C.752/01

Parliamentary Commissioner Act 1967

Report by the Parliamentary Commissioner for Administration

(the Ombudsman) to

Mr Gary Streeter MP

of the results of an investigation into a complaint made by

     Mrs X

1.	  Mrs X complained about the conduct by the Health and Safety Executive (HSE) of an investigation into the industrial accident that caused her husband’s death.  She alleged that there had been unreasonable delays during the course of the investigation and that HSE had failed to keep her informed of progress.  She also alleged that HSE had not given proper consideration to the possibility of culpability on the part of the directors of the company that had employed her husband, and in that respect had not attempted to interview the relevant company personnel at the appropriate time.

2.	   My investigation began in January 2001 once the Ombudsman had obtained comments from the Director General of HSE after the referral of the complaint by the Member.  I have not put into this report every detail investigated by the Ombudsman’s staff, but I am satisfied that no matter of significance has been overlooked.  Paragraph 6 of schedule 3 to the Parliamentary Commissioner Act 1967 provides that the Ombudsman shall not conduct an investigation in respect of the commencement or conduct of civil or criminal proceedings before a court of law. My investigation has accordingly been concerned with the administrative functions of HSE, not their decision as to whether to begin a prosecution against one or more of the directors of the company that employed Mr X. In addition, section 12(3) of the Act prevents the Ombudsman from questioning the merits of discretionary decisions taken without maladministration. The statutory and administrative background to HSE’s actions and decisions is set out in the annex to this report.

Investigation
3.	  1998  In August 1998 Mrs X’s husband, Alex, was working for Branford Civil and Marine Ltd. Branford had been sub-contracted by Tilbury Douglas Construction Ltd to construct a stop-lock as part of a marina development at Portishead Docks.  That involved dropping two rows of steel piles into the lock by crane and filling the gap between the rows with concrete. According to subsequent accounts, the events leading to Mr X’s death began when one pile jammed with some 20 feet protruding above ground level.  It remained in that position for three days awaiting an opportunity to free it.  On 24 August, a group of workers, including a foreman and Mr X, who were waiting for some tools required to start their allocated work, decided to try to solve the problem of the jammed pile.  While the foreman operated the crane, Mr X climbed a ladder to attach it to the top of the pile.  The ladder was leant against the pile and, while Mr X was on it, the pile freed itself and fell into place, causing him to fall into the lock and incur severe head injuries.  HSE received a telephone call from the emergency services, requesting that an inspector attend the site.  An inspector (to whom I refer as inspector A) did so.  He examined the scene of the accident and took photographs.  He took statements, under section 20 of the Health and Safety at Work etc. Act (see annex, paragraphs 2 and 6), from workers who had witnessed the accident.  On 25 August he made a second visit to the site, accompanied by another inspector (inspector B).  He took more photographs, and statements from the Tilbury Douglas senior site manager and the Branford site manager.  He also obtained safety plans from Tilbury Douglas and Branford, a number of risk assessments and working method statements relating to the work on the stop-lock, and copies of various training certificates.  Because it was known that Mr X was unlikely to survive his injuries, the Coroner’s officer became involved, and invoked the liaison protocol for work-related deaths (see annex, paragraph 12).  From that point, evidence collected was shared with the police, until the police withdrew in October 1998.  On 26 August inspector A visited the site with an inspector who specialised in construction engineering.  He took more photographs, a further statement from the Branford site manager, and copies of further method statements.  On one of his visits, inspector A obtained Branford headed paper showing the name of the director responsible for safety.  On 27 August Mr X died.

4.	  On 2 September an HSE principal inspector, the supervising officer of inspector A and inspector B, wrote to Mrs X informing her that HSE were carrying out an investigation but that, because they had to interview a lot of people and might also need to take into account what was said at the inquest, it could take some time to complete.  He asked her to contact inspector A if there was anything she wished to ask.  He said he was enclosing HSE’s leaflet “Advice and Information for Bereaved Families” (see annex, paragraph 13). On 3 November inspector A submitted a report of his investigation to the Coroner’s officer.  The report concluded that control of the work on the stop-lock had been predominantly in the hands of Branford; both Tilbury Douglas and Branford had failed to address the obvious risks involved, issue clear instructions on the method of work required, and monitor compliance with the health and safety rules of the site.

5.	  1999  On 28 January 1999 inspector A submitted an accident report to the principal inspector.  In that report, he commented on a lack of adequate risk assessments and method statements in connection with the work on the stop-lock, and slack site management.  He noted that risk assessments and method statements had been put in place since the accident, which would probably have prevented it had they been in place at the time.  He said that the accident had not been a simple unfortunate event, but the result of a failure to manage the obvious risks of the operation, and to monitor the work in progress.  There was evidence that Tilbury Douglas did not regard the management of Branford’s staff as being their remit.  There were numerous breaches of health and safety legislation by both companies.  Inspector A attached separate reports proposing prosecution of each company.  In those reports, it was noted that the current opinion of the police was that manslaughter charges were not appropriate.  It was assumed that the inquest would return a verdict of accidental death; any other verdict would require re-assessment of the evidence.  Commenting on the attitude of the proposed defendants, inspector A said that Tilbury Douglas had been very co-operative during the investigation and fully expected to be prosecuted; Branford appeared to be aggressively defensive.  On 28 February inspector A left HSE, having handed the file over to the principal inspector, who passed it to inspector B.

6.	   On 29 April the specialist inspector who had visited the site on 26 August 1998 (paragraph 3) submitted a report on the accident for the Coroner.  He commented that the jammed pile should have been mechanically secured if it was to be left for any length of time because of the possibility that it might become free suddenly and move without warning.  He also commented that the hazards of working at height were well known and documented.  He concluded that the use of the ladder had not been a safe method of working; it would have been reasonably practicable, and a safe method of working, to use a man-riding basket suspended from the crane.

7.	  On 5 May the Coroner’s inquest took place.  Inspector B gave evidence for HSE; he has told the Ombudsman’s staff that he was robustly cross-examined by the companies’ representatives on such points as possible recklessness on the part of Mr X.  The inquest returned a verdict of accidental death.  On 11 May inspector B submitted a report to the principal inspector proposing prosecution of both companies.  In summary, he said that investigation suggested that an unsafe method had been used at the time of the accident, and there was evidence to suggest that there had been poor control over the risk of falls generally when constructing the stop-lock.  He concluded that the strongest prosecution case related to the system of work for the process rather than the methodology used at the time of the accident.  He suggested that further comment be sought from the specialist inspector, whose previous report (paragraph 6) had been limited to the accident itself.  On 17 June the principal inspector responded.  He agreed that the line to take was that there had been an inadequate risk assessment; that had led to inadequate preventative and protective measures regarding the construction of the stop-lock; as a consequence, it had been entirely foreseeable that experienced workmen would find a pragmatic way of getting the job done, in the event choosing an unsafe method.  He suggested that inspector B should consider using the Construction (Design and Management) Regulations 1994 (see annex, paragraph 4), and that they should review the material that the defence might use to argue that the risk assessment had been adequate and the men involved had acted irresponsibly.

8.	   By Mrs X’s account, in June her brother made three telephone calls to HSE asking about progress on the case, but they did not return the calls.  On 7 July he telephoned again and was told that inspector A was no longer employed by them and that they had transferred the case to inspector B.  On contacting HSE again he was able to speak to inspector B, who said that the case was near completion and summonses would soon be issued, but he wanted to ensure that a court date did not coincide with the anniversary of Mr X’s death.  (Inspector B told the Ombudsman’s staff that he could not recall what he had said on that occasion about the progress of the case, and had taken no note of the telephone call, as he had been out on a construction site at the time.  However, he believed that he would not have said that summonses would be issued soon, because at that time he did not consider that the case had been made.  He believed that by then he and the principal inspector had decided to consult the specialist inspector, in order to obtain an expert opinion as to the extent to which the evidence would permit them to link any alleged failings associated with the accident to poor practice on the site as a whole, because he foresaw that if the case went to trial on the basis of the accident alone, the defence would seek to blame Mr X.  He added that he did not understand why Mrs X’s brother had asked for inspector A initially, as he was aware following the inquest that inspector A had left HSE and that inspector B was dealing with the investigation.  Inspector B had given Mrs X’s brother his mobile telephone number so that he could be contacted even if he was out of the office.)

