Justice Committee

Meeting date: Tuesday, December 13, 2016

Official Report 518KB pdf

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Crown Office and Procurator Fiscal Service

Agenda item 2 is an evidence session for our Crown Office and Procurator Fiscal Service inquiry. This is our sixth week of evidence taking for the inquiry. I welcome today’s witnesses. Gordon Dalyell is Scotland’s representative on the national executive committee of the Association of Personal Injury Lawyers; and Patrick McGuire is a partner in Thompsons Solicitors.

I refer members to paper 3, which is a note by the clerk; paper 5, which is a private briefing from the Scottish Parliament information centre; and the witnesses’ written submissions, which we very much appreciate. I invite questions from members.

Good morning, panel, and thank you very much indeed for your written evidence.

Mr McGuire, you comment in your written evidence that

“the COPFS treat the prosecution of health and safety crimes more like a civil court case than a criminal prosecution.”

Can you expand on the manifestations of that approach in respect of what are very important matters?

Certainly. It is a practice that my firm and I witness constantly when dealing with such cases. Having carried out research on the matter, including speaking to various criminal lawyers, I know that there is nothing in statute—there is no regulation or law—that directs that practice and explains why it takes place.

In practice, in the case of a health and safety breach in which a prosecution is being considered, if the organisation in question gives no more than a general indication that it might be willing to plead guilty to any charges, the entire process becomes entirely informal because it is not underpinned by any regulation or law, and there are often very lengthy negotiations between the COPFS and the organisation’s solicitors on what the indictment or charge says.

Ultimately, those negotiations can come down to what is called the narrative, which is the document that, if a company pleads guilty, is finally placed before the court and which details—often at a length of two, three, four or more pages—what has been agreed between the parties with regard to what happened. That is the very point of that document; it sets out what has been agreed in the course of the negotiations between the COPFS and the solicitors representing the company, but the net effect—

I am sorry to interrupt you, Mr McGuire, but is plea bargaining not part of the system? What is different about these cases?

The difference is, first and foremost, the length of time that is afforded to the negotiations and, secondly, the real, practical impact that that has on victims’ lives. As I highlight in my submission, in the past 12 months my firm has been instructed in more than 2,800 work-related matters in the broadest sense, including disease, and my own internal research shows that in the past 12 months only 11 cases have resulted in prosecutions. Five of those cases related to non-fatal accidents, and the average time from the crime being committed to a guilty plea—I point out that all 11 cases involved guilty pleas; none went to trial—was three years and four months, while the average time for cases involving fatal accidents was five years and three months.

This is not about bad cases making poor law; these cases are pretty representative. There are no outliers in those statistics. The practical impact is that victims—and, in fatal cases, the families of victims—have to put their lives on hold. Things are strung out, and very little information comes from the COPFS.

Another issue is that if things go on too long, the prosecution can be prevented from taking place at all. There are two recent examples of that. The first is the Rosepark disaster, in which the negotiations took such a long time that the partnership, as it was, was able to dissolve itself. That meant there was no partnership against which a criminal prosecution could be brought. The matter was extensively covered in the press, and the then Lord Advocate, Frank Mulholland, tried to fight on and bring a prosecution. However, he was always doomed to fail, because of the law as it was. That law has now been changed as a result of an act of Parliament, but the length of time that the negotiations took allowed the company to effectively evade the law.

The second example in which things sailed very close to the wind—indeed, I refer to the matter in my submission—is the case involving the firefighter Ewan Williamson. The period of time between the fatality and what was, ultimately, a guilty plea was almost six years, but in that time, we had the transition to the single service. It was spotted very late in the day—and only through the vigilance of the Fire Brigades Union—that the legislation that brought in the transition contained no provision for the new single service to be prosecuted for the wrongs of the former services. That gap was plugged just in time for the prosecution to go ahead.

I just wanted to highlight the real human issues that are involved in the length of time that these things take and the continued trauma that that causes, but it can also have significant and profound legal implications for any prosecutions that might be brought forward.

