Thematic report on Health and Safety Division

41. During the course of our inspection it was drawn to our attention that an internal "Process Review" was carried out during August/September 2012. We discussed the findings with the reviewer and note that those findings echo our own.

42. There are desk instructions for administrative staff, adapted for use in HSD from general instructions, but these relate purely to the processes of preparing and serving indictments and complaints. Much contained in the instructions is irrelevant to the work of HSD. There is no explanation or definition of roles for any staff. This is a basic step which would enable new members of staff to learn their job more quickly and provide clarity for current staff. Because little use is made of SOS (Standard Office System) and FOS (Future Office System) deputes and precognoscers send and receive emails from their own accounts. This correspondence is rarely imported into SOS so is not available for monitoring work or indeed to enable a full handover of case work. Reports are routinely prepared in Word, stored in personal documents and not imported into SOS. This means there is not always an audit trail of what work has been carried out and when or what has been sent for checking, countersigning or for Crown Counsel's Instructions (CCI) or when. Administrative staff have voiced concerns they are not "kept in the loop" about progress of work by legal staff.

RECOMMENDATION 3

We recommend that full desk instructions are prepared and issued for all administrative posts.

43. Where a death has occurred at work there is a mandatory obligation to hold an FAI. However, where there has been a prosecution and all of the facts relating to the death are covered in it, it would appear to be unnecessary to hold a Fatal Accident Inquiry, if Crown Counsel agree. A new approach is being taken and instruction is being sought at the time the case is reported to Crown Counsel in connection with a plea or prosecution to cover all salient facts in one hearing to avoid the need for an FAI. This system works well suiting both the relatives who do not wish to have a second round of court appearances and also the courts by avoiding overloading. This is a new and welcome development.

44. There does not appear to be any close monitoring of older cases where the prosecution is complete and there had been no such CCI about dispensing with an FAI. There seems to have been sporadic reporting of some cases post disposal seeking instructions to dispense with the FAI. However, there is no system in place to carry out this process or to follow up any request. Some cases sat with the unit for periods of two years before CCI were obtained in relation to FAIs.

Electronic reporting

45. Work should come in by electronic report from outside agencies such as HSE, Local Authorities, Maritime and Coastguard Agency and Office of Rail Regulation (ORR) among others. We have been unable to find a written list of all agencies who report to HSD. In the past there have been problems with some agencies delivering hard copy cases rather than sending them electronically. Maritime and Coastguard Agency is one such agency. During our investigations we were repeatedly informed that many of the smaller Local Authorities or reporting agencies reported very few cases in a year. They did not feel at all confident about how to format the report for the case and send it down the SRA (Specialist Reporting Agency) electronic link. All voiced their opinion that more training for them was required. Many other "outside" reporting agencies reported to us that they went to HSE for such assistance. HSE have a member of staff who sends all of their cases down the link and offered advice and assistance to those other less experienced reporting agencies. Although there had been some initial training when the SRA website was rolled out we regularly heard during out inspection that "refreshers" would be of huge benefit. Local Authorities paid for specific police training at Tulliallan in September 2012 in connection with report writing but the police were unable to provide training in the SRA web as they do not use it. There is some guidance which we found on the Scottish Government website which was of limited use and none on the COPFS website. (Information Systems Division (ISD) told us they thought there was some guidance available but to date we have not seen it). These comments do not only apply to HSD cases but also Department for Work and Pensions and other non-police reporting agencies.

RECOMMENDATION 4

We recommend that more training and guidance be provided to specialist agencies on how to send reports via the Specialist Reporting Agency (SRA) website to COPFS.

RECOMMENDATION 5

We recommend that all cases are reported electronically and that HSD decline to accept any not so submitted.

46. About a quarter of cases reported to HSD involve deaths. As a result, multiple reports are received for many individual cases. In a fatality, a "Death Report" would be submitted by the police within days. This would allow arrangements to be made for the post mortem and release of the body. The prosecution report might not come in until years later. The case might be reported by either the Local Authority or HSE and also by the police, so eventually there are three reports for the same case, all having a different reference number. There are also interim reports sent in by HSE every few months which are unnumbered and not recorded on the system as they do not come in electronically. They pre-date the final report which does come in electronically and is allocated a number. This makes it difficult to keep track of the case on the system since some work may be done under one number and other work under another. There are also documents available hard copy but not on the system. HSD have carried out work relating to the prosecution in some cases within the deaths report. This causes difficulty in monitoring cases and collating the work done. This could be simplified by "rolling up" these cases into one case number in FOS. In non-HSD work this is what happens when multiple cases are reported for prosecution of one accused and all are considered together often resulting in all charges being placed on the one complaint or indictment. If this is not possible for deaths cases, then clear cross references should be placed in each related case to the other associated cases.

