Health and Safety in Scotland

CORRECTED TRANSCRIPT OF ORAL EVIDENCE    To be published as HC 1344-vii

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

 SCOTTISH AFFAIRS Committee

HEALTH AND SAFETY IN SCOTLAND  

WEDNESDAY 14 DECEMBER 2011

LORD ADVOCATE, frank mulholland qc, and elaine taylor

Evidence heard in  Public Questions  780 - 873

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Oral Evidence

Taken before the  Scottish Affairs Committee

on  Wednesday 14 December 2011

Members present:

 Mr Ian Davidson (Chair)

Mike Freer

Graeme Morrice

David Mowat

Mr Alan Reid

Lindsay Roy

 ________________

 Examination of Witnesses

Witnesses: Lord Advocate, Frank Mulholland QC, and Elaine Taylor, Head of the Health and Safety Division, Crown Office and Procurator Fiscal Service, gave evidence.

Q780 Chair: Welcome to this meeting of the Scottish Affairs Select Committee. As you will be aware, we are having an investigation into health and safety in Scotland. We have taken evidence from a number of groups and organisations so far. It would be helpful if you started off by telling us who you are and how your role impinges upon health and safety.

Frank Mulholland: I am Frank Mulholland, Lord Advocate. I am in charge of all prosecutions in Scotland. I was partly responsible for setting up the Health and Safety Division in the Crown Office and Procurator Fiscal Service, based on my experience as Crown counsel. I personally prosecuted Transco in 2005, and was involved in ICL and those parts of the major health and safety cases in Scotland. My experience in dealing with those types of cases in my mind generated the need for specialisation to be brought to health and safety cases, and that spawned the Health and Safety Division, which was set up in March 2009. That is where my interest in health and safety arises. I have since been appointed a Law Officer. I was Solicitor-General in the last Parliament; I am now Lord Advocate. I have kept up a particular interest in health and safety cases and law. I spoke recently at the STUC’s seminar in Glasgow on health and safety matters. I superintend the work of the unit. Elaine, to my left, has been in charge of the unit since its inception, so she has great specialist knowledge of health and safety prosecutions in Scotland. I thought it would be beneficial to the Committee for Elaine to be present to give you an understanding of how we deal with health and safety cases in Scotland.

Q781 Chair: Do you want to add anything to that?

Elaine Taylor: No. I think the Lord Advocate has given an adequate introduction.

Q782 Chair: Considering the number of fatalities and reported major accidents in Scotland, do you think you are prosecuting enough cases?

Frank Mulholland: Perhaps I may give you some figures since the unit was set up. Some 219 cases have been, or are being, dealt with by the unit. Of those, 78 have concluded and 77 have resulted in convictions. That is a conviction rate of about 99%. There are 116 live cases under consideration and being worked on as we speak, of which 10 resulted in fatal accident inquiries. Of the 219 cases, no proceedings have been taken in 15, so that is about 7% of the total. If we break down the 15, in six cases we could not take proceedings because the company was no longer trading; in another five we could not take proceedings because there was insufficient admissible evidence; and in only four of the 15 could we have taken proceedings but for various reasons decided not to do so. Therefore, the effective rate at which no proceedings were taken in those 219 cases dealt with by the unit was 1.83%.

Q783 Chair: But the point we want to pursue is whether or not you are prosecuting enough cases, not how successful you are in the ones you do prosecute. It has been suggested to us that you have a very high success rate in your prosecutions because you have chosen only the slam dunk ones-the straightforward, easy ones. A success rate of 94% or 99% in anything has to raise suspicions about cherry picking.

Frank Mulholland: These are cases reported to the Crown. It is not a matter of saying we do not want the case; if it is reported to the Crown, we take it. Of the 15 of the 219 in which no proceedings were taken, in only four could we have taken proceedings. I think that demonstrates that that allegation or suggestion is without foundation. I will give you another personal example. Transco could have been prosecuted in England on a number of occasions. There were a number of major gas explosions in England and Wales where no proceedings were taken by the Health and Safety Executive, which can mount prosecutions in that jurisdiction. Following the Larkhall gas explosion in 1999, the Health and Safety Executive, working with the police and the Crown, looked not only at the cause of that explosion but the company’s record in dealing with ductile iron replacement, record keeping, cast iron replacement and risk management since the company’s inception in 1986. That trial was fought tooth and nail for seven months and resulted in a conviction and the highest fine ever imposed by a UK court.

If the suggestion is that we are picking slam dunks, to use that terminology, that is certainly not one. We could have picked a lot easier ones and saved ourselves a lot of hard work. I hope the statistics and the example I have given you demonstrate that we are not about picking just the easy cases. A number of current live cases are very complex, which can sometimes be the nature of health and safety cases. A lot of them are very complex and require expert evidence. We are not in the business of taking just the easy cases; we deal with what is reported to us. If we have sufficient admissible, credible and reliable evidence, and it is in the public interest to prosecute, I give you the reassurance that we will prosecute.