9.	 In September HSE diverted inspectors away from their normal duties to investigate the collapse of a gantry from the Avonmouth Bridge, with the loss of four lives.  The head of operations for the region has told the Ombudsman’s staff that the principal inspector dealing with Mrs X’s case was the only principal inspector with suitable experience available to lead the Avonmouth investigation; it was also necessary to include inspector B in the investigation team, because he had experience of the Avonmouth site.  The specialist inspector was also engaged almost full time for several months in the investigation and recommissioning of the gantry work on the bridge.

10.	  On 10 September Mrs X’s solicitor wrote to HSE asking whether they had decided to prosecute Tilbury Douglas, Branford or their directors.  On 22 September inspector B wrote to the specialist inspector, asking for a statement providing expert opinion in relation to the extent to which the proposed defendants had met their duties in relation to work at height during the construction of the stop-lock.  He explained the approach to the prosecution that HSE envisaged taking, along the lines set out by the principal inspector (paragraph 7), and listed ten points that the statement needed to address.  On 7 October the solicitor sent HSE a reminder about his letter of 10 September.  On 11 October inspector B telephoned the solicitor’s office but was unable to speak to the solicitor.  On 19 October the solicitor wrote to Mrs X saying that on 11 October he had received a message from inspector B; it seemed that HSE had only just completed their investigation, and he had been told that inspector B was sending the papers to some form of liability expert before deciding whether to pursue the matter further against Tilbury Douglas or Branford.  The solicitor added that he gathered that enquiries into other accidents had delayed the investigation.  (Inspector B told the Ombudsman’s staff that he preferred to deal with approaches like those of the solicitor by telephone rather than by letter, because he could convey more information orally than he could commit to paper without prejudicing a case.  He had therefore telephoned the solicitor’s office and left a message for the solicitor to ring him back to discuss the case.  At that time the file had been with the specialist inspector, and he would not have wanted to give the impression that the investigation was complete.)

11.	  2000  On 8 January 2000 Mrs X wrote to the Member.  She said that within two or three weeks of the accident that had caused her husband’s death, the police and HSE had contacted her to inform her that, because there was no evidence of any criminal conduct or negligence, the accident would from then on be investigated by HSE.  She had known that little further could happen before the inquest.  After the inquest, inspector B had told her that proceedings would be taken against her husband’s employers for breaches of health and safety legislation.  Despite numerous telephone calls and letters from her solicitor, she remained unaware of what HSE proposed to do.  She did not necessarily wish them to take further action, but had expected to be kept informed.  Instead, they had left her with the impression that her husband’s death was of little importance to them.  She asked the Member to establish the current position regarding HSE’s investigation; why her enquiries had been ignored; and why after 17 months there had been little or no apparent progress.  On 13 January the Member wrote to the then Director General of HSE to that effect.

12.	  On 4 February the Director General replied to the Member.  She said that the accident was still under investigation and a final decision on any legal proceedings had still to be made.  The delay was regrettable, and it was clear that Mrs X should have been kept better informed of developments.  The current position was that the investigation was examining the adequacy of the work procedures followed by Tilbury Douglas and Branford.  Inspector B had confirmed that he had telephoned Mrs X’s solicitor on 11 October 1999 with an update and a brief explanation for the delays.  Further delay had occurred because key personnel had had to be diverted to the Avonmouth case; those inspectors would shortly be able to resume other work that had had to be put to one side.  Mrs X’s case was complex because of the type of work that had been in progress at the time of the accident and the site management arrangements.  HSE were now in the closing stages of their investigation; a decision on the appropriate legal action would be made promptly, and notified to Mrs X.  The Director General asked the Member to pass on to Mrs X her sincere regrets that HSE had failed to keep her properly informed about what was happening; inspector B would write to her solicitor about progress shortly.  On 8 February inspector B wrote to the solicitor along the same lines.

13.	  On 24 March Mrs X wrote to the Director General, referring again to the lack of contact from HSE that she had experienced, and pointing out that nearly two months had passed without an update.  She objected to the suggestion that a subsequent accident should take priority over that which had killed her husband.  She contrasted the service she had received from HSE with that she had received from the police, suggesting that HSE were failing to respond to the needs of families for justice and accountability.

14.	  On 13 April inspector B met the specialist inspector to discuss inspector B’s request of 22 September 1999 (paragraph 10).  That day the specialist inspector sent inspector B an outline expert witness statement setting out the evidence he could give.  He said that there was a lot of evidence relating to the accident, but much less relating to the working and supervisory practices for construction of the stop-lock.

15.	  On 14 April the principal inspector met Mrs X.  On 17 April the Director General replied to Mrs X’s letter of 24 March (paragraph 13).  She said that she was very sorry that her officials had failed to keep Mrs X properly informed.  She understood that the principal inspector had since spoken to Mrs X and arranged to meet her to discuss where matters stood and at what stages she could expect to receive further updates.  There were complex technical issues regarding the method of work adopted for the construction of the stop-lock, which had needed specialist input.  The inspectors concerned were working hard to complete the investigation and make a decision on prosecution as quickly as possible.  There had been a temporary delay while they dealt with the immediate aftermath of the Avonmouth incident, but they would now give priority to Mrs X’s case; it had not been the intention of her letter of 4 February (paragraph 12) to downgrade the importance HSE attached to the latter.

16.	  On 22 April Mrs X wrote to the head of operations, referring to her meeting with the principal inspector on 14 April.  She said that at that meeting she had wanted to raise a number of questions so that she could be satisfied that her husband’s death had been subject to an appropriately rigorous investigation; that proper consideration had been given to the question of manslaughter; and that HSE had considered whether to prosecute a director or manager individually under section 37 of the Health and Safety at Work etc. Act (see annex, paragraph 1).  She pointed to what was said about provision of information to bereaved families in HSE’s leaflet on the subject (see annex, paragraph 13).  She said that she had been disappointed by the meeting with the principal inspector, because he had not read the file or brought it with him, so had been unable to answer detailed questions about the investigation.  She had asked him whether consideration had been given to the prosecution of individuals under section 37.  He had replied that HSE did not prosecute individuals, but companies, company structures often being such as to prevent HSE from proving that a director was aware of what employees were doing.  Mrs X pointed out that Branford was a small company, and that there was little point in prosecuting it, as it had since gone into voluntary liquidation.  She did not believe that HSE had properly considered and investigated the conduct of individuals, in particular the directors of Branford.  It appeared that HSE had a policy not to prosecute under section 37, whatever the facts of the case, and would not seek evidence in that connection even where there had been a death.  The principal inspector had also said that previous safety failures (of which there had been several at the site) did not have a bearing on any subsequent neglect; she disputed that.  She asked the head of operations to tell her what investigation had been undertaken to determine whether there might have been an offence under section 37, and if necessary undertake further enquiries as to whether there was evidence for a prosecution under that section of the directors or managers of Tilbury Douglas or Branford.  Regarding manslaughter, Mrs X said that she had asked the principal inspector whether HSE had considered referring the case back to the police to undertake further enquiries.  He had replied that HSE never referred cases back to the police once the police had made an initial assessment; HSE had given no further consideration to the matter once they had taken over investigation of the case.  Mrs X argued that that was incompatible with HSE’s protocol for liaison with the police (see annex, paragraph 12), and with HSE’s instructions to inspectors, which said that they should continue to clarify during their investigation whether the circumstances of a fatal accident met the legal tests for manslaughter, and refer to the police any evidence pointing to that offence.  She believed that there was sufficient evidence for HSE to refer the case back to the police; she asked them to do so.

