An updated version of the Work-Related Deaths Protocol has been agreed between its signatories to improve how specialist reporting agencies (SRAs) work together to investigate work-related deaths in Scotland. The protocol aims to emphasise the importance of collaborative working to conduct a thorough investigation of work-related deaths in Scotland to improve investigations generally and improve communication. This is reflected in the Lord Advocate Dorothy Bain KC's statement on the new protocol: “The effective investigation of work-related deaths requires the Crown Office and Procurator Fiscal Service to work closely with many partner agencies in a complex investigatory and regulatory landscape. I am confident that the introduction of this new protocol will transform the way we work together.”
The agreement has been revised following lessons learned by the Crown from their handling various major incidents. The effects of these major incidents on the protocol can initially be seen by the decision to widen the scope of parties involved. The first version of the protocol was agreed between the Health and Safety Executive, the Association of Chief Police Officers (Scotland), the British Transport Police, and the Crown Office and Procurator Fiscal Service. The new protocol has now extended its signatories to the Office of Rail and Road, the Maritime and Coastguard Agency, the Office for Nuclear Regulation, and the Scottish Fire and Rescue Service.
The content of the protocol remains largely unchanged in terms of its outcome on its signatories, with amended wording providing more focus on ensuring collaboration between investigating parties. Updates to each section of the protocol are described below.
Introduction
The underlying principles of the protocol largely remain the same as the first version, however, an additional principle has been included to agree a media strategy to ensure consistent messaging, improving communication in investigations.
Management of the investigation
There is a new focus on the lead party to an investigation being the 'coordinating lead', as opposed to simply the 'lead' or 'primacy'. Updates have also been made to what is expected from liaison between organisations, now explicitly noting that there should be an early meeting to establish roles and responsibilities, agreeing the management of information. It is also expected that there be regular meetings to review progress.
Investigating parties should agree on a range of factors, which now includes which order reasonable lines of inquiry are to take place and by whom, and agreed milestones and involvement of parties in associated investigations. The pre-existing list has been expanded to note that parties are to consider the need to maintain continuity of evidence when sharing evidence and findings, and the suggestion of a strategic liaison group being formed for large-scale investigations has been removed.
Decision making
The revised protocol recognises that the Procurator Fiscal may not be able to make an early decision on whether a serious criminal offence can be excluded in certain large and complex investigations, also noting that SRAs are also to investigate whether an offence has been committed under their own legislative regime when investigating the circumstances of the death.
Sharing of material between the police and SRAs during the investigation
Information surrounding disclosure has been expanded to highlight that there must be a legal basis for sharing information between the police and SRAs, and to acknowledge the Crown may decide certain information cannot be shared between the police and SRAs on some occasions.
The decision to prosecute
The updated protocol now notes the Procurator Fiscal will conduct a full review of material gathered during the investigation and consider if any further lines of inquiry are necessary to establish criminality. It has also updated the point that no prosecution decision will be made publicly available until after the accused and bereaved have been advised to narrow this to the bereaved nearest relatives.
The 'Victim right to review' process, enabling victims to request a review of a decision not to proceed with a case, is now referred to within the agreement. The process allows victims to make such a request within one month of learning of the decision – although later requests are accepted, it is more difficult to take action – which COPFS will aim to review and make a decision on within 20 working days. The protocol stresses that the review process must conclude before a final prosecution decision can be made.
Fatal accident inquiries
The section on FAIs has been amended to highlight that a prosecution will not automatically result in an FAI being dispensed with. This aligns with trends being seen in the sector, with the team at Brodies noting an increase in the number of FAIs following prosecution.
The protocol adds that the bereaved nearest relatives will be informed of decisions in accordance with the Family Liaison Charter standards. Although not mentioned in the protocol, bereaved relatives can also make use of the 'Victim right to review' process outlined above in relation to any FAI decision.
National liaison
Signatory parties have additionally agreed that the National Liaison Committee, responsible for reviewing the protocol, will liaise with the NLC for the English and Welsh Work Related Death Protocol at least once a year.
It remains to be seen if the updated protocol will transform the way SRAs work together, as the Lord Advocate expects, however it does represent an advancement in collaborative efforts to investigate work-related deaths in Scotland, enhancing the framework for liaison and communication among SRAs. If you find yourself subject to an investigation, or want to understand more fully how this protocol may affect you and your business going forward please do contact Clare Bone or one of our health and safety lawyers.
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