Q784 Chair: You seem to be suggesting that the problem which has been identified about not enough cases being prosecuted is not because of your decision to prosecute but because not enough are being reported to you. Is that a fair way of looking at it?

Frank Mulholland: You have to understand how health and safety is structured in Scotland. Procurators fiscal and I have the power to instruct the police to conduct an investigation regardless of whether or not they want to do so. Procurators fiscal and I do not have the power to instruct the Health and Safety Executive to conduct an investigation, except in relation to work-related deaths because the retained function of the Lord Advocate includes the investigation of fatalities. I can instruct the Health and Safety Executive and the police to investigate a work-related death; but for a work-related injury, we are dependent on the Health and Safety Executive conducting an investigation and reporting it to the Crown. I cannot require that of the Health and Safety Executive.

Q785 Chair: Are there circumstances in which you have not instructed the police or Health and Safety Executive to investigate a workplace death, or have they all been investigated?

Frank Mulholland: If it is a work-related death and a potential breach of duty has caused it, I cannot think of any cases that have not been investigated by the Health and Safety Executive and the police under the Work-related Deaths Protocol which is in place. That protocol is an agreement among the Health and Safety Executive, ACPOS, the Association of Chief Police Officers in Scotland, the Maritime and Coastguard Agency and British Transport Police. In relation to work-related deaths, it gives the police initial primacy in the investigation, because you always have the potential for corporate homicide, common law culpable homicide charges and potential breaches of sections 2 and 3 of the health and safety legislation. To answer your question directly, I cannot think of any circumstances where there has been a work-related death with a potential breach of duty that has not been investigated.

Elaine Taylor: The Health and Safety Executive is not the enforcing authority for every locus in which a work-related death may take place, so we also link in the police and local authorities depending on the location of the death. There are circumstances in which perhaps the Health and Safety Executive, in terms of their enforcement policy, would see a work-related death as not being strictly a matter for themselves at the outset but would advise on it. For example, there could be a care home issue in which we involve the Care Inspectorate and Health and Safety Executive. We work in partnership with a number of organisations in addition to those who have signed up to the Work-related Deaths Protocol.

The Lord Advocate makes an important point that, since the inception of the division, we are the driving force at the outset and are involved virtually from the reporting of the death to the fiscal. On the first day the Health and Safety Division will be brought into it and work with the partner agencies to take forward the investigation.

Q786 Chair: To be clear, for any work-related death, you would have the opportunity to instigate an investigation if one was not already under way.

Frank Mulholland: Yes.

Elaine Taylor: Primarily, the police at the outset will have primacy in that.

Q787 Chair: But if somebody has not already started to pursue something, you have the opportunity to do so.

Frank Mulholland: That is right. One of my retained functions is the investigation of deaths, so in those circumstances, I can instruct investigations into that death.

Q788 Chair: Are there any circumstances in which you have had to use that power when a work-related death was not being pursued by someone else?

Frank Mulholland: It does not come to that, because there is a lot of liaison and discussion among health and safety, the police and British Transport Police. It doesn’t really come to that.

Q789 Chair: I am just trying to be clear. We are looking at this from the outside. You have a reserved power to instruct investigation if it is not already being investigated. I was seeking to clarify whether or not you had ever had to do it, but I think you are making it clear that you have not; it has always been investigated by somebody else.

Frank Mulholland: Never say never, but I cannot think of any circumstances where that has happened.

Q790 Mike Freer: The Health and Safety Executive can recommend prosecution. What percentage of their recommendations or referrals to you do you choose not to proceed with?

Elaine Taylor: They are really the figures to which the Lord Advocate referred. If there is a sufficiency of evidence and it is in the public interest to prosecute, that is what we do.

Q791 Mike Freer: If the Health and Safety Executive refer 100 cases to you, on average how many would you decide not to proceed with?

Elaine Taylor: It is the figure that you were quoted.

Frank Mulholland: The vast majority are Health and Safety Executive-reported cases. In about 7% of cases reported to us over a two-and-a-half-year period, no proceedings were taken. Breaking that down, in the vast majority those companies are no longer trading, so it is not in the public interest to prosecute a nonentity. For the vast bulk of those 15 cases, we do not have sufficient evidence. In Scotland, we require corroboration-evidence from two independent sources. There were only four where we did not prosecute, and that is about 1.83% of cases reported to us.

Q792 Mike Freer: Why would the Health and Safety Executive recommend a prosecution if they knew it did not meet your criteria?

Frank Mulholland: I am not an expert on the English system, but I can tell you what the Scottish system is. The Health and Safety Executive, when reporting a case to us, will recommend whether or not proceedings should be raised. That is not the ultimate determinant of whether or not proceedings should be raised, because the Crown is the sole prosecuting authority in Scotland, and ultimately the decision rests with me or Crown Counsel, or prosecutors in the Health and Safety Division will take those decisions.

