Thematic report on Health and Safety Division

25. The aim of the Health and Safety Division as stated by the Solicitor General when he launched it was to investigate and prosecute all health and safety cases reported to the Procurator Fiscal by the Health and Safety Executive, local authorities and other agencies who report health and safety cases to COPFS. They also investigate and lead evidence in Fatal Accident Inquiries (FAIs) held in all health and safety related deaths which require specialist input.

26. The new Division was set up to provide advice, support and direction from the very earliest stages of investigations.

27. The Health and Safety Division was also to have a greater concentration of expertise, increased specialist input at the start of an investigation and enhanced liaison with stakeholders in this area of investigation and prosecution. The Division was also to work in close consultation with dedicated senior Crown Counsel (CC).

28. Ultimately this is to help to create and maintain safer workplaces and environments across Scotland by identifying unlawful practices that put safety at risk in our communities and bringing to justice those who fail to discharge their obligations under health and safety law.

29. The Health and Safety Division consists of three units as had been envisioned, North, East and West, working closely with HSE, local authorities and other agencies who report Health and Safety cases to COPFS.

Protocols

30. It was agreed that, once HSD was established, all new cases would be reported to the unit. All previously reported summary cases were to remain with the local Procurator Fiscal Offices with advice and assistance from HSD as required. All solemn cases were to be transferred to HSD no matter their stage unless agreed otherwise.

31. We were directed to various protocols relating to Health and Safety. Many of them related to death at work and to protocols for operational work and co‑operation and primacy between criminal justice partners in the investigation of such deaths.

32. The Protocols which we were able to find are as follows:

• Work related Deaths protocol which originated in 2008. The signatories being Association of Chief Police Officers in Scotland (ACPOS), British Transport Police (BTP), COPFS and HSE.
• Accompanying Guidance notes from November 2008, updated 14 October 2011.
• Memorandum of Understanding between Air Accidents Investigation Branch (AAIB), Marine Accident Investigation Branch (MAIB), COPFS and ACPOS for the investigation of air and marine accidents and incidents in Scotland, dated 11 January 2008.
• Memorandum of Understanding between HSE, Maritime and Coastguard Agency (MCA) and Marine Investigation Branch (MAIB) dated July 2009 for the health and safety enforcement activities etc at the water margin and offshore.
• ACPOS Manual of Guidance for Senior Investigating Officers on Corporate Manslaughter and Corporate Homicide Act 2007, dated 2012.
• Protocol between COPFS and HSE for submission, processing and monitoring of prosecution reports relating to Health and Safety at Work etc, Act 1974 offences. This protocol is undated but refers to COPFS Areas and specialist deputes within them. It precedes both the formation of HSD in 2009 or the anticipation of it in 2008. We could not find any more recent version.

33. We have been unable to find any written protocol or remit for the Division specifically setting out the parameters upon which their work is based.

34. This has caused difficulties for us in identifying or determining the extent of their role. This gap continues to cause problems for others both internally and externally, for non-HSD deputes, deputes in Scottish Fatalities Investigation Unit (SFIU) and for criminal justice partners. We have seen evidence of cases which have been under discussion for lengthy periods where ownership of the cases within COPFS lacks clarity in the role of HSD. This lack of clarity can cause delay.

35. There is a surprising omission of any reference to HSD internally in COPFS in either the Case Marking Guidelines or in the Knowledge Bank (both internal guidance for staff). These legal sources are available to all staff through the Intranet. Non-HSD deputes would naturally refer to either or both of them as a first port of call for guidance when faced with an unusual or complex type of case to mark. A case involving Health and Safety at Work would generally be considered by most deputes to be unusual and complex. There is reference in both above sources to health and safety offences but neither mention the existence of HSD or suggest that deputes should make enquiries there to determine if the case in question should be passed to HSD to be dealt with there or to seek assistance from this specialist section on a complex area of the law. This has led to at least one case being marked by a non-HSD depute, then prosecuted locally and dealt with in court by way of a plea of guilty. HSD were unaware of the existence of this case until after sentence was passed.

36. Although aware of this problem HSD has not instigated an update to the internal legal guidance to ensure there are pointers to all deputes so this error does not recur.

37. There are protocols in place regarding the manner of investigation of work related deaths but we could find none for any other type of health and safety criminal investigation. More crucially there is currently no protocol or any type of agreement with the former local Deaths Units now SFIU (the national deaths unit). The work of HSD and SFIU crosses over on many occasions, as often deaths do occur at work, and roughly a quarter of the cases dealt with by HSD involve fatalities. Some deaths can be dealt with entirely by SFIU, some by HSD, some by both. There is currently no clarity about which is which. There is a general consensus that all cases are looked at on a "case by case" basis. Deputes find it impossible to predict how cases will be dealt with as there are no guidelines. There is no certainty which cases will be retained by SFIU and which passed to HSD.

38. Frequently the police appear to be unaware that a death at work should be reported to HSE for investigation as well as SFIU. If SFIU deputes are unaware of this they neglect to instruct the police to alert HSE to the incident and valuable time is lost. If HSD are made aware of the incident their first action is usually to alert HSE to initiate investigation by these experts. Routinely police simply refer deaths to SFIU. As a result the reporting agency and HSD are unaware of their existence. The area where this is most often incorrectly identified is where a death arises from a fall in a care home.

39. Unfortunately, sometimes, even when HSD do take over cases from SFIU, no‑one deals with some aspects of work, each section thinking the other is dealing with it. Even after some years families may still not have the benefit of the final conclusion regarding the cause of death.

40. We did become aware during our inspection process that talks were now ongoing between SFIU and HSD about agreeing a protocol of sorts. However this has not yet, to our knowledge, borne fruit.

RECOMMENDATION 1

We recommend that a written remit of HSD work is prepared and promoted throughout COPFS by being made available through the "Intranet" and also to the reporting agencies. This should clarify which cases will be dealt with by HSD, which are dealt with by SFIU, which are to remain within the Federations for prosecution and how agreement about these issues are to be dealt with in "borderline cases". In particular this protocol should agree the division of duties in relation to deaths so all tasks are covered.

RECOMMENDATION 2

We recommend that the case marking guidelines, the knowledge bank and any other reference or guidance should be amended to direct appropriate cases to HSD. This should be clearly cross referenced to the remit recommended above. Instruction and guidance about how these cases should be marked should also be included.