RECOMMENDATION 6

We recommend that, where criminal cases are reported by multiple agencies, all reports for the incident should be rolled up in FOS to allow a single case reference number to be used and all case documents to be found within the one case reference in FOS, SOS and PROMIS.

Office code

47. HSD have an office code in FOS but this has not yet been activated. All work is submitted geographically and these cases until identified in some way as being HSD cases are treated as mainstream. This means that when health and safety cases are submitted electronically by agencies the cases are automatically sent to their geographical homes and into a FOS report tray for that place. HSD are not informed by FOS that any new case has come in which requires their attention. Steps have been taken by HSD to identify these cases and ISD currently run a computer programme every night. ISD send an email daily to HSD with this information. If a new case has come in HSD contacts the geographical office (which has become more difficult with the teething troubles in a move to Federation working) and asks them to re-allocate the case into the HSD FOS tray. This whole process relies heavily on manual input and is at risk if there is human error. To attempt to combat this we understand that HSE often inform administrative staff in HSD that they have submitted a report. This also alerts HSD to locate the electronic report. None of these "workarounds" with attendant capacity for missing cases should be necessary. We have discussed this with ISD who know of no reason why the cases cannot come through SRA straight to an office code called HSD. The reporting agency could choose the office as HSD rather than the local office. This would mean cases would come straight to HSD and none would be missed.

RECOMMENDATION 7

We recommend that HSD use their existing FOS report tray and office code. This would allow cases identified as being for HSD to automatically flow.

Charge codes

48. There appears to be no complete list of charge codes which relate to the charges which HSD take. This is perhaps expected since there is no recognised written remit for HSD. In order to allow Oracle mentioned above to work the administrative manager and ISD liaise on what charges should be on this list. Both parties have suspicions that this list is not exhaustive and during our inspection we have found two examples of charges which we know HSD do take where the code is not registered as HSD. The most surprising of these is the charge of Corporate Homicide (CH). The other example relates to Work at Height Regulations 2005. Cases involving these charges feature regularly in HSD cases. (No other Division within COPFS is likely ever to deal with these charges.) This omission is a concern. A case involving a breach of this regulation came in to one office report tray in FOS and was not picked up by Oracle since the charge code was not recognised as an HSD one. This meant that HSD were unaware of the existence of the case. The case was marked as a mainstream case in the local office and put into a Sheriff Summary court. HSD only became aware of the case after it had appeared in court.

49. Surprisingly the charge codes have still not since been amended to include this type of charge so there is a very real risk that the same situation could re‑occur. It is possible for a case marker who is in a mainstream local office and not in HSD to come across such a case in the local FOS tray since it would go in there automatically. They could mark it since a) there is no protocol available to suggest these cases are to be taken by HSD, b) deputes generally consult the case marking guidelines available on the internal intranet for assistance and technical or legal advice but these guidelines make no reference to the existence of the HSD, c) deputes also frequently consult the Knowledge Bank also available on the internal intranet for assistance and technical or legal advice but the Knowledge Bank makes no reference to the existence of the HSD.

50. Unless the marking depute has personal knowledge of HSD they could remain in ignorance of the fact that such a case MAY or ought to be referred to HSD for investigation or guidance and assistance. HSD is not mentioned in any guidance available to deputes.

RECOMMENDATION 8

We recommend that an exhaustive list of charge codes should be prepared and entered in to FOS to ensure all appropriate cases go to HSD and that that list should be regularly reviewed and updated.