Q793 Mike Freer: Would it be helpful to explain to them in some format, "This is the entry bar at which we would consider a case", and stop them sending you cases which you cannot prosecute?

Elaine Taylor: I think they are well aware that the criterion required is that there be sufficient and corroborative evidence. However, sometimes there is a disagreement over the quality and sufficiency of evidence. I can think of two cases where we received a recommendation to prosecute, but, after the involvement of our division and further investigation, there was agreement with the Health and Safety Executive that the public interest would be better served by a Fatal Accident Inquiry rather than a prosecution.

Q794 Mike Freer: Has the 7% drop-off rate been static over the last few years?

Frank Mulholland: It is roughly that. These are the statistics or data collected by the Health and Safety Division. I do not have with me the comparative data for the world before the Health and Safety Division. To add some colour to the point you are making, when a case is reported to us by the Health and Safety Executive, that is not the be-all and end-all of the investigation, because it is open to the Crown on many occasions to instruct further investigation. I can think of a number of cases in which I have been personally involved where we have had to obtain expert evidence about risk assessment, technical evidence and engineering evidence about explosions and whatever. Following the added value of the additional investigation, there will be ongoing discussions with the Health and Safety Executive as to whether or not their recommendation still stands in light of the new information that has been obtained. It is very much a fluid process and certainly not a linear one. The way we did health and safety prosecutions before the Division was set up was very much a linear process; health and safety did their bit and reported it to the Crown; the Crown did their bit and let the Health and Safety Executive know what their decision was at the end of the day. The Health and Safety Division has a much more holistic approach. They are working together with the Health and Safety Executive and/or the police and other agencies from the outset of the investigation to make sure it is structured and moulded in a particular way, so that everyone knows what the issues are and what additional lines of investigation are required. We are certainly seeing the benefits of this in better prepared cases and more focused prosecutions and investigations.

Elaine Taylor: I think it is worth adding that our division now provides assistance and guidance to inspectors throughout the course of an inquiry. If there is a certain steer that we think will focus an investigation more clearly, or any legal issues that come up on which they wish to consult, we go to HSE offices, meet inspectors and discuss them, and they are open to come to us at any time. We also provide input to training sessions, and they have done that for us on technical issues. We have addressed a lot of the technical issues on health and safety matters, such as how to deal with asbestos. We assist with their training and have also given input to local authority training to try to enhance their understanding of what we are going to require in terms of criminal prosecution, so that it will be a sound prosecution.

Q795 Graeme Morrice: Chair, you have helpfully asked the question I was going to ask about higher conviction rates in Scotland, and I thank you for that. Of those who have been successfully convicted in relation to health and safety issues, how many prosecutions have resulted in imprisonment?

Frank Mulholland: I am not aware of any prosecutions that have resulted in imprisonment.

Elaine Taylor: There have been none. As you have heard in other sessions, imprisonment has been available since January 2009. There will be a period for that to roll out, if you like, to see the effect of it. But it is also dependent on the recommendation for the prosecution of individuals and the actions of individuals seen against a corporate background. All sorts of factors are taken into consideration even when a recommendation is made to us by the Health and Safety Executive or local authority.

Frank Mulholland: One issue is that, for example, you need the evidence if you want to prove a case against the company. In those circumstances, sometimes you require the evidence of certain senior managers. It is open to us, I think, to use section 37 of the 1974 Act to prosecute senior directors and managers; but, to answer your question, no, there have been no sentences of imprisonment.

Q796 Graeme Morrice: Therefore, as to punishment following convictions, presumably we are talking about fines, unless there has been any admonishment. What would the range of fines be?

Frank Mulholland: I can give you the total fines over the 78 cases concluded since the Health and Safety Division was set up. It is a total of just under £4.2 million. The average fine per case works out at £54,554. That is relatively unsophisticated data. In Scotland, having regard to the way the prosecution is structured, if it is a summary prosecution, you are prosecuted before a sheriff sitting on his own without a jury. The maximum fine open to a sheriff is £20,000. If you are prosecuted on indictment in Scotland, it is an unlimited fine. What we are doing is averaging out the £4.2 million across the 78 concluded cases, of which 77 resulted in conviction. That works out at £54,554.

To add some gloss to the point you make, part of the benefit of the Health and Safety Division is that it gives a focus to the prosecution of health and safety law in Scotland that perhaps was not there before the division was set up. As a result of the concentration of expertise in health and safety law, we have been able to develop a seam of Scottish jurisprudence in relation to health and safety matters. For example, there have been three very important cases in Scotland, one dealing with the provision of financial information to the Crown prior to sentencing by the court, which is very important. In a case called Discovery Homes, it was held that any financial information which a defence produces to the court as part of sentencing consideration should be sent to the Crown about two weeks before the sentencing hearing, so that the Crown has an opportunity to check it out, which we have been doing.

