Corporate killing: lines of inquiry

Mark Tyler | Feature | HSW
06.03.2008

In the two previous articles in this series (see A look at the new Corporate Manslaughter Act and Corporate killing: lines of defence) we examined what exactly the new offence of corporate manslaughter consists of and the issues organisations need to focus on to reduce the risk of being charged with the new offence in the event of a fatality.

But if you have to deal with a work-related death, there is a whole other area of planning that needs your attention: coping with the authorities' investigation.

The police and the HSE already have procedures for handling work fatality investigations where they suspect manslaughter. These are available in Work-related Deaths: A Protocol for Liaison and Investigators' Guide.

But from April, the new Act will add an extra dimension to investigations and unprecedented levels of scrutiny into the safety management systems of companies and other organisations under investigation.

The role of the employer or others under investigation is essentially a reactive one but, even so, organisations should have their own plans and procedures in place to deal with what can be a long, complex and draining process.

Defence team

The starting point for planning is to decide, well in advance of any crisis, exactly who will control the organisation's response to an investigation. This is not as straightforward as it might seem.

In large organisations, a major accident can create tensions between the health and safety team, business managers, insurance managers and the legal department. Their expectations may not be consistent, and each may believe their own objectives should prevail. Mini power-struggles are not uncommon.

As with other forms of crisis management, a multi-disciplinary team is the solution, ideally led by a director or someone with similar authority. There should be no silos. This group (let's call it a defence team for convenience) should be equipped to make critical decisions quickly and confidentially.

You should identify external advisers, such as counsellors for distressed witnesses and legal and public relations experts, in advance and collate their contact details. Don't overlook family liaison for relatives of the victim.

What issues should such a defence team anticipate having to deal with? You need to work carefully through the kinds of accident scenarios employees or others could face, but there are issues general to virtually all investigations involving deaths (or very serious injuries).

First response

Your planning for the immediate aftermath of a fatal accident must include:

• adequacy of emergency plans for the purposes of Regulation 8 of the Management of Health and Safety at Work Regulations (including risk assessments for any possible rescue operations)
  
• timely reporting and police notification procedures
  
• security and preservation of evidence from the accident location.

Capturing basic information straight after an accident can be crucial, including simple things such as a list of eye-witnesses and others working in the vicinity; weather or lighting conditions if these could be relevant; and photographs of the scene from different angles.

The police will declare the area a "crime scene" and usually deny immediate access, but it is generally still possible to gather this information without interfering with their work.

Just the facts

Though a corporate manslaughter investigation will focus on management failures and the underlying cause of a fatality, it is vital to get an early understanding of the immediate circumstances of the accident.

Asking witnesses to describe what has happened soon after a fatal accident is obviously distressing, but most people tend to readily relate what they have observed, if asked.

Without going into detailed questions, it is advisable to ask eyewitnesses, the victim's colleagues, supervisors and line managers to describe the basic facts of what happened before they leave the scene and to take notes.

Memories can fade quickly or be affected by discussions with other witnesses and these early "raw" recollections can greatly help later accident investigations.

HSE officials or other inspectors with expert knowledge will steer the police quickly to key documents. Ultimately, the police can use their statutory powers of search and seizure, but they may need a search warrant for the organisation's premises.

In contrast, inspectors have immediate rights of entry and can demand documents and other evidence. Typical items which need to be always readily accessible (so the process can be kept informal and the organisation can keep some degree of control) are:

• risk assessments
  
• safe systems of work
  
• equipment maintenance records or safety data sheets.

It's extremely important to keep a log of whatever documents you hand over to the police or inspectors for reference later and for planning interviews or representations.

Face to face

Police and HSE enquiries will involve a lengthy series of interviews. From the organisation's perspective this gives rise to difficulties which need careful management.

Interviewees often need reassurance by having someone accompany them. But their rights can vary depending on the legal basis on which the interview is conducted.

There is considerable scope in any manslaughter investigation focused on "the way activities are managed or organised" for conflicts of interest to arise - between the organisation and its staff, and between individuals at different levels.

