The Health and Safety Executive (HSE) has recently confirmed, in response to a Freedom of Information Act request, that ongoing investigations and prosecutions following work-related fatalities may take several years to reach a conclusion. This is the reality that unfortunately many victims’ families have become all too familiar with over the last few years.
The information request was prompted by the HSE’s announcement on 24 July 2018 of its decision to prosecute two companies involved in the Pembroke Refinery explosion on 2 June 2011, when four workers were killed and another seriously injured. The first hearing before Haverfordwest Magistrates Court will take place on 24 September 2018 over seven years after the incident.
Lengthy investigations followed the Falcon crane hire collapse in Battersea in September 2006 where it took until March 2016 before the prosecution was concluded, and a structural collapse at Claxton Engineering in Great Yarmouth in January 2011 where the company and a director were ultimately sentenced in May 2017. Whilst historically such cases might have been an exception, lengthy investigations by a regulator are becoming increasingly common, even in non-fatal cases.
Justice delayed is justice denied
In the last two years there have been two particularly high profile and catastrophic incidents, the collapse of Didcot A Power Station in February 2016 and the fire at Grenfell Tower in June 2017. These incidents have of course resulted in large scale and complex investigations led by the Police with the support of the HSE and other agencies. In January this year it was reported at a pre-inquest review hearing into the four fatalities at Didcot, that Thames Valley Police had interviewed 1,921 witnesses with investigations still ongoing. A similar investigation by the Police and other authorities is running parallel to the public inquiry into the fire at Grenfell Tower. The role of the Police, which takes primacy, is to investigate whether any serious criminal offences are disclosed i.e. manslaughter, whilst other regulators deal with their own areas of jurisdiction, usually once the Police have concluded their investigations. In these cases it will inevitably be some considerable time before any prosecution decisions are determined.
The same is true for any individuals who find themselves subject to an investigation by the Police or enforcing authorities into their personal conduct. Following the introduction of the Policing and Crime Act in April last year, and the introduction of time limits for bail, the Police have attempted to circumvent the new requirements by releasing suspects ‘under investigation’ rather than on bail. The absence of bail return dates potentially allows investigations to hang in abeyance without any recourse.
Lengthy work-related investigations before legal proceedings commence create predictable difficulties. Inevitably during this time there are changes within a workforce, documents may be destroyed, systems updated and witness memory issues can arise due to the passage of time.
The period between incident and court has also been the focus of debate in the House of Commons. Evidence submitted confirmed that a typical investigation and prosecution following a fatality took between nearly three and four years to conclude. Such parliamentary debates are likely to continue in view of the recent cuts in funding and resources of government agencies. The number of serving police officers is currently just under 122,000, the lowest figure recorded since comparable records began 22 years ago, and the HSE’s funding for 2019/2020 has been reduced by 46% compared with its budget allocation ten years ago.
Can these delays be reduced?
Whilst the Work-Related Death Protocol was introduced by the Police, CPS and HSE as long ago as 1998 to govern multi-agency investigations and to expedite the investigation process (as well as eliminating unnecessary duplication), delays still arise and in many cases are increasing.
Despite the HSE’s initial involvement in supporting a Police investigation, when a case is handed over the investigation often starts afresh in order to consider different types of offences. Any HSE prosecution is typically concerned with an interpretation of the foreseeability of risk and whether the control measures engaged were reasonably practicable in the circumstances, a concept that is subject to interpretation and often requires detailed technical insight.
In HSE prosecutions delays often continue as the case proceeds through the criminal courts; where it is often the first opportunity for the defence team to review the evidence the HSE has collated and more importantly understand how they are interpreting it. Disputes can arise when the parties review and seek to agree the facts of an incident and the application of the sentencing guidelines. This may require additional expert evidence, witness enquiries or forensic financial advice.
Investigations are also linked to Coronial proceedings, which may be stayed if a criminal trial is scheduled or, in the event of an HSE investigation, the inquest in most cases proceeds whilst a prosecution decision is being considered. This sequential approach can also affect the progress of an investigation.
Improving the pace of investigations
The HSE in its 2015 to 2020 strategic priorities business plan aims to complete investigations within twelve months. In the Executive’s 2018/2019 plan, this target is applied to 80% of fatal incidents and 90% of non-fatal incidents. These improvements will be based on improving partnerships and collaborative investigations with other regulators and updating internal investigation procedures to ensure effective case management.
Would the introduction of a time limit in which to commence a prosecution be a welcome addition? In food cases, for example, the authorities have three years from the commission of the offence or one year from its discovery (whichever is shorter) to commence a prosecution. Whilst in principle a fixed time limit is an attractive notion, in view of the complexity of Police and HSE cases an investigation conducted in haste is likely to give rise to many more issues; through lack of sufficient enquiries (interviews, technical assistance), insufficient time to collate and disclose documentation to assist in satisfying evidential thresholds and inadequate preparations for Court hearings. The absence of a statutory time limit for the Police and the HSE at least enables the opportunity to complete thorough investigations; which must ultimately be fair to victims’ families and potential defendants.
Elsewhere, for example, both France and Germany engage an investigating judge in complex cases to review criminal investigations and in some cases conduct them, in order to determine whether there is sufficient evidence to commence a prosecution. It is arguable that if we adopted a similar approach in the UK it could actually lead to more delays by the introduction of an additional tier in the review process, particularly as many courts are having to operate with reduced staff and fewer courts sitting.
In the last few years developments within the partnership between the Police and HSE have enhanced the efficiency of investigations through the sharing of information, joint interviews and site visits and review meetings with the CPS. Continuing with this collaborative approach and implementing structural and case management strategies should continue to improve the timely completion of investigations, if slowly. Nevertheless, the incidents at Didcot and Grenfell Tower are unlikely to reach any final conclusion for some time yet.