There are a couple of other cases. In the case of Munro in 2009, we managed to persuade the Appeal Court to give effect to the sentencing guidelines produced in England and Wales on health and safety matters and have them incorporated into Scots law as being persuasive. So that has been very helpful in developing the seam of jurisprudence. It is our intention to seek to develop it further, so that the courts are well versed in and comfortable with dealing with health and safety cases, and we build up case law dealing with Scottish sentencing guidelines. That has been very helpful, and I hope it will continue.

Elaine Taylor: There is a misconception that the defence will come in and give financial information which will go unchallenged and the Crown has no input to that. It is quite the contrary. The Discovery Homes case enables us to do it and directs how financial information should be dealt with. In all of our cases that go to court, we have a typed narrative that will go to the sheriff upon which he is addressed. The depute in court will address the sheriff on the question of sentencing, directing him, as the Lord Advocate has mentioned, to the cases and the persuasive sentencing guidelines. My personal view is that this is having an effect and, even in the three calendar years we have been up and running, we can see an increase proportionately in the sentences. We have had some significant six-figure sentences in the courts since the division was set up. I think it is very important.

Q797 Chair: Are you happy that the courts take these offences sufficiently seriously? There has always been the suggestion, particularly by the unions, that courts tend to trivialise these offences and do not impose fines of a level they would wish to see. Is that your impression?

Frank Mulholland: It is certainly not my impression. There may have been some foundation to that in the past. It is not my job to criticise the courts. What I can say is that, as Elaine has alluded to, very significant fines have been imposed in health and safety cases in Scotland in the last couple of years: £260,000, £200,000, £80,000 and £60,000. Those are significant fines having regard to the income, profit and turnover of the company. The ICL Plastics explosion at Maryhill, with which you will be very familiar, was a case dealt with by Elaine herself. That was a very significant fine having regard to the income of the company. I believe it was £200,000. For Transco there was a fine of £15 million. To be fair to the courts, I do not detect that they treat these cases with any less seriousness than they deserve.

Elaine Taylor: The feedback we are getting from the Health and Safety Executive and other organisations is that they are seeing a significant change in the sentencing of the courts.

Frank Mulholland: To make one other point, if the court imposes what we consider to be an unduly lenient sentence, we have the power to appeal it. Discovery Homes was one of those cases; I think Munro was as well. So we exercise our power to have these cases looked at by the Appeal Court.

Q798 Chair: If you seek to appeal a fine, do you use an established set of criteria for assessing it, and is that publicly available?

Frank Mulholland: The test is whether it is unduly lenient, so we look at previous case law, the sentencing guidelines of England and Wales, the circumstances of the particular case and look at how England and Wales would deal with it. We then look at Scottish case law and whether or not there is a precedent, say, a similar case dealt with where the fine imposed was double or triple. In those circumstances, we will assess whether or not there is a reasonable prospect of success in persuading the Appeal Court that the sentence is unduly lenient. We have been successful in a number of those cases.

Q799 Lindsay Roy: So you are monitoring this rigorously. What was the difference between the original fine in Discovery Homes and your intervention?

Frank Mulholland: To be honest, I cannot answer that; I would need the case papers, but I can write and give you the details.

Q800 Lindsay Roy: It is only just to give me an indication. Was it a substantial increase?

Elaine Taylor: It was a substantial increase.

Q801 Chair: To be clear, there is no objective assessment made about what the penalty should be, and you deal with it on the basis of what the guidelines are in England and Wales and what has happened elsewhere. Nobody has sat down to say that the minimum cost of a life should be x and you will always go for that level, and if the fine is not at that level you will appeal it. You are just working on the basis of what you think you can succeed with.

Frank Mulholland: There is Scottish precedent that deals with health and safety breaches resulting in a work-related death, so we know what the Appeal Court has said is a reasonable fine in those circumstances. We apply that precedent.

Q802 Chair: That is right, but, for those who would argue the precedents are that the cost of death is too low, that would give them no reassurance because it would simply reinforce the impression that the cost of death is too low.

Frank Mulholland: The courts do not operate on the basis of cost of life and cost of death; they will look at the nature of the breach of the duty and the consequences of it. It is quite a sophisticated process. The court will look at all the facts and circumstances.

Elaine Taylor: You can never put a value on anybody’s life. You assess the nature of the breach, and how gross it was, that led to the death. A death is rarely a disproportionate consequence of a breach; it tends to be a greater breach that leads to a death. I think that is fairly obvious. The courts will look at the nature of the breach, the aggravation being the death as a consequence and the financial ability to pay. You could have a death where a fine of £60,000 is not an unduly lenient sentence, but it would be if it was a large organisation turning over billions of pounds. It is all of the factors being taken together in the penalty. That is entirely a matter for the courts. We direct the sheriff to the law and the persuasive guidelines.

