Thematic report on Health and Safety Division

Age Profile of Cases

74. During our inspection we consulted widely with (among others) agents acting for accused, agents acting for families of victims, reporting agencies and sheriffs. All expressed concerns about the age profile of cases and about their perceptions of delay in dealing with the cases from receipt of the report to getting the cases into court. We saw letters from next of kin and from MSPs and solicitors on their behalf making enquiry into the progress of cases. They also intimated concern over the length of time it took for decisions to be reached about whether there was to be a prosecution, an FAI, both or neither. They also expressed concern about how long it actually took for a conclusion of same. One such case was concluded 4 years after the incident, despite concern having been expressed before the case was transferred to HSD. Another case only came to conclusion over 5 years after the incident (concern having been expressed in the press about the delay). A further case took 5 years before a decision was made that no proceedings were to be taken. One is still being investigated 2½ years after the incident and has also received adverse press coverage.

75. We accept some of these cases can be complex and time consuming.

76. The table below shows the status of cases since the Health and Safety Division was unofficially set up in October 2008 before being formally launched in July 2009. The figures have been extracted from HSD spreadsheets at 4 July 2012 and are based on year of receipt of the report. It is based on number of cases rather than number of accused. If cases have more than one accused with disposal dates in different years, the latter date has been used.

77. The Division took on old cases from the Areas including some from 2007. We wonder whether adequate consideration was given to the resource implications to appropriately deal with these old and very complex cases, some of which are still within HSD now.

78. As stated above, we were unable to obtain any data from any other source such as the national database. It has to be borne in mind that the spreadsheets have already been demonstrated to be inaccurate and out of date. There are ongoing investigations which are not recorded here as they are registered "not yet reported".

79. Profile of Cases 2007 - 4 July 2012 based on date of receipt:

80. The above chart shows that the Health and Safety Division had (at 4 July 2012) a total of 130 live cases and 98 closed cases. 37% (or 48) of live cases were received before 2011 one of which was received in 2007, 3 in 2008, 8 in 2009 and 36 in 2010.

81. Of the 98 closed cases 17 (or 17%) were marked no proceedings or no further proceedings.

82. For the remaining 81 closed cases the choice of court forum was split as follows:

• 21 or 26% were dealt with on summary complaint
• 60 or 74% were dealt with on indictment (of these 60 cases 56 were agreed pleas and only 4 were prepared and proceeded to trial)

83. Reporting agencies for health and safety cases such as HSE, Local Authorities, BTP, Maritime and Coastguard Agency and ORR take long periods to report cases, often over 2 years. These agencies accept in the main that it would be helpful if HSD drove them to report more quickly. Although HSD, mostly through the Head of the Unit, is involved in the very early stages of investigation it might be helpful if the cases were then allocated at an early stage to the precognoscer. This would allow the precognoscer to be more involved in driving the investigation to an earlier conclusion. Alternatively the Head of Unit requires to drive the reporting agency to earlier report. It is clear that at the beginning of the investigation it is often not known if a crime has been committed and this accounts for some of the time taken to report the case to HSD. With more direction from HSD during this lengthy phase this process could be accelerated. There are numerous decisions to be made at this stage. These include matters such as -

• from whom to take statements
• the format of these interviews
• questions around compulsion and legal representation at interview
• decisions about what agency takes the lead. This can be time consuming especially where a Corporate Homicide charge may apply.
• requesting documents and information from companies who could ultimately be the accused
• when to seek this information by warrant

84. These are all time consuming matters but have a direct consequence on the outcome of the investigation. It would be beneficial if it were driven along more quickly. All reporting agencies are more than satisfied with the service provided meantime in the area of initial investigation. They have almost unfettered access to the Head of the Unit but it does appear from our investigation that enquiries are allowed to drift for long periods after that initial stage. It may be that this could be speeded up if there was even more, but differently focussed, involvement from HSD. Currently only the Head of the Unit is involved at the very initial investigative stage. This area of work is already very time consuming. If the Head of Unit took responsibility for ensuring reports were received by HSD at least within a year (which is the understanding of HSE) along with providing additional training and support for reporting agencies, day to day responsibility for decisions in processing cases would then primarily be delegated to Principal Deputes (PDs). In all other units PDs already have that responsibility. All work following receipt of the reports could be delegated to PDs, closely supervising precognoscers. The PDs would then have the responsibility of ensuring precognitions were concluded timeously under the general management of the Head of the Unit. This would allow a freer and speedier flow of work. An early decision identifying summary cases and those which require to be treated as Corporate Homicide is essential, even though this can be difficult.