What was the nature of your engagement with the Procurator Fiscal Service during that period? Do you think that there was a sufficiency of staff to deal with these cases, or were there too few staff? Was it that the staff did not have sufficient skills?

I would not question the skills of the staff. Staff resources are certainly an issue but, as various members of my own firm and criminal solicitors who represent both sides in prosecutions have told me, there is also a mindset issue.

I am told—and it is my experience—that such cases are viewed less as criminal cases like other criminal cases and more as civil matters. Invariably, the solicitor who defends a company is the same solicitor who is instructed by their firm’s insurance company to defend in what might become a personal injury case. Such solicitors have more of a civil mindset, which tends to bleed into people’s attitudes and affect the nature of the negotiations, as they ought properly to be called, with the COPFS. That is at the heart of the issue.

11:30  

Our inquiry is about the Crown Office and Procurator Fiscal Service, and I know that there are wider frustrations with the system. In your submission, you compared the situation with what happens when individuals drive without insurance for their motor vehicles. Will you expand on that?

The matter is fully covered in the submission from APIL, too. We have laws that require certain people to have compulsory insurance, and failure to have that insurance is, by its very nature, a crime. We know how society views drivers who drive without insurance and we know that the COPFS comes down hard in bringing prosecutions against drivers who are found not to have insurance. In my experience, the same attitude does not apply to employers who do not have compulsory employer’s liability insurance—society does not seem to care.

Over the years, my firm and I have been involved in numerous personal injury cases in which failure to have insurance has come to light and in which, on our clients’ instructions, we have brought that to the prosecution service’s attention but absolutely nothing has been done and there has been no prosecution.

Why have there been no prosecutions? Is it neglect of duty?

I cannot say why, but the facts speak for themselves.

I come back to the point that I made in my submission about the need to be clear about our language—we are talking about health and safety crimes, not infractions or regulatory breaches. However, at the moment, I am afraid, they are not viewed in that way.

What would be the consequences of someone not having employer’s liability insurance if an incident happened?

There would be a fine.

But what are the consequences for the individual who wants to claim compensation?

I apologise, convener; I did not follow your question. If there is employer’s liability insurance, an injured worker will receive compensation if they are able to establish their case. If there is no insurance, the injured worker might have the opportunity to go against the company if it is solvent, but if it is not solvent, the person will not receive compensation. Of course, one could speculate, without incurring great criticism, that if a company is not doing what the law requires it to do by having compulsory insurance, it is far less likely to be solvent and able to pay compensation.

Are there notable examples of that? The issue does not seem to have penetrated public awareness. Do you want to come in, Mr Dalyell?

First, I thank the committee for inviting us to speak today.

In our submission we mentioned two cases, both of which cover the point about the lack of compulsory insurance and in both of which the effect was significant. In Campbell v Peter Gordon Joiners Ltd, a gentleman—he was an apprentice joiner—was injured in the course of his employment. He was working on a woodworking machine and, for some bizarre reason, his employer had an insurance policy that did not cover work with woodworking machines. When the gentleman was injured, he attempted to bring a claim against his employer, but the insurers declined to deal with the case because the situation was not covered by the policy. The injured worker then sought to sue the director of the company. The case went all the way to the Supreme Court, but he was unsuccessful, so the gentleman was left unable to claim compensation for a serious injury.

The second case that we mentioned is that of Kelly Stewart, who tragically lost her partner when he was killed in a diving accident. The employer did not have employer’s liability insurance and was found guilty of a breach of the Health and Safety at Work Act 1974. A civil claim was raised against him but, although a decree was obtained, we have been unable to enforce it. When the defender in that case appeared before the court, the sheriff specifically said that he would not impose a monetary penalty to allow the defender to pay some form of compensation to the family. That is yet to be achieved. There can be quite significant difficulties for families and for victims of accidents.

There is, therefore, a most definite case for having prosecutions as a deterrent to others.

In the fatal case that I mentioned, we asked the procurator fiscal’s office why it had not sought to charge the defender with not having compulsory employer’s liability insurance. The view was that it was not particularly relevant; it was not within the mindset.

