INVESTIGATION AND PROSECUTION OF WORK RELATED DEATHS IN SCOTLAND THE ROLE OF THE PROCURATOR FISCAL

THE CROWN OFFICE AND PROCURATOR FISCAL SERVICE The Crown Office and Procurator Fiscal Service provides Scotland’s independent public prosecution and deaths investigation service. Department of the Scottish Executive headed by Lord Advocate whose independence is enshrined in the Scotland Act 1998 Sec.48 Procurators Fiscal are the Lord Advocates local representatives 48 offices in 11 areas HQ Crown Office Edinburgh

PUBLIC PROSECUTION The department is the sole prosecuting authority in Scotland and is responsible for making decisions about bringing prosecutions for almost all criminal offences. It is the responsibility of the Procurator Fiscal to investigate all crimes or suspected crimes made known to him which have been committed or may have been committed within his jurisdiction.

PUBLIC PROSECUTION It is the responsibility of the Procurator Fiscal to investigate all crimes or suspected crimes made known to him which have been committed or may have been committed within his jurisdiction.

SUDDEN, SUSPICIOUS OR UNEXPLAINED DEATHS The Procurator Fiscal has a duty to investigate sudden, suspicious or unexplained deaths and where necessary to report these to Crown Office for further consideration

WORK RELATED DEATHS Role of Health and Safety Executive Role of Police – To carry out preliminary enquiry on behalf of the Procurator Fiscal – To preserve evidence – To have the body removed to the mortuary – To report to the Procurator Fiscal Role of Procurator Fiscal

On receipt of death report from the Police – Post Mortem – Toxicology – Expert – Factual On receipt of HSE report – Discussion – Advice/guidance Liaison with HSE/Police/VIA Protocols

PRECOGNITION The purpose of precognition – The prompt,thorough and effective investigation of the case which allows a full, fair and effective consideration of the evidence and proper presentation of the evidence in court by the prosecutor

PRECOGNITION The nature of precognition – Interview of all key witnesses, gathering together of all relevant productions, documents and materials to ascertain the evidence available to establish what happened, how it happened and who, if anyone was responsible

PRECOGNITION The end product The precognition – Precognition statements – Copy productions – Discussion of the facts – Discussion of the law – Conclusions – Recommendations

DECISION MAKING Precognition Sufficient credible and reliable evidence from at least 2 independent sources to prove beyond reasonable doubt that a crime known to the Law of Scotland has been committed and the identity of the person who committed the crime and that it is in the public interest to proceed Who(accused), what(charges),where(forum)

ACCUSED Body corporate Individual – self employed – managers – employees (Sec 7) – Sec 36(act or default) – Sec 37(director, manager,secretary/consent, connivance,neglect)

CHARGES What can be proved to the required standard What charges best reflect the level of wrongdoing Advice and guidance from HSE Statutory Common Law

FORUM Which court Sheriff Summary Sheriff and Jury High Court Choice – gravity – history – penalty

PENALTY For statutory offences same for High Court and Sheriff and Jury For common law offences – High court life and unlimited fine – Sheriff and Jury 3 years and unlimited fine(soon to be 5 years)

OFFSHORE DEATHS Dedicated Senior member of legal staff High level of expertise Very close working relationship with HSE and Police Based in Aberdeen

MAJOR INCIDENTS Role of Procurator Fiscal Response to declaration of Major Incident – Operational – Tactical – Strategic Mortuary Media Liaison/consultation

VICTIM INFORMATION AND ADVICE Part of Crown Office and Procurator Fiscal Service Close working relationship with – Procurator Fiscal – Police Family Liaison Officers – Reporting Agencies Coordination

“Safety and Corporate Criminal Accountability in Scotland”

John Blackburn HSE Principal Inspector HSE and the Investigation of Death in Scotland

Role of HSE and LAs Role of HASWA enforcing authorities Organisation in Scotland Enforcement of health and safety law Policy on work related deaths Individuals The investigation

Role of HSE/LA contd. Liaison with the police HSE and culpable homicide Contacting the bereaved Reporting to the fiscal Penalties