85. Currently we have found that even when cases are reported to HSD they remain unallocated to a precognoscer for some months.

86. No doubt this delay was in part due to the frequent changeover of staff. Thereafter even when the case was allocated no early report target was given. We also found that as cases were re-allocated and went through several deputes who came and went from the unit no real effort was made to place new reporting targets on the cases and cases were not flagged up as priority.

87. We have also seen instances of cases where reports have been prepared by deputes but not sent for Crown Counsel's Instructions (CCI) for months. We saw a case where the death occurred some 5 years before any report went to Crown Office. This case came from HSE recommending that no proceedings should be taken. Although it was already 2 years old before it came into the new unit it did not appear to be treated with any urgency. Despite receiving frequent requests from the next of kin and their solicitors for progress reports, and escalating demands to know if any priority had been given to this investigation, a report was not prepared for CCI until 52 months after the death. The report seeking CCI did not go to CC until another 8 months had passed. This delay is unexplained and of concern. Instructions agreeing with the recommendation not to proceed were given by Crown Counsel on the same day as sought. Meantime a "protective" civil action had to be raised on behalf of the next of kin to preserve their position within the civil time bar of three years. This action was sisted for about 18 months then later abandoned due to lack of essential documents and evidence upon which to base their case. The evidence was unavailable to representatives for the next of kin having been seized by reporting agencies, then passed to HSD. HSD were still holding this while considering whether there would be any criminal action or an FAI. The next of kin were only met and told formally of the decision 2 months after CCI were received and asked for their views on an FAI.

88. There is no further evidence of another report seeking CC's instructions re an FAI but the accused were informed after another two months that no further court action would be taken.

89. We also found another example in which CCI were received to proceed and some months later this instruction had not been carried out. In one case CCI were received to proceed by sheriff and jury and this was not acted upon for 7 months.

90. Initially cases were reported to Crown Counsel for decisions on prosecution but the question of FAI was not addressed until after the case had been concluded. We found examples where this was not done for years. This policy has now changed and instructions are sought simultaneously for prosecution and FAI.

91. We also note that in 6 cases prosecutions could not continue as the accused company had ceased trading, leaving no-one to prosecute. If cases were dealt with more speedily and could reach a conclusion more quickly the risk of this happening would reduce.

RECOMMENDATION 16

We recommend that at all stages the system should be fully updated to allow fruitful interrogation of the system by any enquirer and also to allow Management Information Division (MID) to provide automatic information about the stage and state of case preparation with a view to flagging up any potential problems in time to prevent delays and risks to reputation re old cases.

RECOMMENDATION 17

We recommend that Crown Counsel's Instructions are acted upon within an agreed short timescale.

Targets

92. Cases appear to be routinely years in the preparation. Cases are reported to HSD years after the incident, then are investigated further by HSD for years with witnesses being precognosced by HSD. The default procedure for cases, whether or not they involve fatalities, appears to be indictment. Ordinary solemn cases in mainstream units usually start life on petition. This initiates a time bar of one year within which a trial must be commenced. HSD cases are never placed on petition as the accused are primarily companies and cannot be placed on petition so this target never kicks in. The cases dealt with in HSD accordingly do not have this one year procedural time bar and in addition health and safety legislation does not impose legal time bars.

93. There are therefore no discernible targets within HSD.

94. HSD rely entirely on manual monitoring. Because they do not mark cases in FOS the statistics do not feature in the national database and so they are not automatically flagged up by MID. There is no apparent sense of urgency to meet either a legal time bar within which the case must be raised or a procedural legal time bar once the case has been commenced in court. The age profile of these cases is accordingly significant. We are told that most cases are given a target for reporting when an original allocation note is prepared and we have seen some during our inspection. However, as the cases routinely pass through several hands during the precognition process, by the time they get to the second or third person the cases will already have overshot the reporting target and do not seem to be given new ones. No further target is given to the case. It is all too easy for the case to drift and for time to pass.

95. As the cases can be complex it would not be realistic to anticipate that a "one size fits all" target would suit and that every case would be ready to proceed to court within a year of the investigation but some cases are less complex than others. It should be possible to have a realistic estimate of anticipated time scales at the start of each case, on a case by case basis. As the unit has been in existence for some 3 years staff should have more experience of the specialist work and be better able to gauge the appropriate timescales. On looking at the spreadsheets kept by HSD for their own use the age profile of their cases is of concern to us. The table below shows the age profile of cases currently being precognosced in the unit.

