The third version of the Work Related Deaths Protocol came into effect on 1 October, and it could see firms responsible for a fatality on their site prosecuted a lot quicker

The Work Related Deaths Protocol was first introduced in 1998 following the 1997 case of R vs Beedie. In this case a tenant of a property died of carbon monoxide poisoning caused by the use of a defective gas fire. The landlord was prosecuted under the Health and Safety at Work etc Act 1974 arising out of a breach by the landlord to ensure that the appliance was properly maintained and repaired (the landlord was fined £1,500). The landlord also pleaded guilty to other offences that related to other defective gas installations at the property for which he received a conditional discharge. A year later he was charged with manslaughter.

The landlord successfully argued in the Court of Appeal that the subsequent manslaughter prosecution was an abuse of process (a breach of the so-called “double jeopardy” rule). This was because the manslaughter prosecution was based on the same facts as the previous health and safety prosecution. The court will only allow a subsequent prosecution where there are special circumstances. The public interest in bringing a manslaughter charge or the wishes of the bereaved family did not constitute special circumstances.

The change to the protocol will reduce the number of firms being closed down and restarted to avoid prosecution

The Beedie case prompted the introduction of the Work Related Deaths Protocol whose initial signatories included the Crown Prosecution Service, the Health and Safety Executive, the British Transport Police, the Local Government Association and the Association of Chief Police Officers.

The protocol is now on its third version, in effect from 1 October. Its aim is to “emphasise the importance of working together to investigate thoroughly and to prosecute appropriately those responsible for work-related deaths in England and Wales”.

As its name suggests, the protocol applies to fatalities resulting from an incident arising out of or in connection with work or where a victim suffers such serious injuries that there is a clear indication according to medical opinion of a strong likelihood of death. The relevant signatories must consult with each other before any decisions are made jointly as to what charges (if any) to bring. The signatories, where necessary, will also need to co-ordinate the timings of any such prosecutions to try to avoid being caught by the double jeopardy rule.

The main change to the third incarnation of the protocol (apart from adding three new signatories in the form of the Office of Rail Regulation, the Maritime and Coastguard Agency and the Chief Fire Officers Association) relates to timing. From 1 October 2011, where the relevant enforcing authority has completed an investigation into a work-related death, it must consider whether to bring charges at that stage or whether to wait until the result of a coroner’s inquest before making that decision. As part of the decision making process it must consult the police, Crown Prosecution Service, coroner and the deceased’s family together with anyone else who has a legitimate interest. So from 1 October health and safety prosecutions can be brought before an inquest into the cause of death. Historically, any decisions as to whether to prosecute for health and safety breaches had to wait until after an inquest. This was, on the one hand, useful as the prosecuting authorities could wait until after an inquest to consider the strength of the evidence they had but, on the other hand, the cause of significant delays especially as the inquest itself could take years to run its course.

The relevance of this is twofold: firstly, bereaved family members should see swifter justice being implemented rather than having to wait sometimes years for decisions on prosecutions to be made; secondly, it will reduce the number of firms (especially those in the construction industry) being closed down and restarted under a different name in an attempt to avoid prosecution. Previously there was enough time for unscrupulous business owners to do this, often using the same bad practices and equipment that caused the death in the first place. A welcome change given that, according to Ucatt, 70% of fatalities are caused or contributed to by management failings and that last year there were some 50 fatalities on construction sites (a 22% increase on the previous year’s figures).

Joe Griffiths is partner in Edwin Coe