That comes back to Mr Finnie’s point. If there is a criticism in relation to mindset, it relates to the importance given to having compulsory insurance for employer’s liability. As Mr McGuire said, we have such insurance for road traffic accidents, and a lot of the road traffic work that the procurator fiscal service carries out is about people not having insurance, whether or not there has been an accident. The same approach ought to be taken in employer’s liability cases.

Douglas Ross has a supplementary point.

Gordon Dalyell mentioned the cases of Campbell v Peter Gordon Joiners Ltd and of Graeme Mackie. His submission also mentions a fund of last resort. Will he give a bit more information about that, particularly in relation to levies?

You may be aware of the existence of the motor insurers’ bureau, which was set up several decades ago. All insurance companies pay a levy to the bureau to cover people who have been injured in a road traffic accident if the person who caused the accident has no insurance. The suggestion is that a similar fund be set up for victims of accidents at work, so that insurance companies would pay into a fund to cover situations such as those in the two cases I just described.

So it would be insurance companies, rather than employers, who would pay.

Indeed.

You also mention in your submission that companies that are generally less scrupulous—because if they do not take out one insurance, they will not be doing other things—have a financial benefit over other companies, because they are not paying out for such things.

Does setting up a fund of last resort not almost say that we will not be able to deal with the problem, so we will ignore it? There have only been two convictions, both in the same year. Does setting up a fund of last resort not do what you suggest the Crown Office is doing by ignoring the issue and trying to find an alternative source of funding? It does not get to the root problem that has been mentioned.

There should be a combination of responses. There is no reason why the Crown cannot be forceful in trying to ensure that the law is complied with. There are measures that could be taken in relation to companies taking out compulsory insurance, such as their being obliged to lodge a copy of an insurance certificate at the same time as lodging a company return.

That would not get over the issue in Campbell v Peter Gordon Joiners Ltd, because they would have been able to lodge an insurance certificate.

There could be an investigation into whether the certificate was sufficient, as it was not in that case. The Crown would have to investigate that. If, as a matter of routine, there were an obligation on a company to lodge a certificate at the same time as lodging a return, the Crown or the Health and Safety Executive could report companies who failed to do so.

To draw on the analogy with the motor insurance sphere, there is not any one answer. We are talking about regulating companies’ behaviour at the same time as ensuring that victims are not wronged by bad employers. The fund of last resort would provide an answer to the second point by ensuring that no one goes without proper compensation. It is to be commended for that reason but it is not a complete solution in itself, for the reasons that Mr Ross has highlighted.

We need to consider what is and is not publicly acceptable. There have been many road traffic examples over the years, from seatbelts to drink driving to driving without insurance. The world is a different place because of high-profile prosecutions and campaigns, so we need to address both.

On the competence of this Parliament, we are talking about insurance and a fund of last resort, and members of the committee might think that that is something that we can recommend but that we have no power over. However, it is important to remember that the motor insurers’ bureau scheme—the fund of last resort—that Mr Dalyell spoke about is a contractual arrangement between the Westminster Government and the insurance industry. It is my understanding of the Scotland Act 1998 that while the Scottish Parliament could not introduce legislation to enforce a fund of last resort, there is no reason why it could not enter into such a contractual arrangement if the insurance industry was willing to do so.

I have a final question for Mr Dalyell. You say in your submission:

“Latest research from the HSE shows that 94.3% of companies required to have insurance do”.

That is a very specific number, which you then go on to state equates to 164,000 employees. If we know about the 94.3 per cent and that the remainder do not have insurance, why cannot prosecutors go after them? Is the figure an estimate or is it a reliable figure that comes from drilling down to individual companies?

It is based on a report that the Institute for Employment Studies produced for the HSE in 2012—I can provide a copy of it to the committee. Interestingly, the figure of 94 per cent is the higher estimate; the lower one was 81 per cent. The study is based on a sample of 2,000 businesses that were asked whether they had employer’s liability insurance, of which 94 per cent said that they did. The reason why the figure might be as low as 81 per cent is that when the employers were asked to produce a certificate or refer to its terms, a number of them were unable to do so despite asserting that they had it. Therefore, doubts were raised in the report authors’ minds about whether those companies had compulsory insurance.