Enforcing HASWA HASWA – Health and Safety at Work Act 1974 Enforcement divided between local authorities and HSE HSE – FOD, HID (Land Division and Offshore Division),RI, NSD Inspectors have powers to inspect/investigate health and safety offences

Enforcement Purpose of enforcement is to ensure risk properly controlled and when appropriate to punish offenders Inspectors can give advice Serve Improvement Notices Serve Prohibition Notices Report offences to Procurator Fiscal

Policy HSC have published enforcement policy – available on web site HSC policy that all work related deaths be investigated (unless exceptional circumstances) HSC policy that prosecution presumed where death was result of breach HSC policy to contact the bereaved In Scotland final decision on prosecution with Fiscal Fiscal cannot direct HSE but policy to assist and cooperate

Prosecution of individuals Individuals can be prosecuted as self employed, managers or employees Section 7 – employee fails to take reasonable care for health and safety Section 36 – offence through act or default Section 37 - director or senior officer offence through their consent or connivance or attributable to their neglect

Investigation HSE incident investigation selection criteria All work related deaths to be investigated Investigation usually starts within 24 hours, is coordinated with the police Size of investigation proportionate – can call on forensic resources as needed Report to Fiscal with recommendations and evidence to support any prosecution of HASWA offences

HSE/Police There is no formal protocol in Scotland for liaising with police at work related deaths Liaison is on case by case basis Investigation coordinated, but report separately to the Fiscal Both will interview witnesses. Police tend to focus on event/ HSE on management system and technical issues as well as immediate circumstances

Culpable homicide HSE inspectors not empowered to investigate culpable homicide Inspectors are guided to be alert to possibility Inspectors should then raise their concern with the police/fiscal to take over the investigation HSE could then help with technical aspects if requested

Contacting the bereaved HSC policy that we contact bereaved for all work related deaths Coordinated with police and fiscal We will offer to meet family to explain our role and how investigation will proceed But cannot give information that may prejudice any prosecution

Reporting to the Fiscal If recommending proceedings will submit a prosecution report with all evidence and inspectors reports including legal discussion Report becomes property of Fiscal and is not disclosable If not recommending prosecution will send report to Fiscal outlining the circumstances and saying why we do not consider prosecution appropriate We normally report within 4 months depending on complexity of investigation

Penalties  Summary cases:  - Regulations £5,000  - HASWA £20,000  - 6 months some offences  Solemn procedure:  - Unlimited fine  - 2 years some offences

“Safety and Corporate Criminal Accountability in Scotland”

Najma Rasul, CCA Caseworker Differences between England and Scotland in the investigation and Prosecution of work-related safety issues

INTRODUCTION CCA CASEWORK Joseph Rowntrees Charitable Trust Free, independent, confidential Advice and assistance on investigation and prosecution issues arising out of death England, Wales - but also Scotland TALK Differences between England/Wales and Scotland Possible Advantages/Disadvantages of difference

Health and Safety Executive Similarities: Preventative inspections, investigation, enforcement of notices. Differences: – England - HSE involved in Prosecution – Scotland - Role of Procurator Fiscal and Crown Office Implications: – Possible advantages: Focus on Inspection/Investigation Independent scrutiny of prosecution decision HOWEVER –Crown Office lower prosecution rates?

ROLE OF POLICE Similarities – Criminal investigation Differences – England Manslaughter – Scotland Homicide – ScotlandNo Protocol of Liaison on Work-related Deaths Protocol of Liaison – Requires investigation of all work-related deaths as potential manslaughter Impact of Lack of Protocol

Role of Procurator Fiscal Similarities to Crown Prosecution Service – Responsible for prosecutions Differences – Overall control of investigation – Responsibility (with Crown Office) for making Prosecution Decisions; – Policy of not providing reasons for decisions not to prosecute; – Decision on whether Fatal Accident Inquiry

FAI v Inquests Similarities - Evidence in Public - interested parties can ask questions Differences – Extent of Mandatory Inquiry Eng/WalesAll reportable deaths Scotland- not deaths of members of public - Not mandatory is H&S prosecution - Level of Inquiry ScotlandMuch wider

“Safety and Corporate Criminal Accountability in Scotland”