Age Profile of Cases on HSD Spreadsheet:

96. This spreadsheet shows the current state of work in hand as at 4 July 2012. The year shown relates to the year the report was received and NOT the date of the incident, which is often one or two years earlier.

97. It can be seen that there are large numbers of cases which were reported to the HSD 2 years ago and which have not yet reached conclusion and there are 12 cases of over 3 years. Crown Counsel would welcome the idea of internal targets as a means to prevent long periods of delay, to prioritise work and as a management tool.

98. We also looked at the average time it took for a case to be dealt with.

99. By reviewing the HSD spreadsheets relating to all closed cases the following results were found. These include cases marked 'no proceedings' and 'no further proceedings' and are all cases dealt with by HSD since 2009:

100. Time in months from receipt to disposal for all closed cases:

101. As at 4 July 2012 a total of 98^[2] cases had been closed by HSD. The above chart shows that 33 cases were dealt with between 1 and 12 months of receipt; 51 between 13 and 24 months; 10 between 25 and 36 months and 4 took more than 36 months to disposal.

102. It was noted that the time in months from receipt to disposal/verdict of a case ranged from 1 to 42 months with an average of 17 months.

103. Cases received within the unit when it was created, which had already been in local offices, do not appear to have been "fast-tracked", even though they were older cases. We saw one case where the death occurred in October 2006, the report was received by COPFS locally in August 2008 and transferred to HSD when it was set up in March 2009. Disclosure was made to the defence in April 2009, CCI were received to proceed by sheriff and jury in September 2009 but the case did not get into court until February 2010 when it was resolved by plea.

104. We note as stated above that cases are usually at least a year and often more than 2 years old before any report is received in HSD. When this is added to the average of 17 months to reach a conclusion the triennium (a 3 year time bar) for civil cases has expired before cases reach conclusion. This delay seriously impacts on the ability of families of victims to appropriately seek redress from the accused company. HSE routinely refuse to provide any documentation or information to solicitors acting for the family until a conclusion is reached in the criminal case. At that stage they do hand over all documentation. Although civil proceedings can be raised and suspended it is often difficult for the family and their representatives to identify the correct body against which to raise their action if they are unable to obtain information from HSE until AFTER conclusion of the criminal case. By that time they may easily have exceeded the three year mark and cannot then raise proceedings.

RECOMMENDATION 18

We recommend that targets are imposed on reporting agencies to ensure cases are reported within much shorter timescales than at present.

RECOMMENDATION 19

We recommend that internal targets are put in place to avoid cases becoming too old for meaningful prosecution. This would have a beneficial effect on ensuing civil cases. It may be that individual targets could be attached to each case, based on complexity, to allow for a realistic preparation time. A target should also be extended to cases as they are reported for CCI.

RECOMMENDATION 20

We recommend that wherever possible information required for processing a civil claim is passed to representatives of victims and next of kin as soon as possible to allow them to raise a civil action within the three year civil time bar.

RECOMMENDATION 21

We recommend that HSD hold regular management meetings to ensure cases are progressed as quickly as possible.

RECOMMENDATION 22

We recommend that more cases are indicted into court for trial rather than waiting for the defence to agree a plea.

Management/monitoring

105. Because cases are not marked within FOS and are not always recorded in PROMIS (the two national databases), the cases cannot be monitored within the national database and therefore any monitoring of work has to be done manually. This involves Principal Deputes being personally aware of all ongoing work their team members have on their desk. Since HSD is a small unit this is possible to an extent but is not recommended as a good system. It also means that nationally (including the Management Board and Law Officers) there may be an incomplete picture of what work exists in the unit. Presumably in an effort to keep track of this we saw use of the "case load document" for overall monitoring and reporting to the Solicitor General. Again, this document was only as good as the information entered into it and was not fail-safe if cases were omitted for any reason.

106. Reports, letters emails and documents are not routinely kept in the electronic case records. They can not therefore be seen by anyone either managing the work or following on from someone who has left the unit. All documents should be imported into the electronic case record.

107. We found that almost every member of staff had created their own (different) way of recording their work or that of staff for whom they had responsibilities. This information was not communal or shared in any way. The best records we found to be created and maintained were those of VIA (see Chapter 6). The minute sheets there were comprehensive but often contained only information passed verbally to the VIA Officer by the precognoscer and were not 100% accurate for dates and so on.