The figure of 160,000 is taken from the same report. It, too, is an estimate based on the sample of 2,000 employers.

I had some questions on insurance but they have largely been answered. On penalties for employers who are found not to have liability insurance, we have been told that a lot of them are not charged, so is it just that financial penalties are imposed on them?

Yes.

Your evidence talks about the very low rates of prosecution. I am interested to hear your opinions on why the number of prosecutions is so low.

It is primarily a question of resource. A number of witnesses who have already given evidence to the committee have commented on that and it is a matter of the priorities for the Crown and the Government. However, our position is that employees within the workplace deserve to be protected. If somebody goes out to work in the morning, they ought to come back in the same condition as when they left.

A number of serious breaches of health and safety legislation have taken place. In a number of cases, there are very serious injuries and, in others, there are not. However, to continue the road traffic analogy, we think that breaches ought to be investigated and assessed for prosecution by the Crown. Several thousand accidents are reported each year and we think that that figure is an underestimate for the reasons that we go into in our evidence. If we only prosecute 50 to 100 cases each year, that is too low—prosecuting a percentage as low as 1 per cent of reported accidents is very low.

I echo that. There is little doubt that resources are at the heart of the issue. The majority of employees in the COPFS who I deal with, particularly in the specialist unit, are absolutely committed. Subject to one point that I will return to in a moment, the law is generally robust and is there to be used, which is the point that I make in my submission. The very rich tapestry of health and safety regulations that we have in this country is so framed that the majority of accidents at work, certainly the majority of matters that members of APIL and Thompsons Solicitors see and that result in successful personal injury cases are, at the very least, prima facie, health and safety crimes. That tells you how small a number of prosecutions there are each year and that can only be because of resources.

It is a matter of priority, but the only way in which we will see accident rates drop, to achieve the aim that Mr Dalyell highlighted and which we echo 100 per cent—meeting people’s absolute right to go home from their work in exactly the same physical and mental condition as when they left home that morning—is to address the situation aggressively and to change attitudes. That can be done only by using criminal law as a deterrent.

In my submission, I referred to one area in which I think the law is lacking in a way that is reflected, to some extent, in prosecution levels; that is at the highest end—the law on corporate homicide. We have had an act of the Westminster Parliament since 2007, but there has not been a single prosecution in Scotland under that legislation. There is no doubt in my mind, or in the minds of those in every single trade union that I represent in this country, that the law is insufficient. It needs to be improved and if it was improved, there would be prosecutions for corporate homicide. That would have the razor-sharp deterrent teeth that we need in order to see behaviours regulated and changed.

11:45  

Thank you. As a follow-up, I was wondering whether there were any difficulties in providing evidence in some of those cases. I know that that has been an issue for some of the organisations that we have spoken to, such as the RSPB and Scottish Environment LINK; they have not had the evidence to be able to prosecute cases related to wildlife crime, for example. Is that a relevant point here, from your perspective?

Yes. Health and safety law can be quite complicated. One of the reasons why cases take as long as Mr McGuire said in his earlier evidence to Mr Finnie is because there are complex factual situations. Frankly, in many cases, the Crown does not have the resource to deal with that quickly. There is an equality of arms issue; insurance companies instruct solicitors and experts and will devote a lot of resource to cases, and there are times when the Crown is at a bit of a disadvantage.

It was interesting listening to the evidence from the Auditor General earlier on. There was a question from Mr Macpherson about the amount spent on specialist evidence. That is a matter that is worth looking at in the context of health and safety cases, a lot of which involve a high degree of expert evidence. That is something that companies that have been prosecuted and their insurance companies will spend a lot of money on. I wonder whether the Crown has the requisite resource to match that. That is one of the reasons why so many cases are dealt with by way of a plea bargain; because taking a matter to trial involves a level of resource and time commitment that, frankly, the Crown is not able to achieve with the current resources.