Frank Mulholland: The courts will not want to bring down a company as a result of a fine if it is an employer employing a number of people. It is getting the balance right. There is a punitive element to sentencing. They have to punish the company and make the fine meaningful. That is why the court always requires financial information about turnover and profitability-the balance sheet-and will assess it having regard to the means of the company as against the nature of the breach of duty and its consequences. If you look at it very simplistically, when you fine somebody for a breach of the peace, you might consider it to be a very serious one that merits a fine of £5,000, but if the person is unemployed and cannot pay there is no point in imposing such a fine. You fine him something that is punitive but is a payment that the person can make.

Q803 David Mowat: I have a quick observation on that. Is this the only area in law where the level of fine is determined by the ability to pay, because in general that is not a principle, is it?

Frank Mulholland: I do not think that is right. In the example I gave, in Scotland, the court will always have regard to the ability to pay when setting the level of a fine. It is part of the background information to which the court will have regard. In common law offences, health and safety offences, environmental crime, even proceeds of crime itself, you recover what you can recover. It is a fundamental principle of the sentencing process in Scotland that you have regard to the ability of the accused, the convicted person, be it a company or individual, to pay.

Q804 Lindsay Roy: Referring to companies that are no longer trading, do you follow up to see whether they are trading under another name and it has just been a convenience move, if you like?

Frank Mulholland: Checks are made by the Health and Safety Executive to check whether a company-

Q805 Lindsay Roy: That monitoring goes on as well.

Frank Mulholland: We are well aware of phoenix companies and changes of name. There is a real issue in Scotland on the point you made about companies changing. In relation to partnerships, which is a reserved matter, you will remember the terrible fire and loss of life at the Rosepark nursing home. That was run by a partnership. Before the partnership was indicted for the Rosepark fire, in which there were 13 or 14 deaths, it was dissolved. The nature of Scots law at that time and currently is that you cannot indict a dissolved partnership. That brought criminal proceedings to an end. We then had to mount a fatal accident inquiry, which I think lasted about nine months. To brief you fully on this particular issue, because it is a reserved matter, the Rosepark gap, for want of a better phrase, will require to be filled by the Westminster Parliament.

Q806 Chair: I thought you were saying this arose because of the nature of partnership law in Scotland.

Frank Mulholland: It did, because the criminal liability of a partnership does not persist beyond dissolution.

Q807 Chair: But is that not a matter for Scots law?

Frank Mulholland: No, because business associations are reserved. I am not being critical of the UK Government. Michael Moore, with whom I have been in correspondence, and Jim Wallace, Advocate General, are well aware of the issue. The Scots Law Commission very recently held a consultation looking at partnership law and will publish a draft Bill.

Lindsay Roy: That is very helpful.

Chair: Feel free to be critical of the Westminster Government-we intend to be in due course-and the Scottish Government, if necessary. Don’t feel any hesitation.

Q808 Mike Freer: If the corporate body is dissolved, do you not go after their personal assets? Are they not personally liable?

Frank Mulholland: You can go after individuals if you have the evidence, but, without going into the detailed evidence of this particular case, we did not have the evidence to go after individual partners. We had evidence to prosecute the partnership, but because it was dissolved post-fire, we could not prosecute it.

Q809 David Mowat: To follow up the previous question I asked, how do you deal with subsidiaries and group companies if you are looking at the ability to pay? Would you say that a subsidiary has such and such ability and it is not reasonable to go further than that, or would you look to the whole group?

Frank Mulholland: It depends on the nature of the case. To give you the best example, Transco was part of a network of subsidiary companies. In advance of the jury’s verdict and sentencing process, the Crown and Health and Safety Executive did a lot of work looking at the financial position of the company: its turnover, the turnover of its subsidiary companies, and the profitability and turnover over the last 10 years. We were able to present that evidence to the court during the trial and post-conviction for sentencing process. Whether you need to go down that road depends on the nature of the company you are prosecuting.

Elaine Taylor: It may also be a factor only in sentencing that perhaps money is being moved among companies. If they are not the duty holder, you cannot go after another company.

Q810 David Mowat: I understand that. I was interested because you made a point about ability to pay and not wishing to put companies out of business, but in a complicated group you must have issues. A subsidiary could go bust but the holding company is still there. Presumably, the statutory entity you are suing is a subsidiary.

Frank Mulholland: It depends on who the duty holder is. If the duty holder is, say, the owner of a number of subsidiary companies, that would be an asset of the duty holder.

Q811 David Mowat: It would depend on that.

Frank Mulholland: It would depend on the pyramid structure you have got; we would look into that.

Q812 Mr Reid: In evidence, the National Audit Office told us they found it difficult to establish the outcome of HSE recommendations because of a difference between the data kept by HSE and yourselves. Is that a fair comment?