108. We have found that even when cases are precognosced and sent to Crown Office for Crown Counsel's Instructions this is not always recorded in PROMIS. Administrative staff were aware of this problem and had in the past asked precognoscers to keep them "in the loop" when reports were sent from personal accounts. This was in an effort to keep better records. There is accordingly no record in the system to show the stage of the cases and this can cause difficulty in providing accurate information to next of kin on the actual state of the case.

109. As stated above, we found that cases were unallocated for months. No doubt this delay was due to the frequent change over of staff but thereafter even when the case was allocated no early report target was given and we found that as cases went through several deputes who came and went from the unit no real effort was made to place new reporting targets on the cases and cases were not flagged up as priority. We also found that although some cases were less complex they were not hurried through the process to an easy speedy conclusion. They simply joined the queue along with more complex cases.

110. Although many of the cases are complex and "one off" cases some are not following more routine types of accident. They do not require the same level of legal input either to regulate the investigation or to consider the law in depth in relation to the breach. Templates for some of these more routine types of case would help speed up the process such as work at height cases. This would allow a Precognition Officer (PO) to work to a format with minimal supervision, turning cases out more quickly where appropriate. A PO requires a high level of supervision as they are not able to have meaningful meetings with agents to agree pleas, draft charges and narratives but could do this type of work, freeing up deputes to carry out more of the legal work. Job descriptions for POs and Principal Deputes would be of benefit here in clarifying responsibilities.

111. In cases where Corporate Homicide is under consideration we found two areas of bottleneck. Firstly in determining whether it is a corporate homicide as this determines whether the HSE/Local Authority or police have primacy in investigating, taking witness statements, etc. Delay in a decision here means that the investigation comes to a stop as neither knows who is to conduct the interviews and then how they are carried out. The second bottleneck is once the case is reported as a possible Corporate Homicide (CH). It appears that it would be helpful to have an early decision about whether that charge is likely or not and CCI should be sought. Since no such case has yet been prosecuted there is a level of uncertainty amongst the precognoscers about how to tackle it. It would be of benefit if the precognoscer could be told initially if it is unlikely to be a Corporate Homicide as they could immediately precognosce as normal. If it is to be a CH then a different approach may be necessary but clear monitoring and management of the case would be required by the PDs and the Head of Unit.

112. It also appeared to us that the PDs do not have full autonomy for countersigning cases as all key decisions seem to have to be made by the Head of Unit including forum, draft charges, pleas and any agreed narrative. This is not an efficient way of working and fails to make full use of the PD grade. In every other unit deputes of this grade make these key decisions. It also causes a bottleneck for work as the Head of Unit is more than fully occupied with the early stages of investigation of new cases and working closely with HSE. There is insufficient time for one person to deal with the initial stages in addition to the latter stages. We have seen that this delays decisions as well as disenfranchising perfectly able PDs who should be supervising the precognition process.

113. We found an instance where a plea and narrative had been agreed by the defence and CC had instructed this plea was acceptable. However on the day before the case was pre-arranged to call in court it was decided the narrative was not acceptable. Although the case was due to call in court next day it did not, and before the case could be prosecuted, the company went into liquidation months later and could not then be prosecuted.

114. We found inexplicable delays where deputes had worked on cases and prepared reports for CCI but the only electronic record of the case shows it being sent to Crown Office up to a year later.

115. We looked at the level of work coming out of the unit since 2009 and the volume of work going in and have concerns that the work within the unit to be processed is rising. The input is greater than the output. It has to be borne in mind that HSD took on a large number of "legacy" cases which by definition were the most complex of cases. Some of them were already very old before they came to HSD.

116. Cases closed years 2009 - 2012 (4 July 2012)^[3]:

117. The above table shows a total of 11 cases were closed in 2009; 35 in 2010; 39 in 2011 and 13 in 2012 (up to 4 July 2012) totalling 98.

118. This compares with input over the same periods of 77 in 2009 (this includes cases from 2007 & 2008); 64 in 2010; 61 in 2011 and 26 in 2012 (up to 4 July 2012) totalling 228 cases which can be shown as follows:

119. Cumulative numbers of cases received since 2009 compared with cumulative number of cases closed since 2009 to 2012 (at 4 July 2012):

120. The above chart shows that 57% (130 from 228) of cases received during the whole period are still live. Based on average annual output over the period of 29 cases it can be said that it could take 4½ years to clear the current case load.

RECOMMENDATION 23

We recommend that all mail and documents created within HSD are stored in the electronic record of the case.