FOS marking

51. The first stage in all mainstream cases is to decide what the charges and forum for the case will be. This decision is immediately recorded in FOS. This record then acts as a trigger for management information and case tracking. In HSD cases are recorded in the FOS system by the administrative manager as soon as they come in to the tray as "defer possible petition". This is not a real and measurable marking. It is intended as a holding marking, usually used while further information is sought. Cases should be re-marked within at most a few months. We found cases in HSD with this marking years later. In fact, in order to keep the records similar to the mainstream system, as soon as a decision is made about forum, the marking should be updated. Since HSD do not place accused on petition the marking should go straight to precognition. These updates bring the cases into line in PROMIS and allow them to be monitored within the National Database via the Management Information Book (MI Book). At every stage FOS and PROMIS should be updated to indicate that the case has been reported to Crown Office, then updated by Crown Office to show that CCI have been given. Thereafter a service record should be entered in PROMIS once an indictment is served. HSD cases do not have all of these entries in the database in every case. On searching the data we have found that they are rarely marked in FOS beyond that initial marking. We assume this is because these cases usually proceed straight to indictment, without first going on petition. Often the accused are companies and they are generally not placed on petition.

RECOMMENDATION 9

We recommend that, as soon as forum is decided upon, the case should be re‑marked in FOS to bring it under the umbrella of MI Book and to allow central and local monitoring of all work in HSD. Every stage of the life of the case should be recorded within the database.

Spreadsheets

52. HSD has developed its own system for monitoring the workload. They have created a system of spreadsheets which are kept on their own shared drive, accessible to all within the unit. Only the administrative manager is authorised to make entries into it. The Division has had to do this as they are unable to use the COPFS database. They are unable to use PROMIS and the National Database which is used by all other departments as they effectively bypass the normal system -

• because they do not mark cases within FOS and there is no system record of their work
• because there is no office charge code which the MI book can use as a filter to obtain this information

53. The manager in the unit who operates these spreadsheets has had no training in the set up, maintenance or use of said spreadsheets. This is an area of learning "as you go" and by asking others both within and outside the service for assistance. Many of the spreadsheets which have been set up have fallen into disuse but when we began our inspection were still there. Spreadsheets rely heavily on there being no human error and there appears to be no way to cross check from the National Database. On our inspection we found examples of human error in that -

• the date of incident in one case had erroneously been noted as the date of birth of the deceased;
• cases which had been closed were still on the "live" spreadsheet;
• cases which had been allocated still featured as unallocated.

54. While the spreadsheet can be a useful tool for staff themselves to see at a glance what cases they have and can be useful for the fair allocation of new work it should not be the only system available to monitor performance, provide statistics, either for monthly returns, provision of information for FOI requests, or any other reason. At the time of inspection the Management Information Book was unable to provide information to HSD for a variety of reasons such as there was an incomplete list of charge codes, no use of Team ID and accordingly no page made ready for HSD. On enquiry with Strategy and Delivery Division (SDD) it has proved to be quite possible to do this and they have now contacted HSD with a view to setting this up to allow them to better monitor and manage their work.

RECOMMENDATION 10

We recommend that use of spreadsheets as sole records ceases and that use is made of existing national systems (PROMIS) to record, monitor and manage the work. A decision should be made about which spreadsheets are to be used for internal purposes and all others should be deleted from the shared drive to avoid confusion. Thereafter that remaining spreadsheet should be kept up to date and accurate.

RECOMMENDATION 11

We recommend training for the administrative manager to allow more effective set up and work with spreadsheets, if spreadsheets are still to be used for internal use.

55. Meantime any information about data which HSD seek either for internal use or to answer any external questions has to be sought manually and counted from their spreadsheets. They are uncertain of the accuracy of these spreadsheets and the information contained therein. On the shared drive are 5 spreadsheets but most are historical and are currently completely or partly defunct. Old cases are removed from the "Main spreadsheet" and placed on a "closed cases spreadsheet" so do not appear in the "Main spreadsheet". We were told that in reality only the "Main spreadsheet" is in use.

56. The HSD 'Main' spreadsheet (as at 04/07/12) provided details of 130 cases of which 110 cases had been allocated (26 involving fatalities) and 20 unallocated (5 involving fatalities). This spreadsheet does not provide details of the current position of the case. It was noted that 4 of the cases on the spreadsheet were yet to be reported.

57. HSD main spreadsheet at 4 July 2012^[1]:

58. If use of spreadsheets is to be continued one system should be used for all to provide consistency.

59. HSD also use a document called the 'Case Load' Document. Each depute or precognoscer is asked to complete information about their cases. The HSD 'Case Load' document is used to keep a note of progress and update the Solicitor General at regular meetings (roughly every 6 weeks). At 30 August 2012 this document had progress reports relating to 76 cases. There were no updates from 3 members of staff, 2 of whom were leaving/had left the unit. One would expect to see updates for all cases that have been allocated even if there has been no progress since last report. There is a clear flaw in the total accuracy of this document as it is left to individual members of staff to complete information if they are available. If the members of staff are not available or simply fail to complete the document then no information is provided.