17.	  On 28 April the head of operations wrote to Mrs X saying that he would reply substantively to her letter of 22 April shortly.  He accepted that HSE had not handled certain aspects of the investigation as they should have done, and apologised in particular for the delays and lack of communication that had occurred.  On 8 May the head of operations wrote again to Mrs X.  He said that her case had been one of the first in the region to have fully involved the police under the joint protocol.  As such it had been part of a learning process for the police in looking at industrial accidents as possible manslaughter cases.  The police’s conclusion that there was no prospect of such a charge succeeding against any of the individuals or companies involved had been underpinned by a full analysis of the facts.  It was open to HSE to refer a case back to the police for reconsideration should any new material facts emerge that could challenge an earlier decision.  No such information had emerged during HSE’s investigation, or at the inquest.  Had the inquest reached a verdict of unlawful killing, HSE would have referred the case back to the police.  HSE had looked carefully at the legal responsibilities, under health and safety legislation, of those concerned, and tested the evidence against the Code for Crown Prosecutors (see annex, paragraph 11).  Their conclusion was that the tests in that Code were satisfied as regards Branford.  Accordingly they had within the last few days charged Branford with an offence under the Health and Safety at Work etc. Act; although the company was in liquidation, it had not yet been wound up and would have to answer the charge first.  As regards Tilbury Douglas and individual directors of Tilbury Douglas and Branford, HSE had concluded that there was insufficient evidence that they were, or should have been, sufficiently closely associated with the events surrounding Mr X’s death to be criminally liable.  Regarding the meeting on 14 April, the head of operations said that the principal inspector had read the file some months previously, and had discussed its contents in detail with inspector B before the meeting.  However, because of legal constraints he would not have been able to discuss the evidence in detail with Mrs X.  The file had been with the specialist inspector at another location.  The head of operations was sorry that Mrs X had been disappointed by the meeting.  He did not accept that the principal inspector would have said that HSE did not prosecute individuals, because that was true neither in general nor in relation to the principal inspector’s own actions in other cases.  The principal inspector had been correct to explain that proving consent, connivance or neglect against a director (those being the requirements for a prosecution under section 37 of the Act – see annex, paragraph 1) could be extremely difficult, especially when responsibilities within a company were not clearly defined and the individuals concerned were not directly involved in the incident.  Regarding previous safety failures, the head of operations said that he had looked into the history of HSE’s dealings with Branford and found information on two incidents, one in 1995 involving a prosecution, and one in 1999.  The general level of compliance with legal requirements was one factor that HSE considered when deciding what action to take.  The previous conviction would be brought to the attention of the court if Branford was found guilty in the present action.  In conclusion, the head of operations said that he accepted that HSE had not progressed their actions as speedily as they should have done; he apologised for that, and for their failure to keep Mrs X informed.  However, having reviewed the case he did not believe that their decisions would have been different had they taken them sooner, nor that they or the police had failed to consider properly the issues of manslaughter or actions against individuals.  He asked Mrs X to contact him if she wished to discuss matters further.

18.	  On 9 May HSE interviewed the Branford site manager for the third time.  On 11 May Mrs X wrote to the head of operations asking if she could meet him and inspector B to clarify the nature of the investigation they had undertaken and their decision regarding prosecution.  Following further correspondence, a meeting was arranged for 12 June.  On 16 May a summons was issued to Branford in respect of the charge referred to in the head of operations’ letter of 8 May (paragraph 17).  On 23 May the head of operations informed Mrs X that he believed that he and the principal inspector could deal with all the issues she wished to explore at the meeting; he warned her that, as the matter was now before the court, they would not be able to discuss the evidence in detail.  On 5 June Mrs X wrote to the head of operations setting out the issues she wished to discuss at the meeting, namely how HSE had concluded that the police’s decision regarding manslaughter had been underpinned by a full analysis of the facts (because she had met the police and believed their investigation to have been minimal); how HSE had concluded that no information had subsequently emerged that would warrant referral back to the police (because she believed that HSE should have been aware of the minimal nature of the police investigation); why HSE believed that there was insufficient evidence to prosecute any director of Branford individually (because she had discovered that one of the directors was the person in the company responsible for health and safety, and that that information had been contained in company documentation obtained by inspector A in the early stages of HSE’s investigation); and the history of safety within Branford and the extent to which that had been taken into account by HSE (because on 1 June the head of operations had informed her that further enquiries by HSE had revealed that they had prosecuted Branford in another part of the country in 1999).

19.	  On 12 June the head of operations and the principal inspector met Mrs X.  On 4 July Mrs X wrote to the head of operations about the meeting.  She said that she understood that it had been agreed by HSE that there had been an offence under the Health and Safety at Work etc. Act; that HSE were uncertain as to the extent to which that offence was causally linked to the death of her husband; that they had looked into the conduct of the company directors in relation to whether there had been consent or connivance for the purposes of section 37 of the Act, and found no evidence to justify a prosecution; and that they accepted that they had not looked into whether there had been neglect on the part of the company directors for the purposes of section 37, and had therefore decided, before the meeting, to undertake further enquiries.  They had also agreed to reconsider referral of the case back to the police.  She added that in her view it was clear that HSE had not undertaken any proper investigation into the conduct of the directors, whether in relation to consent, connivance or neglect, because they had failed to enquire into a number of areas that she specified involving the responsibilities and actions of the director of Branford responsible for safety.  She believed that HSE should reconsider the question of the causal link, and look hard for evidence relating to connivance and neglect.  She repeated her view that the police had likewise not undertaken a proper investigation, and had not considered the question of culpability on the part of the company directors; she asked HSE to bring the police back into the investigation immediately.

20.	  On 5 July the head of operations informed Mrs X that HSE’s enquiries into the section 37 issues were continuing.  On 6 July HSE again interviewed a Branford worker who had witnessed the accident; on 7 July they again interviewed the Tilbury Douglas senior site manager; on 11 July they again interviewed the Branford site manager; and on 14 July they interviewed the Tilbury Douglas safety adviser.  On 24 July the head of operations informed Mrs X that since their meeting extensive enquiries had been made into the section 37 issues and he would shortly be reviewing the situation to decide whether there was sufficient evidence to support any further charges.  On 1 August he did so, and decided not to pursue any further charges.

21.	  On 8 August the head of operations telephoned Mrs X and informed her that there was no possibility of pursuing charges against the company directors; by Mrs X’s account, the crux of the reason given for that was that HSE had left it too late to interview members of Branford’s staff who should have been interviewed in August 1998.  On 11 August Branford were fined £18,000 after pleading guilty to an offence under the Health and Safety at Work etc. Act, namely that on 24 August 1998 they had failed to discharge their duty under the Act to ensure the safety of their employees (see annex, paragraph 1).  After the hearing, the head of operations spoke to Mrs X.  By Mrs X’s account, the head of operations admitted that HSE “took our eye off the ball” in relation to their investigation; confirmed that the issue of neglect on the part of company directors had initially not been considered; and said that he believed that inspector A had not gone far enough in his investigation, and that the passage of time since then was too great to make interviewing the directors appropriate now.  Nevertheless, he asserted that HSE could not substantiate the necessary link between the directors and the accident that would have supported a section 37 charge, and had insufficient evidence to warrant an attempt to interview any of the directors under the rules of the Police and Criminal Evidence Act (see annex, paragraphs 3 and 7).  Mrs X was not satisfied with his explanations; she could not see what more evidence HSE had needed, particularly as it had been confirmed in court by Branford that one of their directors had specific responsibility for safety, and the line of responsibility in that respect had been made very clear in the documentation obtained by inspector A at the start of HSE’s investigation.  On 12 September the Member referred Mrs X’s complaint to the Ombudsman.