That was going to be my next question: does the Crown have the expertise to deal with those complex cases?

It does; there are some very experienced and able practitioners within the COPFS. It is just the level of expectation and the amount of work that they have to do.

I echo that. I agree that resources are at the heart of this, as I have said before. That is not to say that getting the evidence is a particularly impossible task; it is more about whether there are the resources to get the evidence. There is a very complex and well-established set of health and safety regulations in this country that, thankfully, has not yet been changed, so cases can be brought forward; the problem is finding the time and resources to build the case.

When I was preparing for this meeting, I spoke to all of our case handlers and on two occasions, referring to a couple of non-fatal cases in which there were prosecutions that took two or three years, the case handlers commented that they were “slam-dunk cases”—meaning that they were very strong cases in relation to the regulations—so they could not understand why they took as long as they did. I do not think that the problem is the law or getting evidence per se; it is having the people to build the evidence.

I accept that in civil law a case needs to be proved on the balance of probabilities, and there is no need for corroboration. A higher standard is required for criminal law, as well it ought to be, but it would and should be eminently achievable with the correct resources.

Does Mary Fee have a supplementary question on that?

I have a brief supplementary on health and safety. I want your opinion about the resource and support that are available for routine health and safety inspection and monitoring. I am talking not about what happens when an incident occurs and the Health and Safety Executive comes out but about the situation prior to that. Is enough financial support put into health and safety inspection and monitoring? Is that high enough up the agenda for the majority of workforces, companies and contractors? Is there a direct correlation between increasing numbers of incidents and decreasing numbers of routine inspections?

In a word, no—there are nowhere near enough resources. Health and safety is not given anywhere near enough priority. There is absolutely no doubt that, if more resources were given to the pre-emptive and proactive investigations that we are talking about, the numbers of workplace accidents would reduce.

It has long been said that a trade union workplace is a safer workplace—if required, I can produce statistics that have established that. However, that turns on the fact that, in a trade-unionised workplace, there is at the very least an active health and safety representative who can bring pressure to bear on an employer and, on occasion, even bring health and safety matters to the HSE’s attention.

However, as terrible as it is to say it, we have to live with the reality of the economic times that we find ourselves in. I do not think that £1 billion will be magically found to do what is required. That is why I said in my submission that it is time to be imaginative in finding legislative means by which we can place more power in the hands of the people who really know what is going on in workplaces and who are best placed to know whether employers are cutting corners or care about health and safety. Those people are the workers on the ground, who should be able to apply the remedies that I spoke about in my submission—specific implement, which involves saying, “Go and do this”, and interdict, which involves saying, “You’d better stop this.” Workers should be able to do that, with proper backing from trade unions, if the Health and Safety Executive cannot.

I return to delays around plea bargaining and the fact that there is no statutory time limit for bringing health and safety cases to prosecution. Is that a cultural or historical issue? Can you suggest any practical ways in which the Crown Office could improve the current situation? Would you like a statutory time limit to be brought in for the prosecution of health and safety cases?

To be fair to the Crown Office, it set up a health and safety division in 2009 that has had an impact, but it has been gradual because of the issue of resource. The Inspectorate of Prosecution in Scotland produced a couple of reports—in 2013 and 2015—and made a number of recommendations in the first report, most of which had been acted on by 2015.

As I said, a question of resource is involved. The inspectorate identified a workload of about 100 cases a year, which was regarded as a reasonable level for the division at the time. However, to put that in context, we know that there are several thousand accidents per year and that probably most of them involve some breach of regulations; not all of them go to prosecution, but certainly a number should in addition to the 50 to 100 that currently do. The Crown Office recognises the importance of health and safety, but it does not have the resources to devote to it.

Are you equating resources with staffing levels?

Indeed—the issue is about staffing levels and generally dealing with cases. It would be interesting to get the Crown Office’s view on time limits, which are a matter for it. Some cases can be complex, but others can be straightforward. To return to the motoring analogy, more prosecutions should take place for straightforward breaches of health and safety legislation as a deterrent. At the moment, most employers and insurance companies know that, in the absence of a fatality or very serious injury in a health and safety case, a prosecution is unlikely.

