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HSE responds to UCATT release on construction deaths

19 February 2016

On 18/02/2016, construction union UCATT issued a press release that claimed there was an increase in prosecution delays and fall in convictions following construction deaths. UCATT cited information that was included in a recent Parliamentary Question response by HSE to Jarrow MP Stephen Hepburn.

HSE construction sector has responded to UCATT’s interpretation of the statistics below:

There has been no fall in conviction rates for HSE prosecutions. It actually rose from 92% in 2010/11 to 94% in 2014/15. 

The reduction referred to in the UCATT  statement (we think) relates to the numbers of fatalities in construction for which prosecutions have been approved.  The percentage of fatalities leading to a decision to prosecute in the same year will be lower in more recent years as a number of the more complex investigations will still be on-going or are progressing through the courts. The number of prosecution approvals should also be seen against an overall reduction in construction fatalities from over 100 in 2000/01 to 39(p) in 2014/15.

All workplace fatalities need to be investigated thoroughly to prevent a recurrence and so that where breaches of health and safety requirements are identified then those who have failed in their responsibilities are held to account which may include bringing cases before the courts in England and Wales, or recommending prosecution in Scotland.  HSE does not prosecute in every case and will take account of the evidential stage and the relevant public interest factors set down by the Code for Crown Prosecutors.  In Scotland the Procurator Fiscal decides whether to bring a prosecution.

A number of discrete stages will affect the pace at which a work-related death is investigated and legal proceedings pursued.  The police assume primacy for investigations initially and retain the case until negligent homicide offences have been identified or eliminated. In complex cases it can be several months before HSE is handed primacy.  Before HSE brings a prosecution it is normally necessary to await the outcome of a Coroner’s inquest.  Once a defendant has been charged it can take some time for the case to come to trial, particularly where it is defended and heard in the Crown Court.

Nevertheless, HSE and the other agencies involved in investigating workplace fatalities recognise the importance to victims of ensuring all stages of the investigation and prosecution process are concluded as quickly as possible.  The Work Related Deaths Protocol (WRDP) National Liaison Committee recently agreed that any decision to prosecute should be made within three years of the date of death, other than in exceptional circumstances.

As a result of the drive to reduce investigation time and conclude long running investigations, HSE has in recent years concluded several complex investigations. This has meant average time taken between an incident and a prosecution approval has increased in the most recent years, but other data provided in response to Parliamentary Questions shows that over the last 10-years, 23 percent of cases were approved for prosecution within a year of a fatality, 27 percent in the second year, and 30 percent  in the third.  Therefore 80 percent of HSE prosecutions were approved within the WRDP three-year period.  This percentage is still rising.

Note that there is an error in the UCATT release where it states that 30 per cent of cases did not reach the prosecution stage until between three to four years after a worker’s death.  The PQ responses showed that just 15 percent of cases took between three and four years to reach this stage.

The percentage of construction (Standard Industrial Classification, section F) fatalities resulting in at least one prosecution being approved to date in each of the last eight years is as follows:

Year Number of Fatalities in Construction reported to HSE Number of fatalities with approved prosecution action* Percentage*
2007/2008 74 38 51%
2008/2009 57 28 49%
2009/2010 44 20 45%
2010/2011 52 16 31%
2011/2012 49 22 45%
2012/2013 46 16 35%
2013/2014 47 15 32%
2014/2015 39p 7 18%
p – provisional

*Investigations of some recent and more complex incidents are continuing.

The data UCATT has used to incorrectly suggest the ‘fall in convictions’ is above.  This relates to prosecutions approved following fatals in any given year.  The number in the third column relates to the number in the second column, and not to fatals in previous years.  Therefore, in 2014/15 of the 39(p) fatals, we approved prosecutions in seven of those cases within the same year.  Therefore the observed % reduction in recent years is because of on-going (ie longer than one year) investigations.