HSE’s comments on the complaint
22.	  In reply to the Ombudsman’s statement of complaint, the present Director General accepted that HSE had failed to keep Mrs X properly informed of progress with their investigation, especially when there had been delays in bringing the case to court following the inquest in May 1999.  He said that part of the reason for the delay between September 1999 and January 2000 had been the need to divert a significant amount of resources – including the staff who were dealing with Mr X’s case – to the investigation of the Avonmouth Bridge gantry accident.  He regretted if HSE had given the impression that the four deaths that had resulted from that accident were more important than that of Mr X.  HSE had had to undertake a detailed investigation of that accident with the police as a matter of priority, due to the need to secure evidence and to identify any issues of wider significance. The critical stages of the Avonmouth investigation had only been completed in early 2000; at that point HSE had became fully aware of Mrs X’s concerns and as a consequence had met with her and her advisers several times to explain their actions.  As a result of Mrs X’s complaints HSE had learnt valuable lessons and were reviewing the way that they liaised with the victims of accidents and their relatives.  The Director General repeated HSE’s apologies to Mrs X for the further distress that HSE’s delays and failures to keep her informed must have caused after her husband’s death.

23.	 The Director General summarised the conclusions that HSE had reached regarding prosecution of the various parties involved in Mr X’s case.  Regarding Tilbury Douglas, it had been concluded that they had taken reasonable steps to discharge their responsibilities under the Health and Safety at Work etc. Act and the Construction (Design and Management) Regulations (see annex, paragraphs 1 and 4).  Regarding Branford, it had been concluded that they had been in breach of their duty under the Health and Safety at Work etc. Act to safeguard their employees, in that no specific risk assessment had been carried out to cover the foreseeable eventuality of a pile jamming, nor had they used the three days between the problem occurring and the accident to develop a safe system of work.  They had also not taken steps to leave the pile in a safe condition, or told workers that they were not to try to free it without explicit instructions on how to do so.  As to whether HSE had taken proper steps to investigate the possible culpability of individual directors for the accident, the Director General said that he was satisfied that the inspectors concerned had investigated the circumstances of the accident thoroughly and had considered from the outset the role of the directors of Branford, especially in relation to any consent or connivance in the accident. In particular, inspectors had considered whether there was any evidence that the directors knew or ought to have known about the site incident (the jammed pile and method of attempting to free it) that had led to Mr X’s death.  However, after noting that there was no evidence that any of the directors had visited the site over the three-day period concerned, or that they had been consulted about the problem, they had concluded that the directors could not be said to have consented or connived in any way with the decision.  The issue of whether there had been any neglect on the part of directors had not been considered in detail at the initial investigation, as it had been felt that they were too remote from the immediate sequence of events leading up to the accident to be held personally responsible.  The issue of neglect had been considered insofar as the inspectors had established that the company did have in place the essential elements of a health and safety system, so the directors could not have been said to have neglected their legal responsibilities.  In particular, the site manager had received appropriate training; the workmen, including Mr X, were competent; adequate equipment, including cranes and man-riding baskets, was available to do the job safely; personal protective clothing, including safety harnesses, was provided; and the management systems required by the Construction (Design and Management) Regulations were functioning.  However, Mrs X had raised important issues regarding whether a director, especially Branford’s designated safety director, was guilty of any neglect of his duties, in a much wider sense than that related to any direct involvement in the accident.  For example, had he been aware of the method of work employed and had it been effectively monitored; had there been earlier warnings of safety problems; had the company received previous advice; and had he taken steps to ensure that safety on the site was adequately resourced and key staff properly trained?  Many of those same responsibilities also lay with the corporate body.

24.	 The Director General said that HSE had examined all those aspects when reviewing the case in early 2000 and further evidence had been collected from a range of sources to try to ascertain what steps the director responsible for safety had taken to discharge his responsibility.  Although that had been late in the investigation, there had been no legal reason why directors could not be interviewed at that stage.  Inspectors had considered that trying to compel individuals to be interviewed under section 20 of the Health and Safety at Work etc. Act (see annex, paragraphs 2 and 6) would be inappropriate, as statements obtained under those circumstances could not be used in evidence against them. Individuals suspected of having personally committed an offence had to be interviewed under the Police and Criminal Evidence Act rules (see annex, paragraphs 3 and 7), where they had a right to silence.  HSE inspectors had no powers of arrest; after Mrs X had raised her concerns, they had discussed the matter with the police, but the police had considered that, as no new evidence had come to light to cause them to reconsider their earlier decision not to pursue a manslaughter charge, there were no grounds for further action.  The head of operations had concluded that there was no prima facie evidence that the director responsible for safety had deliberately done anything to undermine or negate the delivery of safety on the site generally, and that there was no evidence of failure or neglect on his part that could be said to be a contribution to the circumstances of the accident, which had resulted from an ad hoc decision by a group of experienced men to undertake the work in a patently dangerous manner.  Accordingly there was nothing to support a charge under section 37 of the Act. The Director General did not believe that earlier investigation by HSE of the question of neglect would have resulted in a different decision.  The Director General concluded by saying that the issue of the personal responsibility of directors for health and safety matters, and how the law might be changed so that everyone was clearer about what was expected of them, was currently being reviewed by HSE and the Health and Safety Commission as part of their strategy on “Revitalising Health and Safety”; the lessons learnt from the present case would be taken forward in the review.

Further enquiries
25.	  Inspector A told the Ombudsman’s staff that he had known that one of the directors of Branford was responsible for safety; he had understood that there were no other directors significantly involved with the site.  He had considered prosecuting that director.  However, it had been decided in discussion with the principal inspector that such a course would require the collection of more evidence.  In order to prove consent or connivance on the part of the director, there would need to be proof that he had known about breaches, and condoned them in some way (even tacitly); interviews with the director and, ideally, the site manager, would have been needed.  Interviews conducted under the Police and Criminal Evidence Act rules (see annex, paragraphs 3 and 7) were not suited to exploring possibilities; such an interview with the director at that stage would have been at best fruitless, and at worst counter-productive, in the absence of sufficient evidence.  An interview with the director using HSE’s powers under section 20 of the Health and Safety at Work etc. Act (see annex, paragraphs 2 and 6) would have risked spoiling any other potential prosecution.  It had therefore been decided not to question the director until after the possibility of a manslaughter charge had disappeared; in practice, that had meant awaiting the outcome of the inquest, which might have reached a verdict of unlawful killing, or some other verdict that would have required re-opening of the joint investigation with the police.  Inspector A had therefore left the principal inspector with an investigation file that was for the most part complete but did not include a statement from the director.

26.	  Regarding the question of neglect on the part of the director, inspector A said that the health and safety arrangement adopted by Branford placed all responsibility for the site on the site manager.  In order to demonstrate neglect by the director, there would need to be either managerial evidence of problems having been raised and ignored, or evidence of site visits by the director where it could be proved that he had seen unsafe practices and not taken steps to stop them.  It might also have been possible to prove that the company was generally managed in a neglectful manner.  However, the existence of a management system (however bad) tended to ensure that the director was “buffered” by the site manager.  The accident had not in itself provided sufficient evidence to prove a case of neglect.

27.	 The Ombudsman’s staff asked the head of operations, the principal inspector and inspector B about the resourcing of HSE’s field operations directorate and the effect of that on the handling of Mr X’s case.  The head of operations said that, in overall terms, HSE’s funding had decreased and the number of experienced inspectors nationally had dropped. However, South Wales and the South West (the local group relevant to the case) had shared a ring-fenced complement of 16-18 construction inspectors with the North Wales and Marches group.  (Since April 2000 three groups, each managing a smaller area, had been created and the number of inspectors had been increased.) Maintaining the complement had required juggling to counter the effects of staff leaving unexpectedly and the three to four years it took to get recruits fully up to speed with the construction sector.  A further significant workload factor was that more prosecution cases now went to the Crown Court, which necessitated keeping the file open for two to three years after the accident. Thus, all significant casework took longer than in the past.  However, the head of operations believed that there had been no resource problem affecting the initial investigation of Mr X’s case up until the inquest in May 1999 (paragraph 7).  Subsequently, a heavy load of fatal accident cases and difficult prosecutions taken on by the group had had an impact. Nevertheless, he did not consider that the delays had been exceptional.

28.	 The principal inspector added that at the beginning of 1998 he had had five construction inspectors in Bristol.  However, one had left and inspector A had gone part-time. Furthermore, in the 1998/1999 business year, his team, which included two inspectors in both Cardiff and Plymouth, would have expected to deal with three to four cases involving fatalities; in the event they had dealt with ten. They had also been in the Crown Court six times, and the Avonmouth case had “stopped us dead in our tracks”. He believed that if they had not been overloaded Mr X’s case might have gone to court sooner than it did.

