Thematic report on Health and Safety Division

133. The unit is overseen by a Legal Manager. At the moment it is part of SFIU but during our inspection there were discussions about it becoming part of Serious and Organised Crime Division (SOCD).

134. A Victim Information and Advice (VIA) Officer based in Glasgow is attached to the whole unit.

135. The North is staffed by a Principal Depute, a Senior Depute and a Fiscal Officer.

136. The East is staffed by a Senior Depute and a Depute and is overseen by the Principal Depute for the North.

137. The West is staffed by a part time Principal Depute, two Senior Deputes, a Precognition Officer, an administrative manager and two Fiscal Officers. Temporarily another Senior Depute is attached to deal with one particular large case. A new Principal Depute has been appointed to oversee another large case and, during our inspection, two additional deputes were seconded to deal with that case.

138. When the HSD was set up, there was an administrative manager based in Glasgow, with two Fiscal Officers (FO) there, one FO in Edinburgh and one in Aberdeen. Later it was decided that Edinburgh did not require an FO.

Dedicated Crown Counsel

139. Crown Counsel are very satisfied with the standard of work coming from HSD.

140. When HSD was set up it was clear that the intention was to have dedicated Crown Counsel attached. Experience would be built up in this sphere at Crown Counsel level as well as in HSD itself. All HSD cases would go to this person to be read and advice could be sought from him/her during the investigation of a case when required, rather than simply at the end. This is a commendable idea, providing a known point of contact for legal advice for HSD. It also provided a means for a single person to make all decisions about a case through its life and avoid double handling.

141. The reality however is somewhat different. The first case likely to proceed in the High Court was actually allocated to someone other than the dedicated Crown Counsel. That AD however has been responsible for the case throughout its life. In fact, since the inception of HSD, no case has ever been prosecuted in the High Court so Crown Counsel have no practical experience of prosecuting a health and safety case.

142. During our investigation we found that one person was nominated as dedicated Crown Counsel for health and safety but was involved at all times with other criminal cases. He is regularly involved in murder trials lasting for weeks during which no HSD work can be done. HSD work appears to be in addition to all other mainstream work. Effectively HSD cases allocated to him can often sit for long periods unattended, adding to delays in reaching any conclusion. It also appeared that when cases arrive some are much easier and quicker to deal with than others but this is not apparent until the case is read. It would be easier if Crown Counsel and the person arranging the rota knew from the start if the case was one which could be dealt with quickly or one which required time. During discussion it appeared Crown Counsel are very open to having internal imposed targets as a means of managing work to enable the rota for Crown Counsel to better release him for HSD work. It appears that more effort is required to release him for HSD work when required. Another option which found merit was in having two dedicated Crown Counsel at all times. This would mean a better opportunity for work to be dealt with more quickly, would mean counsel could discuss more complex pieces of work with each other and would also mean an overlap. Crown Counsel are only in post for short periods and could be appointed on a "staggered" basis so that new entrants would have the benefit of the experience of one in post for a period.

RECOMMENDATION 27

We recommend that when cases are sent to Crown Office there should be an accompanying letter or email indicating the complexity of the decision for Crown Counsel and giving a target or an indication of urgency. This information should be recorded both within HSD and Crown Office as part of an audit trail and as an aid to monitor progress of and manage work.

RECOMMENDATION 28

We recommend that two Crown Counsel should be appointed on a "staggered" basis to prevent lengthy periods where no Crown Counsel is available due to other work commitments.

143. Staff turnover of deputes is a problem for this unit. This view was reflected in comments by both reporting agencies and defence solicitors. It appears that adverts for vacancies often have few or no applicants and often deputes are prepared to join the unit only on the basis of obtaining temporary promotion. Deputes we spoke to who have been involved in health and safety work indicated that they did enjoy the work itself. Many members of staff have received praise from criminal justice partners for their dedication to the investigation of cases.

144. Staffing in general has been an issue for the HSD. It has taken time for the numbers of administrative staff to be defined. In 2011-2012 there was no administrative resource in Aberdeen and reduced administrative resource in Glasgow, leaving the Band C and one FO covering for them all. The Glasgow FO was only replaced in August 2012. During this time all disclosure for HSD was being done in Glasgow. Only some cases at that time were electronic. Productions in particular are still not sent electronically from the agencies, and statements are only sometimes sent electronically. This means that disclosure is carried out on hard copy cases, redacted and copied onto a pen drive. To carry this out, hard copy cases were being sent from the office of origin (Edinburgh or Aberdeen) to Glasgow to be copied on to pen drive, then the pen drive and the papers sent back to the office of origin. Since there are no copies of the cases this incurred a real risk of loss in transit.

145. HSD has its own dedicated VIA member of staff. At first we thought this was excessive for the relatively small number of cases dealt with by the unit, particularly when compared to the SFIU, which has a much larger number of cases but does not have its own dedicated VIA person but as discussed below we found that the VIA Officer played a very important role. When there was a shortage of FOs within HSD it would have been helpful for the VIA person to assist in this area of work but lack of training in this area prevented this and it was considered to be too time consuming to take time out to train her. Accordingly she was unable to assist. There are plans now to train both her and the new FO upon her arrival to ensure assistance could be obtained from this area when required in future. In addition the Band C Manager was then carrying out administrative tasks to support the staff and had no time to carry out Band C work.

