Thematic report on Health and Safety Division

163. While the vast majority of cases are reported by HSE we found from the spreadsheets that out of 228 cases received since 2009, 45 (or 20%) were non-HSE.

164. British Transport Police (BTP) indicated they had a good relationship with HSD and had built up trust on both sides. As a direct result of the creation of HSD and having a permanent point of contact they reported there was better consistency of approach by COPFS, more accessibility to decision makers, (namely Head of Unit) and they could thus obtain instant decisions. They could see benefits since HSD was set up. They would welcome HSD enforcing more time constraints on them for submitting cases as they believed this would speed up the time taken by BTP to report.

165. The Office of Rail Regulation (ORR) agreed that following the creation of HSD there was better decision making and more accessibility to head of HSD. Once the case was allocated they enjoyed good contact with the precognoscer. They were particularly satisfied with the level of consultation about pleas being negotiated and the agreed narratives. One of their main aims in a prosecution was to obtain publicity for the breach, to educate the industry and avoid repetition of the accidents. By having a more co-ordinated approach to any plea being tendered in court they were able to marshall their publicity relations unit to ensure they obtained maximum appropriate publicity. They indicated, however, that before HSD there had been more discussion with the local Procurator Fiscal as soon as the case was reported and any difficulty was communicated immediately so any further work could be done by ORR at the earliest opportunity. Now there tended to be delay before any discussion took place which meant additional work was carried out a long time later. This mirrored our findings about delay in allocation of cases. This was not beneficial either to the Reporting Officer or to the case. The vast majority of their cases involved fatalities and were dealt with on indictment.

166. Local Authorities echoed the improvement of liaison about individual cases since HSD came into being and applauded also the consultation about pleas. In their view this enabled them to organise the media as above. The reporting officer could attend court to see and hear what was said. This was in itself a useful training tool since so few officers were ever asked to give evidence. It gave a sense of job satisfaction. Whilst they currently accepted liaison on a case by case basis they sought more general formal liaison and training. A benefit was that they now knew who was dealing with health and safety cases in contrast with non-health and safety cases reported by them (such as environmental health cases). They reported that all deputes were approachable on an individual basis and that the trend was for cases to be concluded by plea rather than go to trial.

167. HSE were supportive of the service provided by HSD, stating it was a much improved service, particularly at the initial investigation stage. Having a known point of contact and consistency in decision making was an improvement from individual local Fiscals with different levels of skill and knowledge of health and safety. They also appreciated being consulted about pleas for the same reasons given by others. It also helped them to understand why some pleas were accepted and not others so was educational for them.

168. HSE also commented that improved media handling was a real benefit of the set up with HSD. It also seemed to HSE that there was a better understanding generally among deputes in SFIU and in the police about when HSE should be involved. In the past they were often not informed until too late about an incident but their view is that this is now much better regulated.

169. They also indicated that liaison with the police in potential corporate homicide cases was now much improved due to liaison with HSD.

170. HSE expressed concern not to have been involved in discussions about disclosure for as long as the police had been. They did not think they would be able to comply with the new requirements within the timescale first suggested. They did think they should have been advised even if not involved as soon as discussions began with police to allow them to have a chance to get ready with disclosure schedules.

171. Many agencies praised individual members of HSD for their work and dedication.

172. All agencies expressed frustration about the length of time it took for any case to be prosecuted after they had reported it. It appeared to many that cases went into a "black hole" after they reached HSD. Many mentioned the inevitable "bottleneck" where all decisions were funnelled through one individual and thought staffing must be an issue causing delay. Many thought that in some cases summary procedure was the appropriate forum and indictment should not always be the default position as this procedure took much longer. There was general agreement that some cases did not merit indictment penalties and while they had been keen for the serious nature of health and safety offences to be highlighted in this way they would sacrifice this publicity to achieve speedier resolution.

173. Some cases were relatively straightforward but it was thought these were held up in a "queuing system" only proceeding as fast as the most complex, slowest case. There were questions about whether some could be short-circuited for example by template or style.

174. Most also felt that the added layers when corporate homicide was a consideration led to huge delays. This was because the police took primacy until it was decided Corporate Homicide was not an issue. Initially the case might be considered jointly, then by the police, then handed over to the other reporting agency. During the initial phase there might be discussions about how interviews would be conducted, by whom and whether this was to be with assistance from the other agency or not. There was a general belief that the protocol for dealing with Corporate Homicide was too cumbersome.

175. All agreed that HSD had done a good job in obtaining pleas in cases. This resulted in great savings of their time as witnesses in court. The down side was no case law developed and investigators did not obtain experience in giving evidence. Experts were not tested in court either.

176. We saw a wide spread of solicitors working in the field of health and safety. Some represented the companies who were subsequently accused, some represented insurance companies who were paying for a defence for the accused and for any civil claim. Some represented the families of victims in the criminal and civil case. Surprisingly most agreed upon the main points. All applauded the set up of the specialist division. All agreed it was of benefit for the Crown to have their own experts in the field with whom they could have early, meaningful discussions. All agreed that a known point of contact, namely the Head of Unit was a huge benefit. As with the reporting agencies many commented positively on the approachability and dedication of individual members of staff.

177. There was also very positive feedback about early disclosure. Delay was the universal problem for them. Many have been quoted in the press in relation to complaints about the delay in specific cases and the effect this has on associated civil claims.