29.	  Inspector B said that following the inquest, at which no new lines of enquiry had emerged, his task had been to bring the case to a logical conclusion, as suggested by the evidence.  He had accordingly reviewed the evidence in detail.  Inspector A had prepared a draft prosecution report containing various recommendations; however, in inspector B’s view the evidence on file did not support those recommendations.  He believed that the evidence would have been collected if it had existed; inspector A’s report rested on assumptions.  He foresaw that if the case went to trial on the basis of the accident alone, the defence would seek to blame the actions of Mr X; it would be preferable to link any alleged failings associated with the accident to continued poor practices on site, were there to be sufficient evidence of such.  He had therefore wanted an opinion from the specialist inspector as to whether there were grounds to make a broader case against the site operation as a whole, and had recommended that to the principal inspector.  He had then gone on leave; the principal inspector’s response had coincided with his return.

30.	  Inspector B acknowledged that there had been a delay between the principal inspector’s response to him on 17 June 1999 (paragraph 7) and his sending the file to the specialist inspector on 22 September (paragraph 10); he said that that had been due to pressure of other cases.  On 19 June there had been a fatal accident that he had had to deal with immediately; several other urgent incidents had required his attention.  On 8 September the Avonmouth Bridge accident had occurred; between then and the end of the year, he had worked exclusively on the Avonmouth investigation.  In January 2000 the police had taken the lead in the investigation and he had had to support them.  Following a month’s leave from the beginning of February to the beginning of March 2000, he had had to continue to liaise extensively with the police on the Avonmouth case, and had spent several weeks at the police station.  After Mrs X’s complaint in January 2000, he had had a meeting with the head of operations and the principal inspector, and subsequently had begun to press the specialist inspector for the advice for which he had asked in September 1999; he had not seen it as appropriate to do so previously, because he knew that the specialist inspector was also overloaded, and heavily involved with the Avonmouth case.  Eventually he had gone to see the specialist inspector and spent a day discussing Mr X’s case with him.  The outcome was that the specialist inspector could offer no prospect of building up a prosecution case beyond what little had been identified.  Inspector B had then been instructed to take further statements from those involved, in order to see if there was an identifiable link between the accident and the Branford director responsible for safety.  He emphasised that he had not previously been asked to gather any further evidence.

31.	 The Ombudsman’s staff asked about the steps that HSE had taken to inform Mrs X and her representatives of the progress of the case. The principal inspector said that with hindsight they should have kept in touch more, but the degree of contact had differed little from the vast majority of fatal accident cases, in which families had tended not to chase HSE for details. He had understood that communication was to be with Mrs X’s brother (who was a senior police officer and experienced in dealing with legal matters) or their solicitor.  He accepted that they should have responded better to the solicitor, but said that the channels of communication had been open, and HSE had had an active connection with a family member who knew that he could contact them himself.  Inspector B said that he had had no contact with Mrs X directly and had been asked not to contact her. He recalled speaking to her solicitor at the inquest and around 22 June 1999 to her brother, who he believed had had his mobile telephone number.  He had made it clear to both that they could contact him at any time.

32.	 The Ombudsman’s staff asked to what extent a prosecution under section 37 of the Health and Safety at Work etc. Act had been considered.  The head of operations said that the correct approach was to look at the balance of responsibilities between different parties (foreman, site manager, contract manager, director etc.), and consider whether any individual was particularly notable for acts or omissions.  HSE had asked themselves whether Tilbury Douglas and Branford had had robust safety systems in place.  They had established that Branford had been assessed by Tilbury Douglas before being taken on and had been found to be reasonably competent.  Tilbury Douglas’s internal minutes had indicated no significant health and safety problems with Branford that had needed to be raised to the level of off-site management.  The activity that had led to the accident had been short, unplanned, unnecessary, and unknown at the time to all but the participants, and the individual responsibility of the site manager for the incident had been low; accordingly, consent and connivance had been ruled out.  The head of operations accepted that health and safety legislation did not set boundaries for HSE’s scope of operation and that they had not looked as thoroughly at neglect as they might have done; but he said that proving neglect was difficult, because it was proving a negative.  If the evidence had pointed to, for example, a lack of training or equipment, or workers being asked to follow dangerous systems of working, HSE might have looked further into neglect; but it was beyond their brief and not a good use of their resources to look further than those indications.  Inspectors were legally required to follow all reasonable lines of enquiry, and most did so in practice by making an informed judgment as to whether a line of enquiry would be fruitful.  After Mrs X had made representations, HSE had, rightly or wrongly, agreed to pursue the matter further.  Having reviewed the file, he had discussed with the principal inspector and inspector B what sources of additional evidence there might be, and what such evidence would need to demonstrate in order to justify attempting to interview the Branford safety director under the rules of the Police and Criminal Evidence Act.  However, they had found no independent evidence of a systematic failure in the basic safety infrastructure of Branford which could be alleged to be due to the consent, connivance or neglect of the safety director.  The head of operations added that HSE were now more assiduous about section 37 issues, and were helped in that by the increasing skill of the police in investigating gross negligence.

33.	 The principal inspector said that he had discussed with inspector A the question of directorial influence, and their initial position had been that that area would be explored by the police in connection with possible manslaughter charges, and that they would not interview a director at that stage.  They had had a flow chart showing directors and site responsibility and knew which director was responsible for safety.  They had considered whether there was any obvious, active neglect in terms of what the director had or had not done.  Their view was that the director’s responsibility was to ensure that there was a system in place that worked.  They had seen that there was such a system.  On that basis they had thought that a section 37 prosecution based on neglect would fail.  In any event, action could not be taken against a director without a breach by the company, so they had focused on the latter.  The subsequent meeting with the specialist inspector (paragraph 14) had indicated that the proposed case against the company was weak; in the specialist inspector’s opinion, there was no strong evidence that inadequate method statements or unsuitable safety systems had led to men working unsafely and, ultimately, to the unsafe act that had caused Mr X’s death.  The principal inspector acknowledged that the concept of neglect had always been present in health and safety legislation.  However, he said that HSE’s practice had been to pursue section 37 in relation to neglect only where there were clear indications of a complete lack of action, as there were large resource implications in pursuing less obvious forms of neglect, and HSE were not resourced for the task; they tended to assume that less obvious forms of neglect would not be backed up by evidence.  He considered that the issues to which the Director General had referred in his reply to the Ombudsman (paragraph 23) represented a higher benchmark than that to which HSE had previously worked.

34.	  Inspector B said that he had been of the opinion that there was no evidence upon which to prosecute directors individually.  Branford had made efforts to manage safety that were acceptable by industry standards; if the company had taken legal advice and fought HSE’s case, HSE might not have succeeded in obtaining a conviction.  Although the director responsible for safety had been identified, there was no benchmark against which to measure the actions or inactions of a safety director.  The general response of those interviewed by HSE had been that the director in question had had no real connection with the incident.  HSE could not pursue a section 37 prosecution without proving a case against the company first.  The question of the culpability of directors had been borne in mind throughout, but no clear connection could be identified from the evidence.  There had been a contract manager, a site manager and foremen between the directors and the workforce, and the evidence suggested that the safety director had only visited the site on two occasions during the contract and dealt principally with issues relating to plant and production.  It had been unnecessary to interview him or any other director for the purposes of the company prosecution, as HSE had identified the company’s potential defence from what had been said at the inquest.  HSE did not shy away from prosecuting individuals, but such prosecutions were only 3% of the total, and those had tended to be cases where direct control and personal knowledge of the offence could be shown.  In most cases it was very difficult to identify a direct link between the actions of directors and the activities on site.

