INVESTIGATION AND INVESTIGATION AND PROSECUTION OF WORK PROSECUTION OF WORK

RELATED DEATHS IN RELATED DEATHS IN SCOTLANDSCOTLAND

THE ROLE OF THE PROCURATOR FISCAL

THE CROWN OFFICE AND THE CROWN OFFICE AND PROCURATOR FISCAL SERVICEPROCURATOR 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 PROSECUTIONPUBLIC PROSECUTIONThe 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 PROSECUTIONPUBLIC 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 SUDDEN, SUSPICIOUS OR UNEXPLAINED DEATHSUNEXPLAINED 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 DEATHSWORK 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

Role of Procurator FiscalRole 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

PRECOGNITIONPRECOGNITION

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

PRECOGNITIONPRECOGNITION

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

PRECOGNITIONPRECOGNITION

The end productThe precognition

– Precognition statements– Copy productions– Discussion of the facts– Discussion of the law– Conclusions– Recommendations

DECISION MAKINGDECISION 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)

ACCUSEDACCUSED

Body corporateIndividual

– self employed– managers– employees (Sec 7)– Sec 36(act or default)– Sec 37(director, manager,secretary/consent,

connivance,neglect)

CHARGESCHARGES

What can be proved to the required standardWhat charges best reflect the level of

wrongdoingAdvice and guidance from HSEStatutoryCommon Law

FORUMFORUM

Which courtSheriff SummarySheriff and JuryHigh CourtChoice

– gravity– history– penalty

PENALTYPENALTY

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 DEATHSOFFSHORE DEATHS

Dedicated Senior member of legal staffHigh level of expertiseVery close working relationship with HSE

and PoliceBased in Aberdeen

MAJOR INCIDENTSMAJOR INCIDENTS

Role of Procurator FiscalResponse to declaration of Major Incident

– Operational– Tactical– Strategic

MortuaryMediaLiaison/consultation

VICTIM INFORMATION AND VICTIM INFORMATION AND ADVICEADVICE

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”

www.corporateaccountability.org

John Blackburn

HSE Principal Inspector

HSE and the Investigation of HSE and the Investigation of Death in ScotlandDeath in Scotland

Role of HSE and LAsRole of HSE and LAs

Role of HASWA enforcing authoritiesOrganisation in ScotlandEnforcement of health and safety lawPolicy on work related deathsIndividualsThe investigation

Role of HSE/LA contd.Role of HSE/LA contd.

Liaison with the policeHSE and culpable homicideContacting the bereavedReporting to the fiscalPenalties

Enforcing HASWAEnforcing 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

EnforcementEnforcement

Purpose of enforcement is to ensure risk properly controlled and when appropriate to punish offenders

Inspectors can give adviceServe Improvement NoticesServe Prohibition NoticesReport offences to Procurator Fiscal

PolicyPolicy

HSC have published enforcement policy – available on web site www.hse.gov.uk

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 individualsProsecution 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 defaultSection 37 - director or senior officer

offence through their consent or connivance or attributable to their neglect

InvestigationInvestigation

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/PoliceHSE/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 homicideCulpable 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 bereavedContacting the bereaved

HSC policy that we contact bereaved for all work related deaths

Coordinated with police and fiscalWe will offer to meet family to explain our

role and how investigation will proceedBut cannot give information that may

prejudice any prosecution

Reporting to the FiscalReporting 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

PenaltiesPenalties

• 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”

www.corporateaccountability.org

Najma Rasul, CCA Caseworker

Differences between England and Scotland in the investigation and Prosecution of

work-related safety issues

INTRODUCTIONINTRODUCTIONCCA 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 Health and Safety ExecutiveExecutive

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 POLICEROLE OF POLICE Similarities

– Criminal investigation

Differences

– England Manslaughter

– Scotland Homicide

– Scotland No 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 FiscalRole 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 FAI v Inquests

• Similarities- Evidence in Public- interested parties can ask questions

Differences– Extent of Mandatory Inquiry

Eng/Wales All reportable deaths Scotland - not deaths of members of public

- Not mandatory is H&S prosecution

- Level of Inquiry• Scotland Much wider

“Safety and Corporate Criminal Accountability in Scotland”

www.corporateaccountability.org