RECOMMENDATION 29

We recommend that original hard copy papers should not routinely be sent from office to office.

RECOMMENDATION 30

We recommend that the level of staffing of Fiscal Officers should not be allowed to fall from the agreed level of three for any period in excess of four weeks without cover from some other source.

146. Since HSD was set up in March 2009 the turnover of legal staff has been continuous. Recently in 2012 Edinburgh lost one depute who was only replaced some 4 months later. Two of the Senior Deputes in Glasgow left. Only one has been fully replaced. This has left huge gaps in the resourcing of the unit. Many cases have had to be passed on to as many as three different deputes or POs and one case we found had been in the hands of 7 people. Only some of the cases which had been allocated to the Edinburgh Depute and one of the Glasgow Senior Deputes have been re‑allocated (as at November). This obviously slows down the whole preparation and investigation process. If the outgoing person leaves long before the replacement arrives there can be no meaningful handover of information about the case. Most of the correspondence is carried out through personal accounts. It relies upon the outgoing person printing off pages for the benefit of the new person. The outgoing person is not in a position to pass on to defence solicitors the name of the next contact. The new precognoscer is largely unsighted on the finer nuances of the case. As a result some cases have fallen into the trap of not being worked on for years. The age profile of work in the unit is a matter of concern as discussed above. Multiple handling does not assist in the speedy conclusion of cases.

147. The work is clearly specialised and it takes a considerable period of time for deputes to become "experts" in this field. It is anticipated by the Head of Division that deputes should remain in the unit for a few years to attain expertise with no need to leave if the work suits them. The work clearly does not suit all deputes, particularly as very few cases proceed to trial. Deputes may be concerned at becoming "de‑skilled" or simply do not enjoy working with one or two cases for years to the exclusion of everything else. Others feel that their confidence has been affected by their experience within the unit as they are given little or no authority.

148. Many deputes have indicated they feel that their time and experience within this specialist unit does not enhance their career prospects, might not be worth doing and that their experience as specialist deputes is not valued by COPFS. In any event, for whatever reason, many deputes have left the unit after a very short period, having started work on a few cases without bringing them to a conclusion. Their replacement then has to start again. Thus time is wasted on many occasions.

149. We consider that efficiencies could be made in the management of this unit and accordingly could not at this stage make any comment about whether additional resources are required.

RECOMMENDATION 31

We recommend that there should be an agreed complement of Legal and Precognition staff. Where staff members do leave the unit they should be replaced within an agreed short period with a minimum agreed handover, to allow work to carry on more fluently than at present, thus avoiding delays.

RECOMMENDATION 32

We recommend that there should always be an agreed period for Legal and Precognition staff to remain within the unit. There should perhaps be a short trial period to allow the staff to determine whether the work will suit them.

RECOMMENDATION 33

We recommend that consideration be given to creating a "reserve list" to minimise delays in recruiting.

Role of Victim Information and Advice (VIA)

150. VIA play a significant role in dealing with distressed next of kin or victims especially those who are aggrieved by the delays in achieving closure in their cases. The VIA Officer is often the only constant throughout the life of cases. She provides support to the next of kin through the investigation and any court process. The VIA Officer in HSD manages their concerns and anger over the issue of delay very ably. She keeps very close regular contact with them, advising them where she can of the current state of the case and manages their expectations.

151. In examining individual cases we have perused VIA minute sheets. They contain very careful notes of each telephone call and action taken. They are often the sole electronic record of the person to whom cases have been allocated and when. They use the electronic B/U ('bring up') system to keep on top of each case. Each telephone call or email sent and received is accounted for. A record is made noting concerns, what information was passed on to the next of kin and what steps were taken by VIA to press the precognoscer and/or manager to reach speedier conclusions in the cases. It is clear that many uncomfortable conversations have been fielded by VIA with these relatives in what are extremely sensitive and anxious circumstances. VIA appear to have the only B/U system in HSD for looking at cases on a monthly basis and appear often to draw cases to the attention of the manager or precognoscer.

152. VIA also keep an "anniversary" list, noting significant dates, such as the date of incident or death and what would have been birthdays for deceased. VIA advise the precognoscers of these dates and ensure they or VIA try to make or avoid contact on these significant dates, whichever is most appreciated by the individual next of kin. This is another way of keeping next of kin informed of progress or lack of progress. More use should be made of this B/U system by managers to monitor progress and to drive cases to a conclusion.

153. There have been no formal complaints registered in RESPOND (the COPFS system for recording complaints etc) about the delay in concluding cases. It is clear that because of the regular contact maintained by both VIA and the individual precognoscers good relationships are fostered and maintained. Any complaints are voiced during this contact and addressed. Complaints do not therefore escalate into more formal letters. Many members of staff have indicated that they are surprised that so far next of kin have accepted these explanations without taking the matter further. It is clear that many "informal" complaints have been made but are not recorded. It is also clear that many letters of thanks or expressions of gratitude have been received, in particular by VIA. These have not been recorded either.