Findings
35.	 I consider first the question of delay by HSE in their conduct of the investigation of Mr X’s case.  HSE’s leaflet says that in most cases they will start an investigation of a fatal accident within 24 hours of being notified (see annex, paragraph 13).  In the present case, they started immediately, and made three visits to the site, involving three inspectors, in the first three days.  That was a commendably prompt response.  I note also that, in accordance with HSE’s instructions (see annex, paragraph 6), a specialist inspector was involved from an early stage.  The leaflet says that complex investigations can take months, and sometimes longer; clearly this investigation fell within that category, and the letter that the principal inspector sent Mrs X on 2 September 1998 contained a warning to that effect (paragraph 4).  The production by inspector A of his report to the principal inspector by the end of January 1999 (paragraph 5) was well within the time frame that might reasonably have been expected to apply in the circumstances.  Inspector A’s recommendations could be no more than provisional pending the result of the inquest, which did not take place until May 1999.  I find no cause to criticise the speed of HSE’s actions up to that point.

36.	  After the inquest, inspector B promptly submitted his own report to the principal inspector (paragraph 7), and the principal inspector replied upon inspector B’s return from leave (paragraph 29).  However, after that there was a delay of three months before inspector B referred the case to the specialist inspector, only the last two weeks of which might be attributed to the interruption caused by the Avonmouth case.  That was despite the fact that inspector B had identified a need to consult the specialist inspector in his report, and that he believed the principal inspector to have agreed to that at least by the time inspector B spoke to Mrs X’s brother in early July (paragraph 8).  Inspector B has explained that that delay was due to the pressure of other cases (paragraph 30).  I accept that that was probably so.  In considering whether that should nevertheless be attributed to maladministration in the form of poor management by inspector B or by the relevant group of HSE of their individual or collective workloads, I have had regard to the explanations about resourcing given by the head of operations (paragraph 27) and the principal inspector (paragraph 28).  The Ombudsman would not generally regard under-resourcing as an acceptable excuse for shortcomings in service to the public.  However, in the present instance I note that the number of cases involving fatalities dealt with by the principal inspector’s team was said to be much higher than usual that year; that the construction industry sector of HSE’s work required by its nature an exceptionally rapid response to new cases, with inevitable consequences for work in progress; and that efficient use of taxpayers’ money would even in an ideal situation tailor staffing as closely as possible to that which the anticipated workload would demand.  It is also relevant that, when inspector B eventually wrote to the specialist inspector on 22 September 1999, his request for advice was detailed (paragraph 10); the task was not simply a matter of sending the file on as it was.  Against that background I regard the delay in progressing Mr X’s case during the summer of 1999, while unsatisfactory, as not having been so unreasonable in the circumstances as to warrant criticism of inspector B or HSE generally.

37.	 I turn next to the effect of the Avonmouth investigation, the need for which arose in September 1999 and which, according to the principal inspector (paragraph 28), brought other work to a halt.  I recognise that from Mrs X’s point of view it was unfair that HSE’s investigation of a much later incident should be given priority over her husband’s case.  However, prioritising cases was a matter for HSE’s judgment, and strictly chronological handling of work is not necessarily the correct approach in all circumstances.  HSE were entitled to direct resources to what they saw as an especially urgent and important investigation.  However, in doing so they should, if they foresaw that that diversion would last for some time, have been all the more anxious to reassure the parties concerned with other cases that they had not been forgotten.  In the event, Mrs X received the impression that HSE attached little importance to her husband’s case.  I attribute that to the fact that HSE had from the outset adopted a passive stance in their dealings with Mrs X and her representatives.  That is indicated first by the principal inspector’s initial letter to Mrs X of 2 September 1998 (paragraph 4), which, while helpful in inviting her to contact inspector A if she wished to ask anything, was not as helpful as the more proactive approach implied by HSE’s leaflet for bereaved families (see annex, paragraph 13) might have been.  The principal inspector evidently considered a largely passive position regarding communication on the part of HSE to be the norm (paragraph 31).  When Mrs X’s brother and her solicitor began to make enquiries following the inquest, HSE’s response was minimal, and left much scope for misunderstanding (paragraphs 8 and 10).  I acknowledge the principal inspector’s and inspector B’s point that a channel of communication was open (paragraph 31), but agree with the Director General that more should have been done actively to keep Mrs X informed (paragraph 22).  As it was, HSE’s responses to enquiries on the case did not even meet the standards set out in their general leaflet (see annex, paragraph 14).  I welcome the Director General’s apology on that point, which I now pass on to Mrs X through this report, and his assurance that lessons about liaison with the victims of accidents and their relatives have been learned.

38.	 Mrs X raised her concerns about lack of progress on the case with HSE through the Member on 8 January 2000 (paragraph 11).  Despite a reassuring and suitably apologetic letter from the then Director General on 4 February (paragraph 12), it was not until April, after Mrs X had written to the Director General on 24 March, that action on the case began in earnest again (paragraphs 13 and 14).  I criticise HSE for failing to give the case the degree of priority implied by the Director General’s reply to the Member of 4 February 2000, necessitating a second letter from Mrs X and another apologetic reply from the Director General on 17 April (paragraph 15).

39.	  In all, a year passed between the inquest and the issue of a summons against Branford.  That was too long, and poor communication by HSE made the delay seem worse.  Nevertheless, I find HSE’s explanations and apologies to Mrs X to be a sufficient response to that justified part of her complaint, with the exception of the period from January 2000 onwards, to which I return below (paragraph 46).

40.	  The other part of Mrs X’s complaint relates to the consideration given by HSE to the possibility of culpability on the part of company directors individually.  That issue first arose primarily in the context of the possibility of a manslaughter charge, which was a matter for the police.  It appears that by the end of 1998 or thereabouts the police had indicated to HSE that they would not be pursuing a prosecution for manslaughter (paragraph 5).  Mrs X later contended that HSE should refer the case back to the police (paragraph 16).  That option was open to HSE at any time.  However, given that HSE had conducted a joint investigation with the police at the outset (paragraph 3), I do not find it unreasonable for them to have taken the view that, after the police had decided to withdraw, it would require a new development of considerable significance – such as a verdict by the inquest of unlawful killing – to warrant asking the police to become involved again.  In the absence of that, HSE were entitled to focus on the possibilities for prosecution by them under health and safety legislation.

41.	   Section 37 of the Health and Safety at Work etc. Act (see annex, paragraph 1) sets out the liability to prosecution of individuals where an offence by a company has been committed with their consent or connivance, or through their neglect.  The Health and Safety Commission’s Enforcement Policy Statement (see annex, paragraph 5) instructs HSE, subject to general guidelines as to when a prosecution is appropriate, to recommend individuals for prosecution if a conviction is warranted and can be secured.  HSE’s Legal Proceedings Code (see annex, paragraph 10) advises that where a company has been convicted of an offence, a subsequent prosecution of a director under section 37 of the Act may require similar evidence against the director to that which was adduced against the company.  In Mr X’s case, there is no dispute that a conviction of Branford’s director with responsibility for safety would have been warranted if Branford’s offence had been committed with his consent or connivance, or through his neglect.  However, HSE decided that such a conviction could not be secured, for want of sufficient evidence.  Their decision not to prosecute the director is not a matter for the Ombudsman (paragraph 2).  My concern is with whether HSE took the steps that they might reasonably have been expected to take in order to place themselves on firm ground when making that decision, having regard to the options open to them for obtaining evidence or assessing its availability.

