ensure the
most effective methods for investigating and possible prosecuting
offences arising from the circumstances surrounding this type
of fatality. The Protocol has been developed over a number of
years and is designed to assist in ensuring that all proceedings
connected with the fatality can be effectively managed and thereby
meet the possible expectations of the bereaved. HSE investigations
and subsequent proceedings are generally directed towards the
issue of risk and may therefore not explore all the issues that
are relevant to the inquest or which the bereaved wish to know
about. Whilst it might initially appear attractive to seek a course
that might reduce both the length and the cost of an inquest,
a departure from these arrangements attracts the type of legal
risk touched on at paragraph 16 above, potentially impacting on
all signatories to the Protocol.
JURIES
18. The DCA envisages removing the mandatory
requirement for juries in work-related deaths. The presence of
juries in the most sensitive cases represents the fact that the
type of case identified in section 8 of the Coroners Act 1988
are of particular concern to society. There appears to be no strong
argument for the removal of, or reduction in the use of juries
in work-related death cases, and jurors in the Coroners' courts
face no real additional difficulties to those who sit elsewhere.
(It has been argued that inquest juries might be confused by the
different standards of proof required for different verdicts.
However juries in criminal courts are asked to deal with different
burdens of proof, such as in cases under the HSWA where there
is a reverse legal onus, and this has not given rise to problems
in practice.)
19. If it is accepted that juries are required
where Article 2 of the ECHR is an issue, and we can foresee arguments
before Coroners for the summonsing of juries in other work-related
cases. The health and safety duties are the same regardless of
whether the undertaking involves the State. On the other hand,
the calling of juries and the management arrangements required
to organise jury-inquests, may take some time, and may involve
some difficulty. This has, on occasions in the past, given rise
to some delay in arranging inquests into work-related deaths.
Undue delay is something that must be avoided, in the interests
of justice and in the interests of the bereaved. There may therefore
be good reason to remove the mandatory requirement for work-related
deaths to be before a jury. The Coroner could be given the discretion
to decide whether or not a jury should be called.
THE AMBIT
OF THE
CORONER'S
INQUIRY
20. The HSE notes the DCA's intention to
remove doubt as to the compatibility of inquest arrangements with
Article 2 of the ECHR. The HSE believes that this has already
been achieved in part through the decisions of the House of Lords
in Regina (Middleton) v West Somerset Coroner and Another [2004]
2 AC 182 and subsequent case law, although the question of
clinical decisions remains Regina (Takoushis) v North London
Coroner and Others [2005] EWCA Civ 1440. The HSE wishes to
see greater clarity in the ambit of inquests that are not required
to consider issues involving the State.
21. The HSE believes that there are clear
advantages to having defined boundaries to an inquiry. A failure
to differentiate between the requirements of an inquest required
for the purposes of Articles 2 of the ECHR would not allow resources
to be targeted at those cases of greatest public concern and result
in unnecessary delay to all cases. The use of an extended Coroners'
inquiry in every case would have implications for disclosure and
increase the risk to future legal proceedings. Extended inquiries
require significant expenditure that would have to be diverted
from other functions. In HSE's case this would be from its core
role of reducing risks and protecting people.
INQUEST OUTCOMES
22. HSE notes that many Coroners have already
adopted the use of more narrative verdicts and are not limited
only to Article 2 of the ECHR inquests. The HSE believes that
more of what were termed "considered outcomes" by the
Fundamental Review may, in some cases, better serve the needs
of the bereaved. The HSE believes that this development needs
to be defined within any reforms. The boundary between implied
incrimination and non-incriminating public comment can be hard
for Coroners to define and the public to understand. HSE is concerned
that the expectations of the bereaved for subsequent legal proceedings
are not placed in jeopardy because of the nature of an analytical
and narrative inquest outcome.
23. HSE sees strength in the suggestion
that verdicts might be a hybrid of the existing system, which
would still allow the Coroner the ability to refer matters such
as an unlawful killing to the Crown Prosecution Service. This
is particularly important if the state is to avoid situations
where new evidence might come to light in the course of the inquest
that might support a murder, manslaughter or corporate manslaughter
charge that should be referred to the Director of Public Prosecutions
as other enforcing authorities need to know when they might proceed
safely with their own charges without risk of prejudice to those
more serious charges (R - v - Beedie [1997] 2 Cr App R 167
CA).