Elaine Taylor: I was involved in assisting the National Audit Office because there were some difficulties with the data. At the end of the day, reading from the report, they were commending the data we were retaining and using to assist them. There was a discrepancy in terms of the percentage of prosecutions which was clarified by the data we could provide. HSE have been quite forthright in saying they had difficulty in the past with the way in which they handled data, including, for example, recommending cases for prosecution for breaches of the 1974 Act but perhaps also regulatory charges. If there were two regulatory charges and a breach of the Health and Safety Act, and the Crown prosecuted under the Health and Safety at Work Act, but incorporating the breach of regulations, statistically the HSE would have recorded that as two out of the three charges not being proceeded with, when of course they were not; the case was being proceeded with, and that is really what matters. We clarified all of that with the National Audit Office, and worked with Mr Boothby from that office to assist him in that.

Q813 Mr Reid: Has this problem been resolved?

Elaine Taylor: I do not know whether it has been resolved from the perspective of the Health and Safety Executive. We are confident that from the Fiscal Service perspective we are retaining data that we can present and are certain about.

Frank Mulholland: We have a very comprehensive database in health and safety cases referred to us. One of the principles of the unit is that we must keep accurate and detailed records. I cannot speak for the Health and Safety Executive, but, as Elaine has alluded to, there was a problem in relation to the reconciliation of data.

Q814 Mr Reid: HSE have told us that this year they wanted to investigate all major injury accidents reported to them that qualified through their selection criteria as meriting investigation and not to put any aside through lack of resources. I think you told us in evidence that the only ones you had not prosecuted were those where there was not enough evidence. HSE are telling us that sometimes they are not able to investigate because of lack of resources, and you seem to be on top of your job and have all the resources. Is there any way of pooling resources with HSE in order that more cases will be investigated?

Frank Mulholland: Our budget is our budget. Whatever be the position of other public sector organisations, we are pretty tied. I can give an indication of the cost of the Health and Safety Division. The cost of the unit for the current financial year is about £2.16 million. To put that in context, the Crown Office and Procurator Fiscal Service budget is about £110 million, so about 2% of the overall budget of the service deals with health and safety cases. We get about 270,000 cases a year reported to us. We are spending on health and safety cases about 2% of our overall budget to deal with 0.08% of the cases reported to us overall. We are very conscious that we have properly to resource a very complex area of law and important area of our work.

To give you an indication of staffing levels in the unit, we have 10 lawyers headed by Elaine Taylor; we have three full-time people dealing with the administration side of it; we have what is called a precognition officer-perhaps that individual is best described as a paralegal-dealing with health and safety work. We also have, which is important, a full-time Victim Information and Advice person. She liaises with families and next of kin, and that is very important. Just to complete the organogram, we have a dedicated senior Crown Counsel who deals with health and safety matters. I hope that gives an indication of the importance with which we regard health and safety law in Scotland.

Q815 Mr Reid: Is any work going on between you and HSE perhaps to reduce duplication, so that HSE would be able to investigate more cases?

Frank Mulholland: I think the best way to deal with this is to go back to the way we work rather than the linear approach where the HSE conduct an investigation and go down a blind alley, for example, and report a case, having done a huge amount of work, where there is plainly insufficient evidence. We are involved at a very early stage working with them and giving direction and legal advice. Working together, you avoid going down blind alleys. There is a concentration and not a duplication of effort. That is certainly working.

In relation to HSE resources, obviously I cannot comment, but I can give the Committee an undertaking that I personally take health and safety crime very seriously, and under my stewardship as Lord Advocate it will continue. It is and will remain a major priority for the Crown Office and Procurator Fiscal Service while I am Lord Advocate.

Q816 Chair: Have you ever failed to prosecute a case because you do not have enough resources? The HSE told us there were some cases they could not follow up because they did not have enough resources. That is not your position.

Frank Mulholland: I would not accept that. I am not aware of any cases. The way the Crown Office and Procurator Fiscal Service works is that we have about 520 prosecutors in total across the whole country, and we also have a bank of paralegals. For example, if we got a spate of huge health and safety cases and the unit did not have the staff to cope with them, we would second staff that perhaps had spent some time in the unit and are up to speed with the law. That is the way we deal with a lot of crime.

Q817 Chair: It is helpful to clarify it. We were told that HSE could not proceed with some cases because they did not have the resources. There is lack of knowledge out there about who is responsible for not enough cases being prosecuted, as they would see it, but you are making it clear to us that this is not down to you.

Frank Mulholland: On that point, obviously we do not know about cases that have never been reported to us. If HSE are saying that there are cases they could not report to us because of lack of resources, we would not know about them.

Q818 Chair: By definition. But we have a wider audience out there who are interested in this. Until we started looking at this, it was not entirely clear why it was so many cases were not being prosecuted that they thought should be. Earlier, you said you had power to direct investigations if there was a workplace death but not if it was a workplace injury. Would you welcome that power?