60. It was noted that 8 cases referred to in the 'Case Load' document were not recorded on the 'Main' HSD spreadsheet. On checking further it was found that all 8 were recorded on the HSD 'Deaths' spreadsheet and a further check of the 'Closed Cases' revealed that 6 of them were closed but waiting instructions re FAIs. The other two were still ongoing. The 'Main' spreadsheet is the first point of reference and from which information is collected and provided. All ongoing cases should be recorded on this spreadsheet if its use is to continue.

61. The 'Case Load' document also showed that 5 of the 20 cases recorded as unallocated in the 'Main' spreadsheet have been worked on. Four of these cases involved fatalities. Therefore, looking at the spreadsheet, it appears that cases have been unallocated when in fact some initial work has been carried out.

62. Further, it can be seen from comparing the spreadsheets with the 'Case Load' document, 3 cases were marked as allocated to someone other than the person who had been working on them. One case is not recorded on the spreadsheets at all, another is a defence appeal where the case has been moved to the HSD 'closed' spreadsheet but has no note of an appeal on it (the case is still active on PROMIS) and lastly one is closed but still on the 'Main' spreadsheet.

Conclusions on data:

63. Our findings show that the HSD 'Main' spreadsheet is not completely up to date and does not record every case. Given that the 'Main' spreadsheet is the first point of reference for HSD cases efforts should be made to ensure that all cases are recorded there and that it is updated regularly so that accurate and up to date information can be given. It may also be useful to add other columns to show the current position of cases. HSD staff indicated that they were not confident that the spreadsheet is accurate and that information passed on is correct.

64. The 'Case Load' document does not provide progress reports for all cases. This document is a useful tool to monitor progress (or lack thereof) and for local management of cases and staff. It would also be useful for new staff who are re-allocated work as it would provide brief notes on what has been happening with the case. The format of the "case load" document currently does not record date of receipt of report. It would be useful to provide management with this information for each of the cases so they can see at a glance the age profile of cases and how long they are taking to process.

RECOMMENDATION 12

We recommend that if the 'Case Load' document is to be retained it must contain ALL relevant cases, updated at regular intervals for it to be really meaningful. The case load document should be available for all and be on the shared drive.

Disclosure

65. Disclosure of statements and productions is done at a very early stage. It appears in the main that as soon as a case is reported electronically a request is sent for hard copy of the file and all documents. Most, but not all, statements seem to come electronically. No documentary productions are sent electronically. Hard copy is requested and received very quickly. At the start of our inspection, due to reduced administrative resources, all case papers were coming to Glasgow for disclosure. A depute unconnected with the case looks at these and redacts it all hard copy. Administrative staff then copy this on to a pen drive. The pen drive is then delivered to a COPFS office near to the defence solicitor for them to collect. This is carried out very speedily and the defence have as full disclosure as possible before any work is actually carried out by HSD on the case. This was highlighted by defence solicitors as being a very positive development. This is done to allow earliest possible discussions about pleas and is entirely commendable. Some comments have been made by deputes that they would prefer to carry out their own disclosure to allow them to see the case at the earliest possible stage rather than have an unconnected third party involved. If cases were allocated immediately this would be possible. However, any change contemplated should not slow down the disclosure process which is working well.

66. The hard copy papers remain in Glasgow until allocated. At the time of inspection 20 cases remained unallocated, some from November 2011. Cases are allocated to deputes across all three areas. Following allocation the Principal Depute with line management responsibility for that depute prepares an allocation note. The hard copy papers are sent to the appropriate Principal Depute then onwards to the allocated depute. A letter is sent to the defence solicitor at the time of disclosure. It contains a list of the documents enclosed and should be signed for on receipt. A copy of the list sent is kept in the electronic case record. This is the only record of what has been disclosed. In all other mainstream areas within COPFS all documentary productions are either sent electronically or scanned and imported into SOS or FOS. Disclosure is then carried out electronically recording what was disclosed, to whom and when, as defence agents have their own passwords to allow them access to the website. It means nothing can be lost or misplaced. There is an automatic computerised record of all disclosure made with dates and times of download of this information by the defence. This record can be printed off and used as proof of disclosure. From our discussions with reporting agencies all informed us that they themselves scan all documents into their own data systems to retain copies for their own use before submitting the hard (original) copy to COPFS and it would be simple for them to submit this electronically to COPFS. If this were done it would mean that HSD administrative staff would not themselves have to scan and copy every document on to a pen drive but simply put it on to the web for agents to access. As well as saving time this would be a more secure system also providing a record of disclosure.