42.	  In her letter to HSE of 4 July 2000 (paragraph 19), Mrs X specified a number of points that she considered HSE should have investigated in order to reach a sound decision regarding prosecution of individuals.  Those centred on the respective responsibilities of, and the working relationship between, the Branford safety director and the Branford site manager; the extent to which the director had known about how operations were being undertaken on site and discussed them with the manager; and who had written the relevant statement of working method.  There is no dispute that those points were pertinent to the question of whether a conviction of the director under section 37 of the Act could be secured.  The evidence obtained by HSE about the accident itself was sufficient to rule out consent. The position with regard to connivance remained open to debate, depending upon the interpretation to be put upon the term; more importantly, the issue of neglect had been considered and investigated only in the most basic sense (paragraph 23). HSE’s Enforcement Handbook (see annex, paragraphs 6 and 7) suggests that the appropriate steps to be taken to resolve the outstanding points would have been an interview with the site manager, using HSE’s powers under section 20 of the Act, followed, if indicated by the information so obtained, by an interview with the safety director conducted in accordance with the Police and Criminal Evidence Act.  In the event, HSE did not put the points in question to the site manager until 11 July 2000 (paragraph 20), almost two years after the start of their investigation, and evidently as a direct result of Mrs X’s letter of 4 July.  I see no grounds on which to question the judgment of the head of operations that the information obtained by that interview and the other enquiries undertaken by HSE in 2000 did not give them sufficient indication of blameworthiness on the part of the director, his designated responsibility for safety notwithstanding, to justify an interview with him in terms of a personal prosecution, and that an interview with him was not crucial to the prosecution of the company.  The question remains as to whether those enquiries should have been undertaken earlier, bearing in mind the fact that they might have been expected to be more fruitful closer to the time of the accident.

43.	 Inspector A has suggested (paragraph 25) that the matter of the safety director’s culpability was left open until after the inquest.  It would have been preferable if he had explored fully from the outset, with company staff other than the safety director, facts relevant to the possibility of a link between the actions or inactions of that director and the activity that had led to Mr X’s death.  In the event, even the general evidence obtained by him relating to working and supervisory practices that was needed in order to prosecute the company was, in the specialist inspector’s opinion, relatively scant (paragraph 14); and further inquiries about HSE’s previous dealings with the company, which should have been collected during the investigation (see annex, paragraph 8), were also subsequently found to be necessary (paragraph 17 and 18).  Inspector A appears to have recognised that his investigation was incomplete (paragraph 25); yet when inspector B took over responsibility for the case, his understanding was that any relevant evidence that existed would have been collected by inspector A (paragraph 29).  If decisions on the handling of the case had been solely a matter for inspector A and inspector B, I would regard that discontinuity of understanding as to how matters had been left as an administrative fault sufficient to render the subsequent decisions unsound, in that, if inspector A envisaged further interviews after the inquest, that should have been a foremost consideration for inspector B at that point, even if on further consideration he decided on a different course (as it seems likely he would have done in the light of his experience at the inquest and his views on the case generally – paragraphs 7 and 34).  However, in the event the decisions on the case were ultimately the responsibility of the principal inspector, who had discussed the case with inspector A (paragraph 33).  The principal inspector was disinclined to pursue prosecution of the safety director.  I therefore doubt that the apparently differing perspectives of inspector A and inspector B on the subject of collection of further evidence had any appreciable effect on the outcome.

44.	  The question remaining is whether the principal inspector should in 1998 or 1999 have instructed inspector A or inspector B to make further enquiries of the sort that were eventually made following Mrs X’s representations in 2000.  If it was incumbent upon HSE to exhaust every line of enquiry before coming to a decision, the answer would be “yes”.  However, I accept the head of operations’ point that inspectors have to make an informed judgment as to whether a possible line of enquiry will prove fruitful (paragraph 32).  The principal inspector considered that there was a case to be made against the company in terms of inadequate safety measures relating to the method of constructing the stop-lock (paragraph 7).  However, he recognised that that case would be vulnerable to the argument that the men involved in the events that had led to the accident had acted irresponsibly.  Inspector A’s initial report (paragraph 5) and inspector B’s account of the inquest (paragraph 7) gave reasonable grounds for anticipating that the company would mount a vigorous defence (although in the event they did not).  I consider that, in the facts about the accident known to the principal inspector in 1998 and 1999, he had sufficient ground on which reasonably to form the conclusion that securing a conviction against the company was potentially difficult, and, following from that, that securing a conviction against an individual within the company would be more difficult still, to the degree that enquiries aimed at distinguishing the blameworthiness of individuals would be pointless – especially in the case of company directors who, their designated responsibilities notwithstanding, could be expected to be more remote from the detailed day to day task management issues on which HSE’s case against the company relied.  I recognise that a different conclusion might legitimately have been reached by a different individual on the same facts, but I do not find that reached by the principal inspector to have been so badly informed, divorced from the relevant circumstances, or inherently unreasonable, as to warrant my questioning its merits further, subject to one point.

45.	  That point relates to the nature of HSE’s consideration, within the context of a possible prosecution under section 37 of the Act, of the question of neglect.  The Director General has accepted that that aspect of the case was not examined exhaustively until Mrs X had made representations on the matter (paragraph 23); the head of operations has accepted that it might have been looked at more thoroughly at the outset, although he has pointed out the difficulty in doing so (paragraph 32).  Inspector A (paragraph 26), inspector B (paragraph 34) and the principal inspector (paragraph 33) evidently adopted a narrower interpretation of neglect for the purposes of their investigations generally than the one that they have since adopted in the present case, apparently by way of an exception to their existing policy in response to the force of Mrs X’s representations and the concerns she expressed about HSE’s handling of the investigation.  Their general position appears to have derived from a perception that investigation to the extent demanded by a broader interpretation would not be cost-effective, or practicable within existing resources.  HSE are entitled, while considering each case individually on its merits, to do so in the context of policies aimed at ensuring that they make the most effective use of inevitably limited resources.  Nevertheless, the approach to neglect described by the inspectors involved in Mr X’s case has since been accepted by HSE to have been, in the circumstances, less than ideal.  I welcome the Director General’s assurance that lessons learnt from the case will contribute to HSE’s strategic review (paragraph 24).  However, that is of little consolation to Mrs X.

46.	  It is not possible in my view to reach a reliable conclusion, on the balance of probabilities, as to whether a different approach at the outset by the inspectors involved to their remit regarding the investigation of neglect would have produced a different outcome to the case. Mrs X has understandably found it difficult in the circumstances to be sufficiently assured that the appropriate measure of accountability for the accident that led to her husband’s death has been brought to bear.  Added to that has been the time, trouble and expense to which she has been put in having to pursue the matter, as well as progress on the case generally, with HSE.  I therefore recommended that HSE should offer Mrs X an ex gratia payment to meet such expenses as she and her representatives had reasonably incurred in pursuing the case from January to August 2000 inclusive, and add to that a consolatory element in recognition of the distressing effect of the shortcomings identified in this report.  The Director General replied that HSE would recompense Mrs X and her representatives for expenses shown to be reasonably incurred in pursuing the case from January to August 2000.  In recognition of any additional distress she had suffered in pursuing her concerns about the investigation, they offered to make an additional payment of £300.  I welcome that.  The Director General also asked me to pass on once again to Mrs X his sincere apologies on behalf of HSE and all the staff involved; I now do so through this report.

Conclusion
47.	  There were delays, in part justifiable, in part not, in HSE’s investigation into the accident that caused Mr X’s death.  Those were exacerbated by poor communication by HSE with Mrs X about progress.  The decisions taken by HSE as to the handling of the investigation, in particular as regards enquiries aimed at distinguishing the culpability of individuals, were for the most part adequately grounded in an understanding of the relevant circumstances, although the extent to which they initially pursued the question of possible neglect on the part of company directors was less than ideal.  HSE have apologised to Mrs X for their shortcomings; agreed to reimburse consequent expenses; and agreed to offer an additional payment of £300 in recognition of the distress caused.  They have assured me that lessons have been learned from the case about liaison with the victims of accidents and their relatives, and that other lessons, relating to the issue of the personal responsibility of company directors for health and safety matters, will contribute to a strategic review.  I regard all that as a satisfactory response to Mrs X’s complaint.

     June 2001	Simon MacCulloch
	Investigation Manager
	duly authorised under section 3(2) of the
	Parliamentary Commissioner Act 1967

ANNEX

STATUTORY AND ADMINISTRATIVE BACKGROUND

1.	The Health and Safety at Work etc. Act 1974 places a duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees.  Employees must take reasonable care for their own health and safety and that of other persons who may be affected by their acts or omissions at work, and co-operate with their employers to enable them to comply with statutory requirements.  Section 37 provides that, where an offence under the Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

2.	The Act provides for the appointment of inspectors to carry it into effect.  Section 20 outlines inspectors’ powers.  Subsection (2)(j) requires any person whom an inspector has reasonable cause to believe to be able to give any information relevant to an investigation to answer such questions as the inspector thinks fit to ask.  Subsection (7) says that no answer given by a person in pursuance of that requirement shall be admissible in evidence against that person in any proceedings.

