The UK Ministry of Defence (MoD) has recently been issued with a Crown Censure after the death of a Royal Marine recruit. Crown bodies cannot be prosecuted for breaches of the law; however they may be censured in respect of offences which would have led to a prosecution. We spoke to HSE inspector Emma O’Hara about the case.
On 21 January 2020, 20-year-old Royal Marine recruit Ethan Jones was taking part in an exercise called ‘Final Thrust’ – essentially the last stage of a recruit’s training before they receive the coveted green beret. The exercise involved disembarking onto a beach from a landing craft. But rather than entering shallow water, Ethan and a number of other recruits ended up being submerged in deep water. While the other recruits were rescued from the water, Ethan was found floating face down. He sadly died three days later in hospital.
We spoke with HSE inspector Emma O’Hara about the investigation into the incident.
'Ethan’s death prompted a joint investigation between us at the HSE and Devon and Cornwall Police. Although there are additional sensitivities and security implications, the investigation of military incidents follows a similar format to other work-related deaths,' said Emma.
'One of the main differences is the involvement of the Defence Accident Investigation Board (DAIB) – who undertake a parallel enquiry with the objective of understand what occurred and making recommendations to reduce the likelihood of a similar future occurrence. The working arrangements follow formal protocols and there is a published memorandum of understanding with the MoD.'
Despite this being a military matter, the results of the investigation may be surprisingly, and sadly, familiar. It became apparent that the key shortfalls leading to Ethan’s death were in respect of failings of planning and risk assessment.
'The risk assessment was not suitable and sufficient in the sense that it didn’t cover the specific activity that was being undertaken at the time – the beach landing. There were overarching risk documents for the exercise as a whole but it hadn’t been broken down into the individual components. The act of getting out and leaving the landing craft and wading to shore was seen as a transitionary element of the exercise, and therefore it wasn’t covered in the risk assessment for travelling on a landing craft or the risk assessment for the actual exercise,' Emma explained.
'Also, the risk assessment had been done quite far in advance and was quite generic. It was lacking in specific detail about the specific cohort of recruits involved in the exercise, the weather, or the conditions on the beach at the time. It also did not set out the specific detail of the use and removal of life jackets.
'The investigation highlighted that conditions on the beach seemed to change as the exercise progressed: the first recruits who went in had water at thigh height, and then the water gradually got deeper and deeper until Ethan and some others were fully submerged.
'As the exercise was undertaken at night with no lights and limited communication, it wasn’t apparent that anything was going wrong until a couple of the recruits had to be pulled from the water.
“So there were a number of issues that contributed to the incident.'
Decision to censure
The MoD is a Crown body that cannot be prosecuted in the same way as a private company. However, it is still an employer who is subject to the same health and safety laws as any other employer. The MoD recognises its duty to comply with the Health and Safety at Work Act and the relevant statutory provisions. When these are broken, the HSE is able to formally record the failing by issuing a Crown Censure.
'The HSE recognises that realistic training is essential to properly prepare military personnel for combat. HSE also fully recognises the importance of properly managed realistic training as an essential element in building and maintaining competence,' Emma said.
'The HSE equally recognises that there will still be a risk of injury even when properly planned and managed realistic training is delivered in practice. However, the HSE expects the military to follow key principles in order to comply with its criminal law duties under the Health and Safety at Work Act 1974 during these training activities.
A risk assessment should be a live relevant document that helps you to find the flaws in what you are doing and identify additional measures that could be taken
'When it comes to investigating, we go through the same process as we would with any other incident. So we still have to gather evidence and follow lines of enquiry and make sure that it is in an admissible form, as it would be in any other case. Any enforcement action against the MoD follows the standard approval process. Where the Approval Officer is satisfied that, but for Crown immunity, the evidence of a Crown body's failure to comply with health and safety law would have been sufficient to provide a realistic prospect of securing a conviction, a censure may be administered to formally record the decision.
'It’s largely an administrative process – there’s no fine or custodial sentence or criminal record as there might be in a criminal case. However, the actual hearing is a formal process similar to a court case. The agreed facts are set out in a hearing attended by relevant senior officers. The outcome of the hearing is published on the HSE website.'
In this case, the proceedings were held at RNAS Yeovilton and were attended by senior officers of the Royal Navy.
'On this occasion, Ethan’s family was there to witness the hearing to understand the findings of the investigation, to witness the MoD accept the censure and also witness the MoD’s response by setting out the actions they have taken to prevent any similar future occurrence.'
Although this case might be quite unlike the sorts of situations that most IOSH members will face in civilian life, Emma said there are still some important elements and lessons that can be drawn from it.
'Essentially, just think about what you’re doing. It’s all down to planning and risk assessment. In this case, these exercises were being done every two weeks, and that might have had a bearing on what happened: if an activity is something you are doing regularly, that probably makes it even more important that that you keep it under review,' warned Emma.
'I’d always suggest getting employees involved in the risk assessment process because they’re the ones who do the job and see the risks.
'Most importantly, a risk assessment shouldn’t be just a sheet of paper. Don’t expect things to go as planned – have a contingency. A risk assessment should be a live relevant document that helps you to find the flaws in what you are doing and identify additional measures that could be taken.'
To read other IOSH magazine stories involving organisations receiving Crown Censures click here.