Changes to the Work-Related Deaths Protocol (the "Protocol") which came into effect on 1 October 2011 may result in more health and safety prosecutions taking place earlier. This is because the HSE will now be able to bring prosecutions before an Inquest has delivered its verdict. Previously prosecutions would, in most cases, be delayed until after the Inquest except where the CPS brought manslaughter charges.   

The Protocol, which was first introduced in 1998, is an agreement between the different public bodies responsible for investigating and prosecuting work related deaths in England and Wales.  Parties to the agreement include the HSE, the CPS and the police (through the Association of Chief Police Officers) as well as local authorities and other regulators.  The Protocol establishes a framework for these bodies to co-ordinate their activities and share information following a workplace death.  Areas of co-operation covered by the Protocol range from procedures for sharing evidence and interviewing witnesses to formulation of an appropriate media strategy.

A revised and updated third version of the Protocol came into force on 1 October.  The only substantive changes are the inclusion of new signatories (the Office of Rail Regulation, the Maritime and Coastguard Agency and the Chief Fire Officers Association) and an amendment to allow the HSE to bring criminal proceedings for offences under the Health and Safety at Work etc. Act 1974 ("health and safety offences") before an Inquest has delivered its verdict.

The Protocol distinguishes between the process for investigating and prosecuting health and safety offences (which is the responsibility of the HSE) and other relevant 'serious criminal offences' (which, in practice, means manslaughter, whether corporate or gross negligence).  Only the police have the power to investigate manslaughter and only the CPS can decide whether or not to prosecute the offence.  In addition the consent of the Director of Public Prosecutions is required before any prosecution is brought for corporate manslaughter.  The Protocol therefore envisages that where there is an indication that "a serious criminal offence (other than a health and safety offence) [i.e. manslaughter] may have caused the death", the police and HSE will conduct a joint investigation with the police taking primary responsibility.

If the police determine there is sufficient evidence to support a charge of manslaughter and the CPS decides to bring a prosecution, any charges for health and safety offences arising from the same circumstances will be determined in the same proceedings.  In these cases the HSE will co-operate with the CPS to manage the prosecution.

In cases where the CPS brings a prosecution for manslaughter, the coroner will adjourn his Inquest into the death until the conclusion of the prosecution.

If, on the other hand, it becomes apparent that there is insufficient evidence to bring a prosecution for manslaughter, primary responsibility for the investigation will be passed to the HSE.

Prior to the third version of the Protocol coming into effect, the HSE was not able to bring prosecutions for health and safety offences independently (i.e. in circumstances where the CPS was not also bringing manslaughter charges) until after the conclusion of the Inquest.  The only exception was where delay would prejudice the case.  Under the new regime this bar is removed so that the HSE can, if it considers it appropriate, prosecute for health and safety offences as soon as it has completed its investigation without waiting for the outcome of the Inquest.  There is no obligation upon the HSE to bring a prosecution before the Inquest and they are required to consult as appropriate with the police, the CPS, the coroner, the deceased's family and any other person who may have a legitimate interest.

The Work Related Deaths National Liaison Committee, which announced the changes, have said that the move will "deliver…justice more effectively and sooner in less complex cases".

HSE consults on proposals to extend cost recovery

The HSE is in the process of consulting on a significant expansion of the scope of its cost recovery programme (the consultation document can be accessed here).

The HSE proposes that where a business has materially breached health and safety law and a requirement to rectify the breach(es) is formally made in writing (e.g. by way of improvement and prohibition notices or by letter) the HSE would recover the costs of its intervention from the business.  The recoverable costs would include fees for the HSE's site inspections and for its time spent supporting and monitoring rectification of the breach(es) until the intervention has concluded.  The HSE would not recover any costs for inspections that did not uncover any breach and it is not currently proposed that they would charge for inspections that uncovered only technical breaches (i.e. breaches that do not require the HSE to make a formal intervention).

The consultation document envisages that the HSE will recover the costs of its inspectors' time charged at £133 per hour plus the costs of any specialist support they require.

Major hazard industries (e.g. offshore oil and gas) are already subject to various legislative schemes that allow the HSE to recover all or most of the cost of regulating those sectors.  The HSE also recovers its costs for work related to sites covered by the Control of Major Accident Hazards Regulations 1999 (COMAH).  These arrangements will continue alongside the new regime which will extend the same principle of cost recovery to all businesses.

The underlying principles of the new scheme have already been agreed with Government and could be implemented by as early as April 2012.  The consultation, which will close on 14 October 2011, is concerned only with the systems being proposed to implement the policy.

Changes to HSE incident reporting

As of 12 September 2011, the procedure for reporting workplace incidents and injuries to the HSE under the RIDDOR regime has changed.  It is no longer possible to submit any reports via email, post or fax.  Notifications of minor incidents and injuries can now only be made online by submitting one of seven electronic reporting forms (which can be accessed here).  Notifications of fatal and major injuries and incidents can be made via the online forms or by telephoning the HSE Incident Contact Centre.  Where a fatal or major incident or injury occurs the duty to inform the HSE "by the quickest practicable means" remains in place.  Guidance on the HSE website indicates that both online reporting and reporting by telephone will be acceptable as the quickest practicable means.

In a related development, the HSE's Infoline telephone service will close permanently from 30 September.  The HSE has explained that these moves form part of the wider drive to deliver services more efficiently across the public sector.  The HSE has stressed that all information previously available via Infoline can also be found on its website which already receives around 26 million visits per year.