Would having a statutory time limit make the system more efficient, even from your point of view?

I am not convinced that that would be the case without adequate resource. You have heard evidence on the existing pressure on the system, where there are time limits in relation to common-law crimes and the prosecution of High Court and sheriff court cases. Introducing additional time limits into the system without resource would not necessarily work.

There remains an issue with perception and engagement, which could at least partly solve the issue that Rona Mackay highlights. Although there is no doubt that things have improved, my experience is that the clients my firm represents are left in the dark for long periods. There is not sufficiently regular communication and they are not sufficiently kept up to date with what is going on.

There is a lack of communication.

There is a complete lack of communication. Despite some improvements, we are a significant distance from where we need to be.

Maybe that is where timetabling, in the broadest sense, comes into effect—not as a statutory timeframe for bringing a prosecution but as a clear requirement on the COPFS to properly engage with victims, families and, when they are invited to do so, their solicitors at pre-arranged timetabled events. The COPFS should be clear and say that it will be three months, for example, before it can report back to victims and families, and at month 3 it should do so. If the period is to be six months, it should tell them that. Keeping victims and families informed and engaged would go a long way towards ensuring, if not restoring, some faith in the system. There is no such faith at the minute because of the lack of engagement.

Would Douglas Ross like to ask his substantive question?

My question kind of picks up from Rona Mackay’s questions. Gordon Dalyell’s submission says that the introduction in 2009 of a health and safety division in the Crown Office was a welcome addition and that its remit is

“to investigate and prosecute all health and safety cases.”

However, seven years after that addition, Gordon Dalyell and Patrick McGuire have come here with what I presume are the same complaints as they had when the division was introduced in 2009. If it is a welcome addition, why is it not working?

Resource. We made a freedom of information request and the Crown Office indicated that it receives something between 150 and 200 reports from the Health and Safety Executive and local authorities each year, of which it prosecutes between 27 per cent and 37 or 38 per cent. I have mentioned that each year many accidents take place that are in breach of regulations and should be prosecuted.

What was not happening prior to 2009 that is happening now? Do we have the same problems? A number of witnesses have said to us that, although the introduction of the new specialist unit in the Crown Office has helped, they still have the same concerns. My worry is that we keep saying that resource is a problem and we set up such units—this one has been established for seven years—but that does not seem to get to the root of the problems that you and your clients are still experiencing. Is the issue the unit? Is it the manpower in it? Is it the Crown Office in general? Where are the delays? I struggle to understand why the unit can be such a welcome addition when we still have the same problems. That is the point that I am getting at.

It is a welcome addition because it introduces an element of specialisation.

But it is not solving your issues with the number of prosecutions.

No. It needs additional resource.

So the unit is a welcome addition, but it is not working.

To be frank, the bar was so low pre-2009 that of course the unit was a welcome addition. It is entirely logical that, if a team of prosecutors who will specialise in and prosecute only health and safety crimes is brought together, that specialism will bring an improved understanding, so we would expect a better level of prosecution. However, it is important to remember that the bar was low.

I entirely agree that more needs to be done. You asked what we mean by resources, and undoubtedly manpower is a big issue in that. However, I would not be quite as enthusiastic as Mr Dalyell and would not say that the issue is only about resources.

I have highlighted on a couple of occasions that, from my perspective and that of the clients we represent, an issue remains with—I hesitate to use the word “attitude”, because that borders on the pejorative—the means by which the unit engages with clients and its modus operandi for doing so. There continues to be a problem that needs to be addressed, and perhaps it should be addressed in the way that I discussed with Mrs Mackay.

12:00  

I will move on to another issue. Mr McGuire mentioned the lack of—or little—information that comes from the Crown Office. The submission to our inquiry from the Jim Clark rally mentions an incident that happened several years ago. It says that 60 police officers took information and there was video footage of the incident, yet the organisation is still waiting for information. It is not just waiting on a report and a final response; letters from the organisation’s chairman to the Lord Advocate have gone unanswered. That is just one example. Is that repeated across your sector? Is the lack of correspondence at the highest level a theme? If people are going to the Lord Advocate and he is not responding, delays will occur and criminal investigations will be lacking while we wait for those responses.