3.	The Police and Criminal Evidence Act 1984 requires the Secretary of State to issue codes of practice in connection with the questioning of persons by police officers. Section 67(9) requires persons other than police officers who are charged with the duty of investigating offences or charging offenders to have regard to any relevant provisions of the codes.

4.	The Construction (Design and Management) Regulations 1994 impose requirements on various parties in the planning and execution of construction work to ensure that health and safety considerations are taken into account at each stage.  For example, a principal contractor must not arrange for a sub-contractor to carry out construction work unless satisfied that the sub-contractor is competent to do so, in terms of compliance with the relevant statutory provisions, and that the sub-contractor will allocate adequate resources to enable such compliance.

5.	HSE are responsible for enforcing health and safety law.  The Health and Safety Commission’s Enforcement Policy Statement sets out the approach to be followed.  It says that the Commission expect HSE to consider prosecution where it is appropriate to draw general attention to the need for compliance with the law; where there is judged to have been potential for considerable harm arising from the breach; or where the gravity of the offence, taken together with the general record and approach of the offender, warrants it.  Subject to the above, individuals, including company directors and managers, should be recommended for prosecution if a conviction is warranted and can be secured.  Where there has been a breach leading to a work-related death, HSE need to consider whether the circumstances might justify a charge of manslaughter, and liaise with the police, the Coroner and the Crown Prosecution Service.  If the police or the Crown Prosecution Service decide not to pursue a manslaughter case, HSE should prosecute a health and safety case if appropriate.

6.	The HSE Enforcement Handbook provides legal advice to inspectors on enforcement practice, and sets out HSE operational policy on legal matters.  Chapter 2 deals with collecting evidence.  It says that if an inspector suspects that an offence has been committed, he will need sufficient evidence to prove each element which the prosecution is required to prove, and to rebut any expected defence.  The order in which evidence is collected can be very important.  If expert evidence is necessary, the inspector should involve the expert from an early stage.  The inspector should interview workers before supervisors and members of management.  Workers are those with knowledge of the incident which gave rise to the investigation.  They should also deal with matters related to the degree of shortcoming, for example their knowledge of the risk and ability to avoid the risk (training, instructions, supervision etc.).  When the inspector has obtained information from workers, he should obtain any relevant documents from the defendants.  He will then need to consider the question of blame, which will involve consideration of the law, codes of practice and guidance, trade journals and the like.  Statements should then be taken from lower level management, such as supervisors, who may be able to describe the system of work and steps taken to ensure safety.  The inspector should then go back to workers to ask whether they knew of the system of work described, and to expert witnesses to ask what the system should have been.  He should go finally to directors who are able to make admissions in relation to their own or the company’s liability, put to them what the management have said, and ask whether they will admit that.  The inspector should first seek voluntary statements from directors, because statements taken under section 20 of the Act (paragraph 2) cannot be used against them.  Where the evidence of a director is crucial in a prosecution of a company and the director is reluctant to make a voluntary statement, a statement should be taken under section 20.  The main purpose of obtaining a section 20 statement from a director – which should be obtained after the essential facts for the prosecution have been ascertained from other sources –is to discover facts which may be relevant to the decision whether to prosecute, or to discover facts which may be used in the company’s defence.  If a director will not give a voluntary statement, taking a section 20 statement may be useful because it could lead the inspector to further evidence which is admissible.

7.	Regarding voluntary statements, Chapter 2 says that the inspector should follow the provisions of the codes of practice made under the Police and Criminal Evidence Act (paragraph 3).  The inspector should explain that he is not using section 20 powers to require an answer.  Persons being interviewed in connection with offences have a right to consult privately with a solicitor, in person or by telephone.  Where there are grounds to suspect that a person being questioned has committed an offence, and where the answers or failure to answer may be given in evidence to a court in a prosecution, the person should be cautioned before questions or further questions about their suspected involvement in the offence are asked.  Grounds for suspicion are more than vague unsubstantiated feelings; they require some basis, but that can be less than evidence supportive of a prima facie case.  It is not only at structured interviews that the inspector will need to caution the suspect; where questions are designed to elicit an important and incriminating response, the person should be cautioned.

8.	Chapter 2 concludes that evidence of the previous safety record of the defendants may be relevant to the offence and will be relevant to the penalty.  The inspector should therefore collect any relevant evidence of previous convictions and previous enforcement action, whether formal or informal, and ensure that steps have been taken before trial to allow its use when admissible.

9.	Chapter 12 of the Handbook deals with work-related deaths.  It says that HSE are responsible for making adequate arrangements for the enforcement of health and safety legislation, with a view to securing the health, safety and welfare of workers, and protecting others, principally the public.  HSE cannot investigate or prosecute for general criminal offences, such as manslaughter. Where there is an indication that charges of manslaughter (corporate or individual) or another serious general criminal offence are likely, the police will conduct an investigation.  HSE will also investigate and will pass on information indicative of manslaughter to the police.  Where HSE decide to prosecute following an investigation involving a work-related death, the Coroner’s inquest will generally precede any prosecution.  The timing of the inquest is entirely for the Coroner.

10.	The HSE Legal Proceedings Code gives further guidance on prosecutions.  In a part dealing with proceedings against directors under section 37 of the Act (paragraph 1), the Code says that, where a body corporate has been convicted of an offence, it is not necessary to prove again the whole case against the body corporate in a subsequent prosecution of a director.  However, to prove an essential element in the case against the director, for example that the offence was committed with the consent or connivance, or was attributable to the neglect, of the director, it may be necessary to adduce similar evidence against the director to that which was adduced against the corporation.

11.	A decision by HSE to prosecute must also take account of the criteria set down in the Crown Prosecution Service’s Code for Crown Prosecutors.  That Code says that, in order to proceed to prosecution, a case must satisfy two tests.  First, there must be enough evidence to provide a realistic prospect of conviction against each defendant on each charge.  Secondly, the prosecution must be in the public interest.

12.	In April 1998 HSE published a protocol for liaison between HSE, the police and the Crown Prosecution Service in relation to work-related deaths.  It says that the police will attend the scene of a work-related death and make an initial assessment about whether the circumstances might justify a charge of manslaughter or other serious criminal offence.  As a general guide, the police will investigate where there is evidence or a suspicion of deliberate intent or gross negligence or recklessness on the part of an individual or company, rather than human error or carelessness.  Any decision to prosecute following a work-related death should be co-ordinated and follow liaison between the police, HSE and the Crown Prosecution Service; there should be no undue delay in reaching the decision.

13.	HSE’s leaflet “Advice and Information for Bereaved Families” aims to explain what HSE do following a fatal accident.  It says that the purpose of the HSE investigation is to find out what happened so that similar accidents can be prevented in the future.  If health and safety laws have been broken, the inspector will take the necessary action to enforce the laws and, if applicable, prosecute the person or company responsible.  In most cases the inspector will start an investigation within 24 hours of being notified of a death.  If an investigation is straightforward it could be completed in a few days or weeks.  Occasionally, complex investigations can take months and sometimes longer.  If the inspector finds evidence of manslaughter, that will be passed to the police, who will decide whether the evidence warrants a police investigation and referral to the Crown Prosecution Service.  The inspector will talk to the bereaved family, listen to any information they have, and answer their questions.  He will explain HSE’s involvement, give details of the investigation and its outcome, and explain what action is to be taken and the reasons.  If HSE decide to prosecute, they will normally announce that after the inquest.

14.	HSE’s leaflet “The Health and Safety Executive and you” says that HSE will reply to all enquiries or complaints, or let individuals know what they are doing about them, within ten working days. Straightforward enquiries will be answered immediately. Other, more complicated, enquiries will take longer.  HSE will keep individuals in touch with progress.