Frank Mulholland: Would I personally welcome it?

Chair: Yes.

Frank Mulholland: Yes, I would. I have power to direct the police. It works well in practice. I have never been aware of a case where the police have said they disagree with me or they think I am misusing that power of direction. You would need to ask the HSE what they thought of it, but I am certainly comfortable with such a power. There have been cases, for example, where the HSE have not been involved in an investigation. I can think of one case where the police were involved in an investigation and they reported the case to the local procurator fiscal. It became evident over time when the fiscal was investigating that case that there was a real health and safety element to it. Contact was then made by the senior health and safety official in that particular area. There was a discussion about the need for health and safety expertise in that particular case, which was provided. It was not an issue for the Health and Safety Executive.

Q819 Chair: Given that we have been told by HSE that lack of resources sometimes stops them pursuing cases, if you had power of direction, in a sense they would have to do that, and how resources were found would be another issue passed down the line. That is helpful. Ms Taylor, did you want to come back on an earlier point?

Elaine Taylor: The phrase "a case is not being prosecuted" has been used. The Lord Advocate has clarified that to a great extent. It is not about cases not being prosecuted by the Crown.

Q820 Chair: I was using the wrong word. I should have used the word "events" or "incidents", as it were. Obviously, you mean that it comes forward to you as a case. What a lot of people are unhappy about is if something happens out there and it does not end up in a prosecution.

Elaine Taylor: I think the Lord Advocate has explained that. At the moment, health and safety have autonomy; they have an enforcement policy and management module as to the selection criteria, for instance, given the explanation about resourcing. But at the moment it is only in relation to fatalities that the Lord Advocate has power to direct and drive investigations. Where injuries are involved, it is a whole different ball game, if you like, and whether cases are reported to us is for the enforcing authorities. Once they are reported, we will consider them in the way we have already explained. If there is a sufficiency of evidence and a public interest is served by it, they will be prosecuted.

Q821 Lindsay Roy: I have three very quick questions. First, what influence do you think successful prosecutions have in encouraging other businesses to review their practices and processes and maintain high standards of health and safety? I realise that you are at arm’s length from this, but do you have any evidence that this has had an impact on others?

Frank Mulholland: I have no direct evidence. Quite frankly, we would be delighted if the unit was out of business and there were no health and safety accidents and deaths at work. Part of what the unit is trying to achieve is to raise awareness of health and safety pitfalls. What we do every year, which we did not do in the past, is publish our year-on-year statistics highlighting a number of cases and lessons learned, so that, hopefully, gets the message out. I think the increase in fines has had an effect. Coverage in the Scottish media has been very helpful to warn companies about the pitfalls, because in the long term cost-cutting can cost you more in terms of both good employee relations and the cost to the company, whether it is a financial penalty or civil litigation. I also think that the Transco prosecution had a major effect on health and safety in Scotland because it was a warning. It was perhaps a bit of a wake-up call to companies, particularly major ones, operating in Scotland that health and safety mattered.

Q822 Lindsay Roy: You are doing exceptionally well because you have covered the next question. So I will go on to the third one.

Elaine Taylor: To add to what the Lord Advocate said, since the setting up of the division, more cases are being dealt with on indictment for proceedings which attract the potential of an unlimited fine, whereas in the main a summary complaint would restrict the sheriff to a fine of £20,000. Of the 77 cases resolved by plea, 55 were on indictment. I think that shows how seriously we take health and safety crime. All cases involving fatalities were prosecuted on indictment. That also shows the importance we place on, and how seriously we consider, any breach that results in a fatality. That enables the sheriff to impose an unlimited fine.

Q823 Lindsay Roy: You and the Health and Safety Executive publish reports and they are normally well covered in the media.

Elaine Taylor: As I understand it, the Health and Safety Executive have an obligation to their Minister-there is an undertaking to the Minister-to publicise every case which goes to court that results in a conviction. What we have done is add to those. We see all press releases and effectively approve them. I do not mean by way of checking the work, but we can input into any press releases in order best to portray the circumstances of the cases going to press. On occasions the Crown Office and Procurator Fiscal Service will issue press releases in those cases where we think it is warranted, and we do that jointly with a feed-in from the Health and Safety Executive. The point of it is, most clearly, not to slap ourselves on the back and say how well we have done but to try to raise awareness. The only purpose, apart from punishment and justice, of publicising these is to raise awareness and provide a deterrent, so that companies out there know that, if they fail, they will be prosecuted and those are the kinds of fines that prosecutions attract.

Q824 Lindsay Roy: And to demonstrate there is rigour and robustness about the whole process.

Elaine Taylor: Absolutely.