The Jim Clark rally example is at the extreme end, but it is entirely representative of my firm’s experience of the modus operandi of the specialist unit.

You say that the example is at the extreme end, but it is well known, and the incident has been raised in the Parliament a number of times by my colleague John Lamont. Even with all that backing, the organisation is not getting anywhere with the Lord Advocate. Therefore, I imagine that one man and his solicitor would have even more trouble. That approach to such a high-profile incident is worrying for the general health and safety sector.

I agree entirely.

Your submission mentions that there is a problem with the language that we use. You finish by saying that we have to be careful with what we say and how we use language, but you do not offer any alternatives. What language should we be using?

As I think I said, we should call such incidents what they are—health and safety crimes. They are not breaches of regulations or infractions, but crimes that cause real damage to real people, and they have to be treated as such. We have to gear our entire system towards proper levels of prosecution, as well as towards proper levels of fines that would serve as a deterrent. In this context, the law has to serve as a deterrent to ensure that workplace accidents decrease.

Where does changing attitudes and language come in the priorities for addressing the concerns that you both raise in your submissions? Should we tackle that as a priority or will that come naturally if there are more successful prosecutions?

Tackling those issues is a priority. The overall principle must be that prevention is better than cure. The proper investigation and, where appropriate, prosecution of crimes—Patrick McGuire is right about that term—or breaches of the regulations is an important element of that, and the message to employers across the country needs to be enforced that such breaches will be treated as crimes and prosecuted in the appropriate circumstances.

I agree. It is not an aside to bring into the discussion the much misused and maligned term “elf ‘n’ safety”. At one end of the extreme, we are dealing with people belittling and making a joke of the rich tapestry of regulations that are there to protect people, to keep them safe and to ensure that they return home from work in the same physical and mental condition as before. How do we tackle that? Using the correct language is key to that, so that is 100 per cent a priority. That could be done quickly and, I hope, effectively.

Patrick McGuire said that the Jim Clark motor rally incident is at the extreme end. However, the Office of Rail and Road’s submission mentions that, in England and Wales, the average time from the start to the conclusion of a prosecution case is 12 months, whereas in Scotland, the average time is 35 months. Perhaps if that figure were dwelled on or highlighted more, it might put the whole problem in perspective a bit more.

Is the main reason for the delays in prosecutions the lack of evidence? Is a different burden of proof required for health and safety cases, or are there loopholes that allow organisations and individuals to get through the process without being prosecuted?

The burden of proof is the same; the Crown has to prove the case beyond reasonable doubt. One of the issues is that, for the reasons that we have already discussed, it tends to be the more serious cases that are investigated and, as a result, there can be matters of complex fact and evidence.

There is a culture of negotiation between the Crown and the defence. The Inspectorate of Prosecution in Scotland suggested in its report that up to 92 per cent of cases are resolved by way of a plea bargain; very few cases go to trial. One of the observations in the original report was that relatively few fiscals had experience of running health and safety trials, and I think that in cases that are dealt with by the health and safety division there is a culture of agreed pleas. It takes time for a plea to be agreed. The Crown has to investigate and get its own expert evidence; the defence is well briefed, well resourced and able, if not to persuade the Crown to drop the case completely, to come to what it regards as an acceptable plea.

I suppose that that comes back to the point that Mr McGuire made about how people talk about “elf ‘n’ safety” and how health and safety is viewed. We have moved to a compensation culture and health and safety is viewed not as a crime but as a question of how much money someone can get. How much of an impact has that had?

I entirely agree. That version of health and safety is also the stuff of spin. Leaving that aside, I have no doubt that it has had an impact.