Directors or employers are likely to be questioned on their personal responsibilities, and might be asked to comment on or even implicate others.
Interviewees are commonly asked to produce extra documents or items.

Often this presents no difficulties, but most employees lack the authority to hand over an organisation's documents or property voluntarily. There is also the risk of material that is subject to legal privilege (and so confidential to the organisation) being wrongly disclosed to the police or inspectors if nobody checks files before they are handed over.

Police officers and inspectors will generally resist your requests for copies of interview notes and statements. If interviewees and their advisers don't object, it's a good idea to conduct a debriefing, so the defence team can understand the direction of the investigation.

Legal advisers on the defence team will need to clarify the legal basis on which any interviews are conducted and set out the options for representation. Police and inspectors may try to persuade witnesses to agree to what they call "voluntary interviews".

One unfortunate effect of these is they bypass rules against self-incrimination contained in the Health and Safety at Work Act (HSW Act) and may exclude anyone else from being present.

For eyewitnesses or those remote from the accident, this is not a concern. But unless an individual is not worried by being obliged to give answers and cooperate fully, it's better for them to insist on being interviewed under the powers contained in Section 20 of the HSW Act to avoid the risk of self-incrimination, however small it might appear this early  in an HSE investigation. It also guarantees that the interviewee can be accompanied by a person of their choice.

If the police or HSE have concluded there are grounds to suspect an offence, they are required to conduct any further interview of the suspect under caution, informing them of their right not to answer questions and that other protection afforded under the Police and Criminal Evidence Act (PACE) and its Codes of Practice will apply.

An individual suspected of manslaughter might be detained at a police station at this point. No individual can be arrested and detained for the distinct corporate manslaughter offence, but an authorised representative of the organisation will be asked to attend a taped interview under caution voluntarily. Any PACE interviewee should have a lawyer present to protect their interests properly.

The defence team's legal contingent has to be alert to conflicts of interest. There are  ethical guidelines discouraging solicitors for the organisation advising or representing individual staff members in connection with these interviews (since if the individual's interests and their employer's diverge, a solicitor retained by the employer can't act in the individual's best interest).

It has become common for multiple teams of solicitors to be appointed separately to advise the organisation - and the individuals involved. It's a good idea to maintain details of a panel of firms for use when needed.

On report

An organisation's greatest risk of self-incrimination (and of their prejudicing any defence of associated individuals) can come from the damage done unwittingly in their internal accident investigation reports following fatalities.

It's not idle curiosity that makes the police and other enforcing authorities often try to force disclosure of these reports. They are seeking to use the finding against the organisation as evidence, and to make the authors into potential prosecution witnesses.

There can be fundamental conflicts between the functions served by company accident investigations: on the one hand trying to identify crucial lessons from a serious accident; and, on the other, preserving the ability for frank discussions and expression of opinions on matters affecting liability or any potential defence, which have to be conducted with the absolute confidentiality that those involved expect in the wider interests of justice.

There are ways of managing this conflict, but it has to be done carefully at the start of any investigation, working with your organisation's legal advisers so that the "dominant purpose" of any documents and internal or external communications is clear, and you can agree what communications will take place and between whom.

There's nothing inappropriate about this, as occupational health and safety professionals sometimes seem to feel. The police and the HSE jealously guard the secrecy of their own investigations and rarely allow even defendants access to any of their evidence until its disclosure becomes mandatory after proceedings begin.

The Act will bring not just a flow of corporate prosecutions but the potential for satellite litigation - personal prosecutions of individual managers (and even health and safety professionals) for manslaughter or health and safety offences.

So it's essential to plan for emergencies with the help of legal advisers to deal with obtaining and recording evidence, supporting witnesses, tracking evidence removed by the police, and understanding the implications of internal accident investigations and the confidentiality of documents created for the purposes of legal advice.

Mark Tyler is a partner at solicitors Shook, Hardy & Bacon International LLP and the editor of Tolley's Workplace Accident Handbook, mtyler@shb.com