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Published 23 January 2020
In June 2019 the Chief Coroner for England and Wales issued a new Memorandum of Understanding (“MoU”) with the Health and Safety Executive (“HSE”). We take a look at what changed and how the changes are being adopted.
Coroners and the HSE have different, yet overlapping, functions following a work-related death. The HSE’s function is to investigate the actions of the duty-holders, gather evidence, interview witness and take enforcement action against those they deem not to have discharged their duties under health and safety legislation. The statutory responsibility for ascertaining the Deceased’s identity together with when, where and how they came to their death, remains with the Coroner.
The MoU aims to define the relationship between the Coroner and HSE by promoting consistency, setting out the level of cooperation the Coroner expects from the HSE and promoting the wider public interest of holding effective Inquests, without prejudicing ongoing investigations or criminal proceedings.
We set out below our comments on some of the key changes.
In circumstances where the HSE have commenced an investigation (and retain primacy), the HSE will now provide the Coroner with an initial report within four months of investigation commencement (and quarterly thereafter). The initial report must contain a summary of the HSE’s investigation to date and the final report must be full and factual, summarising and providing the evidence in support.
The Coroner should usually consider suspending the coronial investigation pending completion of the criminal investigation.
Where the HSE has completed its investigation, it will consider whether it is appropriate to commence criminal proceedings for breach of health and safety legislation at that stage, or await the result of the Coroner’s inquest.
Coroners are to give proper consideration to reading out the report of a Specialist Inspector, as opposed to calling them.
The effectiveness of the 2019 MoU was always going to be largely dependent on its application by individual Coroners. From a regulatory viewpoint, the possibility of more efficient HSE investigations and speedier enforcement decisions was attractive. But there was no guarantee of such and six-months on, little has changed in reality.
The coming year will be the real test for the MoU. Concerns about the increased pressure on the HSE to report to the Coroner regularly, resulting in more aggressive investigations, may prove to be unfounded. Instead, it is hoped that the MoU will result in greater consistency around the structure, content and timings of preliminary hearings, reducing the number of full Inquests taking place and ultimately providing for more efficient and effective Inquests. This benefits all parties, none more so than the families of the Deceased. No doubt this was the Chief Coroner’s intention.
Ultimately, all of those involved in inquests can shape how the MoU is applied given they can make representations about their application, subject to the Coroner’s discretion. But with the MoU set to be reviewed again after five years (or more frequently as required) these areas are likely to be debated for many years to come.
For more information or advice on this Memorandum of Understanding, please contact one of our experts in our regulatory team.
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