It is interesting that it is invariably the solicitors who are instructed by an organisation’s insurance company to have at least one eye on any possible compensation claim coming down the line who will be engaging in the informal negotiations. Therefore, those negotiations are as much about having an eye on a possible compensation claim and trying to mitigate that as they are about the criminal prosecution. People know that they are eventually going to plea out—to use the Americanism—and the process is far less about reducing the fine and considering guilt than it is about what the charge says, what the narrative says and whether compensation lawyers can march in. That is invariably my experience when we start to look at the charge and what has been taken out of it—those one or two wee things that have been picked away. That unquestionably happens with an eye on the compensation process.

To come back to your question about the length of time that is taken, I do not know whether that is only about the negotiations, but they are certainly a significant factor. If one thing can come out of this inquiry that would make a big difference in driving things forward, it would be to deal with that and find a way whereby the COPFS will see such a case not as a civil negotiation but as a crime that has to be prosecuted, principally to deter future injuries.

I want to make a point on that. I refute any suggestion that we have a compensation culture. A review was carried out by Sheriff Principal James Taylor a few years ago, which looked at expenses and funding in civil litigation; those matters will probably come to this committee in the next few months. In his report, Sheriff Principal Taylor explicitly found that there was no evidence of a compensation culture in Scotland. He raised the possibility of there being such a culture in England and Wales—although he doubted it—but in Scotland there is no evidence to support such a suggestion. It is a myth that is put out to support certain points of view on the part of the insurance industry.

Members are aware from our paper that there are between 6,000 and 7,000 reported workplace accidents each year. The true figure for industrial accidents is much higher than that, but the figures to bear in mind are that only 4,000 or so industrial accident claims are intimated each year and around 1,500 to 1,600 workplace cases are raised in court each year. If we take the analogy of a pyramid, we have the number of accidents at the bottom—the accidents that are reported—then the number of cases that go ahead to a claim and, at the top, the number that go to court. It is a decreasing number. There is clear evidence to suggest that there is no compensation culture in Scotland.

Thank you for that clarification.

I come from a criminal justice background, and one thing that the inquiry has done for me is highlight the vast scope of the COPFS and the pressures that are on it, particularly given the current resources in these times of austerity—that is well documented. For what it is worth, I believe that health and safety crimes should be treated robustly and prosecuted, where necessary.

I would like to ask the panel for its view on a wider issue. You have mentioned several times that people should return from work in the same physical and mental state in which they left to go to work. I worked in a busy social work office for 12 years and, over the years, many friends and colleagues of mine went off work with various degrees of mental and emotional stress. How wide should the scope of health and safety be? There would be massive resource implications if it were broadened. I know that you have mentioned mental wellbeing, but I get the impression that, in the main, health and safety offences are more about people who have been injured. I repeat that such offences should be dealt with robustly. How wide do you think that the concept of health and safety should be? What role should the COPFS have in that?

That is an important question. In our submission, we highlight the economic impact of accidents at work, on which the Health and Safety Executive has done a lot of research. It produces an annual report that looks at the financial impact on society. We mention that the cost to the United Kingdom is about £4.9 billion and that the cost to Scotland is £541 million. Those are the figures for 2013-14; the 2014-15 figures have just been released. The cost to Scotland is now about £490 million a year, but that is only the cost of workplace accidents. There is an additional cost, which is far higher, in respect of people who are absent from work through ill health that is caused by stress or mental health difficulties. Therefore, the issue has a significant effect on our economy and our society.

The HSE estimates that, annually, 16,000 people across the UK are permanently withdrawn from the labour market as a result of accidents at work or ill health. The Scottish figure is probably between 1,500 and 2,000 people a year.

Are you aware of the Scottish work-related deaths protocol? We have received a submission from Action for a Safe and Accountable People’s NHS that says that the protocol is not being used properly and that that is having “a multitude of consequences”, including a loss of important evidence. Are you aware of the protocol? Do you have any experience of it in operation?

No.

No.

Thank you for that. That concludes our questioning. I thank you both for attending.

Before we move on to the next item on the agenda, I suspend the meeting briefly to allow the witnesses to leave.

12:13 Meeting suspended.  

12:16 On resuming—