178. Many felt they and their clients were reliant on the conclusion of FAIs before they could process civil claims. They voiced concerns that they were unable to obtain vital information from the reporting agencies until conclusion of HSD work. Given that the triennium applies here they were at a real disadvantage when criminal proceedings and/or FAIs were taking over three years to conclude. Solicitors acting for accused companies were all keen to emphasise that they and their clients did not want delay. Many reported that their clients were horrified by the events which had caused injury or worse to employees of theirs and from a human point of view wanted to be punished. They also wanted to draw a line under the incident. Others were also concerned about the reputation of their companies and wanted to pay any fine with the minimum of fuss along with any compensation due as soon as possible. All agreed, however, that delay in dealing with the case allowed companies to rectify whatever error or failure had caused the incident.

179. The strongly held views of deputes within the unit was that a major reason for delay was that defence solicitors required time to obtain instructions from their clients. Solicitors, however, indicated that they had no difficulty in obtaining instructions from either individuals or from a board of directors and they saw delays in the Crown accepting tentative pleas, sending draft charges and narratives for negotiation and agreement, then obtaining final agreement or Crown Counsel's instructions once agreed by parties.

180. Solicitors did question whether the noticeable turnover of staff contributed to the problem of delays and questioned also whether that affected the development of expertise within the unit.

181. Most solicitors accepted that pleas of guilty were inevitable in this area of law as the legislation provided little "wriggle room" for the defence but many indicated that the insistence of proceeding on indictment in the majority of cases prevented or delayed pleas. No-one questioned the merit of indictment in cases of fatality.

182. Another issue of contention was that following a long process of agreeing charges and narratives (after the court appearance) there was an insistence by HSD to issue a press statement. This was never agreed. They were concerned that it could damage reputations which had been a major consideration in the agreement. In fact since solicitors were unable to predict what might be said on this occasion it was now a sticking point in agreeing pleas. The same did not apply to press releases by HSE and reporting agencies who were keen to promote good health and safety practice. Those to whom we spoke could not see the relevance or benefit of the Crown statement. HSD did not agree that their press statements were a problem. We examined all HSD press statements and compared them with the agreed narratives. We did not find any inconsistencies between them.

183. All expressed concern at the additional time and complications caused by the protocol in the investigation of fatalities. The system can involve double handling.

184. Solicitors acting for families expressed concern that HSE and other reporting agencies would not provide any information to them during an investigation and they were also unable to speak to witnesses in the case until a conclusion was reached by the Crown in relation to the criminal case. This endangered their civil claim which has a three year time bar unlike the criminal case which has none. They could raise a case where they knew who to raise it against, then have it sisted until conclusion of the criminal case. They were, however, unable to do so if they were unaware of who to raise the action against. This obviously prejudiced their clients who were invariably the family of a victim. If the Crown case were to be disposed of more quickly it would not interfere with their civil action ultimately resulting in compensation being paid to families more quickly.

185. Sheriffs we spoke to appreciated receiving the agreed narrative in advance of the plea along with financial information. They were also positive about the pleas. They did, however, express disquiet about the delays in cases coming to court. In one case, where there was an agreed plea, in open court the sheriff demanded an explanation for the delay. He was not entirely satisfied with the explanations. In another case where there had been a debate the defence sought leave to appeal which was opposed by the Crown on the basis it would delay the case. The sheriff was of the view that the Crown had been responsible for delay and indicated that the Crown should not have opposed the motion. Other sheriffs also had concerns. During our investigation delay and age of cases was mentioned by all.

Liaison with Criminal Justice Partners

186. Findings during our investigations were mixed. HSE and ORR are content with quarterly formal liaison meetings with HSD. They are also positive about the unlimited access they have to HSD Head of Unit. They are also content with regular liaison meetings between HSE, ORR, HSD and the police in relation to Corporate Homicide cases. However, none of the other reporting agencies appear to have any formal liaison with HSD. The Local Authorities were very vocal in their view that some formal liaison, perhaps once a year, would be of huge benefit to them and indirectly to HSD as they think this would go some way towards improving the quality of their reports.

Training of reporting agencies

187. There did not appear to be much training provided to reporting agencies other than on a case by case basis. While that may be effective with reporting officers with larger case loads who report cases on a regular basis it is not effective for those who rarely report. HSE were satisfied they had had some training from the Head of HSD and a member of staff on one or two topics, including Corporate Homicide, but appeared to be content to provide their own nationwide training. Given that HSD routinely feel the need to precognosce witnesses this suggests that more training of HSE is required, to permit more minimal precognition by HSD and to save time.

188. Local Authority representatives to whom we spoke, however, expressed anxiety about lack of training. They have made attempts to involve HSD in delivering training to them but this has not borne fruit. Although there are numerous Local Authorities (32), they are all pulled together under the umbrella of Royal Environmental Health Officers of Scotland (REHIS). This body does deliver training to its members with occasional input from HSE officers. During our investigation we attended a training session organised by this body. On this occasion they had sought input from HSD who had been unable to assist. There was, however, someone from HSE to deliver training to them at that same event.

189. There were concerns voiced from REHIS that they were "overlooked" by HSD. They indicated they had recently received comments about contents of their reports and looming issues, such as disclosure, second hand from HSE. They did not feel they should be receiving such messages indirectly, preferring to have first hand contact with HSD.

190. Members of REHIS had taken up an offer by the police to deliver a half day course on report writing, delivered at Tulliallan Police College during August 2012. Such was the level of interest that the course was delivered both morning and afternoon that day. Unfortunately, although the COPFS representative gave a well received presentation, it was not as pertinent as one delivered by HSD itself. This demonstrates the perception of Environmental Health Officers of their need for training and their willingness to be trained. This course was a "one off" offered by Tulliallan trainers who had free capacity and there is no guarantee that it will be repeated. While this course covered "report writing" in general terms it did not cover health and safety cases, nor did it cover their other area of concern, sending reports down the electronic link.

191. The Office of Rail Regulation were positive about their relationship with HSD and HSD were satisfied with reports from this body.