RECOMMENDATION 34

We recommend that all complaints and compliments should be recorded in Respond, to monitor how HSD is performing.

RECOMMENDATION 35

We recommend that a B/U (bring up) system is used by all managers in HSD to monitor the progress of cases.

Training

154. At the inception of the HSD some training on specific topics such as Asbestos Regulations was delivered by HSE to HSD team members in 2009/2010. While this was of some interest deputes have expressed the need for more specific legal training. They indicate this would be of more value to all but particularly to new members of the team.

155. Defence solicitors specialise in this field from an early stage in their career, seeing themselves as true experts. They express the view in the main that it is impossible to be a health and safety expert if the lawyer only works in this field for a year or two. They indicate they are (and appear to be) better resourced as "experts" than the Crown. We agree with this view.

156. A library of case law and styles for charges and narratives has been built up in HSD and is available for use within the unit. This is of very great benefit to all, not just new team members, and was commended by all deputes.

157. Since the unit was set up to house specialists specific training should be provided to legal staff upon joining the unit. Generally upon arrival deputes are simply presented with a copy of the Health and Safety at Work Act and copies of narratives and indictments which have been successfully used in closed cases. While it is clearly of benefit for new deputes to read these documents, some additional personal, pertinent and informal guidance would be more useful in bringing them up to speed as "experts" in this very specialised field of work. Where new team members are lucky enough to be located near experienced team members there appears to be great benefit in shared knowledge and "mentoring". There does not seem to be any structure within the unit for providing either formal or informal training on health and safety law to new members of staff. A large amount of training appears to be "on the job" training. It appears there is an intention to begin some more formalised training. It would be helpful to have a "pack" of useful policy, guidance and the law for all new entrants, updated as and when changes to the law and practice occur.

158. An "in-house" training day was held in June 2012. The dedicated Health and Safety Counsel also participated. Training was informal and centred round deputes discussing recent court experiences, sharing information about problems which had arisen during these trials and how they had been dealt with. It is clear all found this particularly helpful. This was all the more relevant as only 3 deputes in the unit have ever conducted a health and safety trial. It is a matter of note and some concern that only deputes have conducted trials so far with no PDs or above ever having done so. Crown Counsel also has never carried out a health and safety prosecution. This has led to a lack of shared trial experience and also a lack of relevant Scottish case law. The only recently tested decisions are from English cases and it is unclear how the Scottish courts will deal with these decisions. There has now been a further training session in October which coincided with new team members arriving.

159. All deputes agree it takes a long time to become familiar with health and safety law. There is general agreement that it takes at least 18 months before new team members have developed confidence and enough knowledge to deal with cases effectively. Some training in the law, delivered informally by sessions such as occurred in June 2012, at the start of every secondment would be of assistance in reducing the time taken to achieve a level of expertise. This along with court experience would be of benefit to developing expertise. To this end it might be helpful if HSD kept ALL health and safety FAIs. The straightforward ones go to SFIU. Experience in dealing with "experts" and leading technical evidence in court would be helpful to deputes within HSD. It would also benefit them to maintain their jury court practice by prosecuting occasional jury trials. This would of course have resourcing implications for the unit.

RECOMMENDATION 36

We recommend more formal and informal training in health and safety law for staff on a regular basis, particularly for new members of staff. A prepared pack would be very useful.

RECOMMENDATION 37

We recommend training for those with an interest in joining the unit in the future. This would build up a bank of staff to cover quickly when team members leave. It would also provide a bank of knowledge when large cases are reported and additional support and resources are required.

Team briefings

160. HSD was set up in March 2009. Prior to our inspection there had only been one team briefing. Due to the geographical location of the unit some members of the unit have to attend via Video Conferencing (VC). The first team briefing recorded was on 10 February 2010.

161. Unfortunately, due to technical difficulties with Video Conferencing equipment, team members from Edinburgh were unable to be present or take part. At that time, it was noted that it was intended to have regular briefings, every 6 weeks. An agenda was prepared for the next meeting on 7 April 2010 but it does not appear to have taken place and no other briefing took place until 23 August 2012, during the period of our review. On this occasion, members of staff from Aberdeen, Elgin and Edinburgh were able to attend via VC. Again it was noted that meetings should be held every 6 to 8 weeks with the next scheduled for September 2012. We note that there have since also been briefings with minutes in October and November.

162. Some team members are very isolated, effectively working alone within a local office, meeting with other team members on an infrequent basis. While the work can be carried out in this way it would appear to be even more important to generate and maintain team identity by having regular team briefings. It is apparent that there is regular daily contact between all offices by telephone and email but some team members would benefit from more regular contact with their colleagues.

RECOMMENDATION 38

It is recommended that regular team briefings are held and minutes noted and recorded on the shared drive.