RECOMMENDATION 24

We recommend that in order to avoid a bottleneck Principal Deputes are given more autonomy to make decisions about forum, charges and agreed narratives and acceptable pleas leaving the Head of Unit freer to train reporting agencies, improve reports and concentrate on the initial stages of investigation with HSE and the other reporting agencies.

Forum of Closed Cases at 4 July 2012:

121. This chart excludes 'no proceedings' cases. From inception of the unit, 21 cases (26%) were dealt with on summary charge with the remaining 60 cases (74%) placed on indictment:

122. The chart below shows that 43% (or 26) of the 60 cases that proceeded on indictment resulted in fines that can be awarded in a summary court (£20,000 or less). Given that the general policy is for proceedings to take an "outcome based" approach it can be argued that perhaps for these 26 cases summary procedure may have been a more appropriate forum given the final results. 53% (or 32) of the 60 cases resulted in fines appropriate to the forum in which it was processed and one case was found not guilty with one other resulting in an acquittal.

123. Results of cases placed on indictment are as follows:

RECOMMENDATION 25

We recommend that early consideration is given to placing cases wherever appropriate on summary complaint and fixing court dates for them as priority.

Geographic Allocation and Management of Work

124. It is clear from the way the unit was originally presented by the Lord Advocate that a great deal of importance was attached to the geographical links between the individuals in the unit and the Reporting Agencies. One of the theories and best practice is that the precognition work should ideally be done by the same depute who then prosecutes the case in court. Obviously ideally it should allow for that depute to know the court and all connected personnel and to be able to live at home during the life of the court case. Typically the cases last for some three weeks.

125. This sensible ideal appears to have been mirrored in the allocation of work at the birth of HSD but due to the frequent high turn over of staff and the necessity to re-allocate work this has not been followed through.

126. On looking at the spread of work currently allocated we have found that there is no longer any close geographical connection between the incident, with all its associated witnesses and reporting agency, and the depute within the unit. A depute based in Edinburgh is as likely to be prosecuting cases in Dumfries as they are in Lothian and Borders or Central while the depute based in Dundee is as likely to be prosecuting in Lothian and Borders as in Fife or Grampian. Indeed we are aware that an Edinburgh-based depute was specifically allocated a three week trial in Glasgow with all the associated displacement issues involved for the duration of the trial. On looking at the case load of an Edinburgh depute it can be seen it includes a case in Kilmarnock another in Hamilton along with 2 in Tayside, 3 in Fife and 1 in Ayrshire. Trials in any of those will involve upheaval and a "familiarisation" time for each different court. While it is clearly difficult to re-allocate work appropriately this spread of work is inefficient.

127. It also appears to militate against the idea of having three bases for HSD to be attached to local HSE, witnesses and courts.

128. Work Allocated Geographically to Deputes:

129. The spread of work and the geographical set up of staff also adversely affects the monitoring of the work.

130. The PD for the West is based in Glasgow and has line management responsibility for deputes and a Precognition Officer (PO) in Glasgow which works well.

131. There is no PD for the East. The PD for the North is based in Elgin and has line management responsibilities for one depute based in Dundee and two deputes based in Edinburgh along with a Fiscal Officer based in Aberdeen. This is all far from ideal. Contact is by phone and email but of necessity involves discussion about particular cases without access to papers. Although, as we have mentioned, the original report is now sent electronically and is on the system only some statements and no documentary productions are contained in the electronic case. No mail or emails are imported in to electronic case papers. It appears that in any discussion involving this remote PD of a case during its life the case may not be seen again by the PD unless he comes to Edinburgh and he is relying on memory of the case at allocation or notes made by him then.

132. We were told that the PDs do meet and discuss allocation of work on an irregular basis since one is based in Elgin and the other two in Glasgow. However, it appears that when work is allocated, allocation notes are prepared by the PD with line management responsibility for the depute. This must involve case papers travelling round the country. For at least a year (2011 to 2012), due to reduced administrative resources, all administrative work for HSD was carried out in Glasgow. There is no administrative support in Edinburgh. This means that if a case is allocated to a depute in Edinburgh the case may be in Glasgow for administrative work and for allocation discussions, then be sent to Elgin for the PD to prepare an allocation note before being sent to Edinburgh for the depute to work on. For the PD to countersign the case it appears the case may again be physically transported to him before returning to Glasgow for administration purposes.

RECOMMENDATION 26

We recommend that work is allocated geographically wherever possible.