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    SCOTLAND H&S PROSECUTION SYSTEM UNDER SCRUTINY

    Major concern over excessive delay in concluding prosecution cases

    The Crown Office and Procurator Fiscal Service (COPFS) is the sole prosecuting authority in Scotland and is also responsible for investigating sudden deaths and complaints against the police which are of a criminal nature.

    The Inspectorate of Prosecution in Scotland (IPS) is the independent inspectorate for the COPFS and all IPS reports are be published. It has been reported by The New Scotsman that IPS Chief inspector Joe O’Donnell said of the latest report:

    “We found that the cases disposed of were of high quality, but our concern was the length of time taken to conclude them. Our recommendations, therefore, focus on ways to speed up the process.”

    Laura Cameron, of lawyers Pinsent Masons told the NS:

    “It is a traumatic experience for surviving victims, their families and witnesses who are caught up in a health and safety incident, and to have a case hanging over them for years adds to their stress.”

    The Crown Office said progress is being made and that significant enhancements have been made in the prosecution of health and safety cases since the division was established in 2009. 

    Work done to a high standard but prosecutions ‘taking years’

    The IPS report on the Health and Safety Division includes the following findings (bolding not in report):

    1.  The selection of the Health and Safety Division as a topic for inspection was made in the context of growing specialism within the Crown Office and Procurator Fiscal Service (especially following the move to Federation working with function based work rather than geographical responsibility).
    2. Scotland’s current and previous Law Officers have been active in promoting greater specialisation and the Health and Safety Division seemed a suitable candidate to be made into a specialist unit. Accordingly the specialist Health and Safety Division was established in 2009. This mirrored greater specialisation on the part of defence lawyers especially in this field.
    3. The major conclusion is that the work completed by the division is done to a high standard and favourably commented on by many contributors to our report. The existence of the unit made for early meaningful discussions and good liaison with Health and Safety Executive and other reporting agencies.
    4. The apparent focus of the division is to obtain pleas of guilty, produce agreed narratives of events for court (commented favourably on by various sheriffs to whom we spoke) and thus potentially save court time. This also has the benefit of saving time and inconvenience to witnesses.
    5. The downside of this policy was, however, that few cases went to trial and the development of the law in Scotland in this area (and the experience of those in the unit) suffered as a result. The presumption appears to be to initially regard cases as suitable only of proceeding on indictment and we felt there could be better targeting of the simpler cases which could proceed in the summary courts rather than join a queue. An effective ‘triage’ system would be of benefit.
    6. Our major concern was the delay in concluding cases, several of which were several years old and the ‘time to clear’ figure of current work was increasing rather than decreasing. There has been growing public concern about delays in this field.
    7. We found there was some confusion about the type of case the new Health and Safety Division would take on board with potential confusing overlap with in particular the recently created Scottish Fatalities Investigation Unit.
    8. Additionally the IT system was not configured to ‘direct’ health and safety cases to the unit and management information was sketchy. All of this contributed to lack of clarity, double handling and our biggest concern – delay in processing the cases. The normal IT and management tracking devices were largely absent with too much reliance on internal spreadsheets which were not always up to date.
    9. We also found staff turnover to be a matter of concern. This was high which we feel exacerbated the problem about delay. Many of the cases are complex and staff leaving mid-case led to inefficiency and delay as new members had to go over the same ground. Additionally the perfectly worthy attempt to create local geographical centres to deal with local cases was largely abandoned because of the need to give priority to certain types of cases irrespective of where the staff were located.
    10. We took the view (and so recommend) that greater use could be made of existing staff especially those at fairly senior grades. Increased delegation to these staff of crucial decision making would speed up the process and improve the job satisfaction of those involved. Although praise worthy in concept the need for all cases to be channelled into a single decision point inevitably led to delay and in some cases meant action could no longer be taken because of the time taken to approve of decisions.
    11. The perception of the unit by outside agencies including the Health and Safety Executive is generally very good. No-one doubts the commitment of those involved. However, delay was a major cause of concern for some especially victims and next of kin. The Victim Information and Advice Officer in Health and Safety Division did a very good job of keeping them informed but it was too frequently on the basis of no real progress.
    12. We make 38 recommendations mainly intended to speed up disposal of cases with better use of existing resources and with better management information and tracking.

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