DISCLOSURE
24. HSE anticipates that any reforms will
favour clear, consistent and predictable rules of procedure, including
those on disclosure, with a presumption in favour of disclosure
of all relevant witness material. HSE is in favour of a system
that supports greater consistency. What is relevant will depend
upon the matters being considered by the particular inquest and,
as a simple matter of administration of resources, any rules of
procedure will need to clearly differentiate between what is required
to meet the requirements of Article 2 of the ECHR and what is
needed for those inquests where those requirements are not engaged.
25. HSE continues to have significant concerns
as to how a change in procedures may impact upon matters of disclosure.
There are restrictions on the way in which information obtained
using Inspector's powers may be used and disclosed, some of which
flow from the HSWA. There are broader concerns about the need
to avoid potential prejudice to possible criminal proceedings.
HSE has worked closely with the Coroners' Society in an effort
to develop a system of disclosure that avoids these difficulties.
These arrangements are not well understood outside HSE and the
Society. The current position has the potential to reflect negatively
on HSE, and the justice system generally, and can cause frustration
on the part of all those involved.
26. In light of HSE's statutory obligations
to enforce we welcome the announcement that it is the DCA's intention
that it should be the Coroner who is responsible for investigating
the circumstances surrounding a death. We believe that this will
prevent inquests being used as an opportunity for pre-action discovery
or advance disclosure of a criminal case. A properly defined legal
definition of the purpose of an inquest will also assist in minimising
the risk of prejudice to future proceedings and will help to protect
the Article 6 of the ECHR rights of a suspect and any subsequent
criminal trial.
27. HSE would not support any proposals
with regard to disclosure that may, in any way, put future criminal
proceedings brought by HSE, or other regulators, in jeopardy.
Coroners must be properly resourced to undertake their own enquiries.
Coroners will then be able to direct their Officers to gather
evidence sufficient for the inquest, which the Coroner will then
be free to disclose as appropriate, within any proposed Rules
of Procedure.
STRUCTURE AND
INDEPENDENCE
28. The structure, independence and resourcing
of Coroners are organisational matters that are not specifically
for HSE. However, there are some aspects that would have an effect
on how HSE can properly carry out its functions and how work-related
deaths are investigated. We would therefore make the following
observations:
— Judicial post holders under the guidance
and instruction of a Chief Coroner would, we believe, be central
to a successful coronial system that meets expectations—particularly
those of bereaved families, and on the State in terms of the ECHR.
One of the most important purposes of the coronial system is the
protection and promotion of Article 2 of the ECHR rights. The
independence of the coronial system should be reflected in its
main purposes, and the service should be seen to be as objective
as possible. This should allow the Coroner to comment on flaws
in State services, if that is appropriate.
— Insofar as investigations by the
Coroner's staff are concerned, the current system involves some
decision-making and executive work. We suggest that staff undertaking
such activities report to the Coroner. This is fundamental to
enabling an independent and sufficient inquiry.
— The current system of local authority
funding has led to marked inequalities in the level of resource
(including investigative resource) that is available to Coroners,
and therefore inequalities also in the service that Coroners are
able to provide to their communities—both in terms of their
investigations and the extent of the inquiry hearing itself.
— We would welcome explicit provision
for any Chief Coroner to issue binding Practice Directions. At
present, despite the laudable efforts of the Honorary Secretary
of the Coroner's Society there is nothing to require a Coroner
to adopt the sensible practices advocated at a national level
by the Society.
— HSE is of the view that the cost
of any proposals needs to be evaluated against the service that
it will provide to society. It is disappointing to note that the
proposals indicate that the investigation of deaths will continue
to be funded at a local level. The Fundamental Review referred
to the need to rationalise the current arrangements. We believe
that there is the potential to make savings through economies
of scale that are not available at local authority level, thereby
ensuring that all possible resources are made available for the
performance of the Coroner's statutory duties. In the absence
of consistent funding within Central Government control we cannot
see how the public can expect a consistent level of service.
— In terms of accommodation HSE believes
that delays in the inquest process could be prevented if coroners
had easy access to courtrooms (possibly managed by HM Courts Service).
Whilst it is not essential for Coroner's offices and courtrooms
to be co-located, this might be preferable in eliminating unnecessary
travel and administrative costs.
— As the interests of the bereaved
must be at the centre of any new service careful consideration
must be given as to the location of inquest centres so that inquests
are accessible to all both in terms of public transport, and in
terms of facilities. The current ad hoc arrangements often do
not meet the needs of the bereaved. Accommodation is often uncomfortable
lacking basic services such as refreshments and quiet rooms. This
adds to the distress of grieving relatives.
Health and Safety Executive
Enforcement Policy Unit
February 2006
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