67. We have discussed this with ISD and SDD who indicate that it is perfectly possible for HSD administrative staff to scan documents into the electronic case directory and thereafter disclose using the secure website. They also believe that if the reporting agencies send scanned versions down the SRA link then these scanned versions can be disclosed via the secure website. SDD plan to discuss this with HSD to move this forward.

68. When the police send statements and documents for any solemn case they also send a completed disclosure schedule which is treated as a living document by both them as they send additional material and COPFS to record decisions made about what disclosure is to be made, then what disclosure is made and when. It accordingly contains a complete record of all material in the possession of the reporting agency and COPFS and allows both to refer to it and to ensure all disclosure obligations are met. Neither HSE nor the Local Authorities do this and no disclosure schedule is prepared or contained within any case directory for any HSD case. Since most cases within HSD are resolved by a plea and indeed disclosure is carried out at the very earliest opportunity this issue has not yet been raised in court. However, it is a potential problem. It appears that, when COPFS were holding discussions about the whole issue of disclosure with the police, other reporting agencies were not included or even informed immediately afterwards and it is only recently that they are being made aware of their obligations. During our inspection deputes, local authority officers and representatives of HSE all voiced their concerns over this. They also indicated that proposed timescales for reporting agencies to comply with these new arrangements were impossible to meet. Training will be required for reporting officers and a programme should be agreed for commencement as soon as possible so that disclosure obligations can be met and demonstrated.

RECOMMENDATION 13

We recommend reporting agencies submit all documents such as statements and productions electronically into the case directory to allow disclosure on the website, using the Disclosure Manual Client (secure disclosure website) as do all other mainstream units.

RECOMMENDATION 14

We recommend that full discussions take place with all reporting agencies as soon as possible to allow a training programme on disclosure schedules to be arranged as a priority.

Precognition

69. HSD routinely precognosce witnesses when the case is allocated. According to Crown Office policy mainstream units no longer do so routinely. Instead they carry out "purpose driven precognition". HSD staff at interview were clear that this precognition process is essential in order to prosecute this complex area of the law and that reports from the specialist agencies are not enough upon which to base decisions. HSD have no power to direct HSE to carry out further enquiries having to rely instead on co‑operation. This is different to the situation with the police where there is power to direct. The precognition process however adds considerably to the time taken to reach a conclusion with cases reported to the unit and ways should be considered to reduce time spent on this including finding other ways to obtain information. Clearly it is essential HSD specialists are in full possession of the facts and if initial statements do not provide it then precognition has to continue as it enables pleas to be obtained in cases. Perhaps further training of specialist reporting agencies would lead to reports and statements meeting the needs of HSD, minimising the requirement for precognition, bringing HSD more into line with mainstream units and speeding up the prosecution process.

RECOMMENDATION 15

We recommend further training of specialist agencies to ensure their reports and statements meet the needs of the prosecutors and to minimise the need for precognition. This would speed up the preparation process and bring the HSD more into line with all mainstream units.

Indictment

70. An indictment intended for trial includes all the charges, lists of witnesses and lists of productions. Only witnesses and items listed can be used at the trial. This court document, therefore, needs to be prepared to a very high standard. This is a very resource intensive procedure for COPFS.

71. On the other hand, where an accused has indicated an intention to plead guilty to agreed charges, a very short indictment (called s76) is prepared without the lists of witnesses etc. This is much less resource intensive as the case does not have to be prepared for trial.

72. The approach of HSD is to pursue an agreed plea. During our inspection we found only 4 cases out of 81 had been prepared for trial.

73. We are told there is delay in obtaining court time. Clearly this is less of an issue for summary work or for pleas. It is only in the event of a jury trial or Fatal Accident Inquiry which may take a few weeks, that there is a problem. Liaison with the Sheriff Clerks is essential to prevent delays.