Thematic report on Health and Safety Division

9. The Law Officers have been active in promoting greater specialisation in COPFS. The current Lord Advocate prosecuted the successful case against Transco in 2005 (following the deaths of 4 people) with a fine of £15 million being imposed and was involved in the prosecution of ICL Plastics in 2007 (following the deaths of 9 people).

10. His experience of these cases highlighted a need he felt for specialisation to be brought to health and safety cases leading to the creation of the Health and Safety Division of Crown Office in 2009.

11. This new division was to investigate and prosecute all cases reported to the Procurator Fiscal by the Health and Safety Executive and other agencies. It was to consist of experienced lawyers working in 3 teams, Scotland North, Scotland East and Scotland West. These teams were to work closely with Health and Safety Executive staff in their respective areas.

12. At the time of writing this report the Health and Safety Executive reported an increase of persons killed at work in Scotland from 14 to 20 over a 12 month period. This highlights the need for these cases to be carefully investigated and where necessary prosecuted.

13. In his foreword to the 2009-2012 Crown Office Strategic Plan the then Crown Agent said "We will continue to develop specialist sexual offences teams and we will review our approach to other types of cases of a specialist nature including health and safety cases". The creation of the specialist Health and Safety Division featured in the published plan stating "lawyers who led the investigation into the ICL Plastics factory explosion in Maryhill in 2004 now head up our Health and Safety Division. Their expertise can be passed onto others to create a well trained specialist team".

14. The Law Officers have made clear their priorities and strategy for the Crown Office and Procurator Fiscal Service to include "clearer signposting - senior legal staff leading a particular topic such as health and safety cases will be designated as Procurators Fiscal for that particular segment of work to highlight their role to the public and criminal justice partners and ensure clearer understanding of the broad range of Crown Office and Procurator Fiscal Service work".

15. More recently in the 2012-2015 Strategic Plan the Law Officers listed their priorities for the Crown Office and Procurator Fiscal Service. These included investigation of fatalities with specialist staff from the Scottish Fatalities Investigation Unit (SFIU) and those in the associated Health and Safety Division to continue to bring particular expertise to the investigation of such cases and, where necessary, to ensure the best possible presentation of the facts in court during Fatal Accident Inquiries (FAIs) or prosecutions.

16. This approach to specialisation is mirrored on the defence side with several large private firms having well established specialist health and safety lawyers engaged in this work. One firm informed us that they had 27 lawyers working in this field (although on a UK-wide basis).

17. There is also a UK Association of Health and Safety Lawyers including Scottish members. The Law Society of Scotland currently has recognised 28 specialisms with lists of accredited members.

18. It was clear to us that health and safety crime has increasingly become a focus of public and political concern. Practitioners across many agencies had already recognised this and all looked forward to the results which would flow from this fresh specialist approach. Accordingly the view of many, from reporting agencies and from defence solicitors practising in this field, was that the creation of HSD was a useful and positive change.

19. The profile of health and safety crime has been raised since HSD was created in 2009. Very few cases proceed to trial and there is now a culture of cases concluding in good pleas with both charges and narratives being agreed in advance between the Crown and defence and the reporting body also being consulted for views during the negotiation process. Sheriffs are given copies of an agreed narrative of events before the plea is tendered, along with financial statements and recent case law, all designed to assist them in their decision making.

20. This is all positive change.

21. An additional positive for the Reporting Agencies is the easy access to advice from the Head of the Unit at the earliest possible stage of investigation. All agencies voiced their positive view of this. However, the volume of time and energy devoted to this stage means that little time is left for supervision of the case load once cases are reported to the unit.

22. The major issue which taxed all those we spoke to was the length of time taken for cases routinely to reach conclusion. This issue should have been tackled by those in charge of the unit. Although staff turnover and possibly resource issues may have led to delays we found other reasons. We felt there should be a better system of initial triage of cases namely;

• early identification of cases which could be dealt with quickly on summary complaint
• early identification of those cases which require minimal additional work before proceeding to court and
• early identification of those cases where pleas should be pressed aggressively rather than awaited passively.

23. Delegation of responsibility to the Principal Deputes in post is required to ensure throughput is not delayed by awaiting decisions from one individual with a large burden of work. In addition to speeding up the existing process this would empower these legal managers and subsequently the deputes within the unit to carry out their duties with ever greater confidence. This would have the effect of retaining staff for longer periods enhancing their knowledge of Health and Safety Law and providing greater job satisfaction for them.

24. Legal managers of this grade elsewhere in COPFS routinely make the decisions about forum, pleas and charges as well as managing teams of lawyers and precognition officers and supervising their precognitions.