Thematic report on Health and Safety Division

192. The work which is produced at the end of the process by HSD is of very high quality. This was the view of Crown Counsel, reporting agencies and solicitors.

193. The presumption appears to be for cases to proceed on indictment. It is questionable whether this is appropriate given that the maximum sentence for summary is £20,000. Not all breaches are so serious they merit solemn procedure and not all companies are able to pay fines in excess of £20,000. It should be quicker to proceed on summary although we came across some cases which did not call in court on summary complaint for at least a year.

194. Conversely, one case which was marked without delay, on summary complaint, was in court only 5 weeks after the report was received and received a £2,000 fine following an immediate plea of guilty. This case bypassed HSD but was dealt with efficiently by the local office none the less. Cases dealt with in the unit take much longer. One example involved a straightforward case, but while the case was received in May 2009 was not ready for court on indictment as a plea until August 2010. Other cases which have been disposed of on indictment have taken on average, as indicated above, over 17 months to reach conclusion.

195. Time would be saved by better and quicker filtering of cases into summary procedure as this procedure is less formal, allowing quicker resolution of pleas and quicker entry into the court system. Perhaps pleas would be obtained more quickly as during our investigation we frequently heard that forum caused delay as it was a sticking point for reaching agreement about pleas.

196. Very few cases proceed to trial. Most commence by an agreed plea on indictment with an agreed narrative or plead guilty at first diet with an agreed narrative. It can be seen from the spreadsheets that as at 4 July 2012, of 60 closed cases placed on indictment, 55 or 92% were dealt with by agreed plea. Crown Counsel's Instructions are sought at the same time the case is reported to ensure the full facts are covered and no FAI will later be instructed following any prosecution. This quality of preparation avoids extensive and expensive court time, avoids unnecessary FAIs and means the defence know exactly what will be said. The defence can tailor their plea in mitigation and the sheriff usually has a copy of the narrative BEFORE the plea is tendered also giving him time to consider the full facts for sentence. However, we did receive (as narrated above) adverse comments by solicitors about the press release by HSD AFTER conviction.

197. It appears from the profile of cases within the unit that this process of agreeing the Crown narrative is time consuming. The defence are given disclosure as soon as the case comes in, even before any Crown prosecution work is done. This is very good practice. Meetings are regularly held with the defence from the outset to find what can be agreed and what plea can be hammered out but this seems to slow down the case coming in to court. It should be possible to push the defence to agree pleas and narratives more quickly. This would lead to fresher cases rather than cases being years old before they come into court. If cases were pushed through more quickly more cases could be dealt with, including the very complex ones.

198. We have a concern that the ongoing age profile of cases is an issue. Figures show the backlog is increasing.

199. The risk to the reputation of the HSD in the event of delays is high given the age profile of the cases.

200. Rather than wait to agree a plea in all cases we think some cases should be indicted into court (as is the norm in other mainstream criminal work). This would be a speedier process. To date only 4 cases have been taken to trial.

201. The overarching conclusion is that the creation of the Health and Safety Division was an appropriate response to growing specialisation in this field. The cases which are concluded are well prepared and presented but the concern is the time taken to conclude them. With the benefit of hindsight the new unit was somewhat put at an immediate disadvantage by agreeing to take over serious previous cases from Procurator Fiscal Offices, in many cases these were already elderly with little work done on them.