Q825 Chair: Do you have any evidence that this publicity is working? People have heard about Transco and about the care home, but there are lots of cases where there are smaller fines. The people out there who are rascals and chancers are not necessarily going to be influenced by what happens to Transco, because they would not see that as being relevant to them. Is there any evidence that what you are doing is reaching people who might be tempted to find a way round health and safety legislation?

Elaine Taylor: We have anecdotal evidence and feedback from inspectors. Some solicitors have given evidence. Laura Cameron of McGrigors referred to the expectation that you will be prosecuted if you commit a breach, but we also have to get away from the notion that the people and the organisations we prosecute are all rogues and chancers. There are some significant companies: we have prosecuted Schlumberger in relation to a radiation exposure to risk; we have prosecuted Tullis Russell recently in relation to a fall from height. They brought a contractor on site but did not fulfil their obligations. It is not all about rogues and chancers and people in back streets. Some major organisations can get things very badly wrong, and we look at everybody and prosecute in an even-handed way right across the board.

Frank Mulholland: I can think of one case involving a one-man business. He was stripping out asbestos and exposing his workers without proper safeguards. We prosecuted him and he was fined, I think, £50,000. There was not a death; it was just an exposure case. There is a full range of types of employers.

Q826 Chair: I am sure there is. Would that case, for example, be as widely publicised among relevant firms as, say, the Transco case? There is a difficulty in the sense that big firms have HR departments, and people responsible for these things will scan the horizon, as it were, whereas this will not necessarily impinge on the consciousness of smaller firms in the same way.

Frank Mulholland: I can tell you that we were very concerned about this, because exposure to asbestos is quite rightly something about which to be very concerned. So we proactively tried to put information out there with phone contacts to the Scottish media. I think that particular case was covered in the Daily Record. That was generated by proactively seeking publicity for it, but you rely on the media to cover the particular case and give it prominence.

Elaine Taylor: We also receive quite a number of inquiries from industry magazines. Depending on the nature of the case, they will come to us and ask for information and copies of narratives because they want to put them out to the press and organisations with whom they deal, which can only be a good thing. Often, there are photographs and extra data on the case, which we willingly provide to them if it is public and is nothing of a confidential nature.

Q827 Graeme Morrice: On the issue of publicity, obviously prosecutions will be carried out in public. You gave specific examples where you tried proactively to give that information to the media to send out the appropriate messages and signals to everyone else. Obviously, one would support that. As a matter of course, when you have had successful prosecutions, do you issue press releases?

Frank Mulholland: Yes, we do.

Elaine Taylor: Not in every case.

Frank Mulholland: Not in every case, but in those where we consider it is important to get the message out.

Q828 Lindsay Roy: Has the creation of the Health and Safety Division within COPFS had a positive impact in the light of time taken for investigations and the decision-making process as to whether or not to prosecute?

Frank Mulholland: I read some of the evidence about time taken from the reporting of the case to prosecuting it, or from raising an indictment and concluding the case. The difficulty with health and safety cases is that no two can be the same. Some can be very complex.

Q829 Lindsay Roy: It depends on the circumstances.

Frank Mulholland: Yes. For example, in the case of Transco it took four years to raise an indictment. You are not twiddling your thumbs for four years. There is the case of Rosepark. There is a huge array of different types of cases, some more complex than others. Some you can put into court earlier. Perhaps the best way of dealing with it is to give the example of the Super Puma accident in the North Sea. As you probably followed from the media, the AAIB published its report only last month. It is a very technical investigation. I am not directing any criticism. It is a very comprehensive report. We are now working on it with a view to deciding what to do with it. You cannot fast-track those types of cases; you have to do them properly. The last thing I want is to put a case into court when it is not ready because you will end up with egg on your face.

Q830 Lindsay Roy: It is horses for courses.

Frank Mulholland: It is horses for courses. I do not accept that we could be doing these cases quicker and putting them into court as a generality. I think cases should go into court only when they are good and ready.

Q831 Chair: Nobody would argue for them to go forward unprepared, but, as you mentioned, we have had evidence, both written and oral, from people which indicates that in their experience your unit seems to be slowing things down compared with what it was before. HBM Sayers say that "following the establishment of specialist Health & Safety Unit we have started to experience delay in our cases". Gordon Dalyell says that "it is still taking quite a lot of time for cases to be investigated." Do you have a relationship with these sorts of organisations which enables you to explain to them the sorts of points you are making to us? We got the impression that they were unhappy about the length of time it was taking you to proceed with things.

Frank Mulholland: Do you want to give an example of what you did following the evidence of HBM Sayers?

Elaine Taylor: We often have situations where defence solicitors have a front-loading of evidence presented to them for them to consider. Setting aside fatalities for the moment, because we are directly involved with them from the outset, in a reported case where an injury has taken place we engage with the solicitors. Before a case is put into court, we will front-load the disclosure, which means we present them with all the material and evidence they will have to consider to advise their clients in relation to a plea. We attempt to negotiate a plea at an early stage, if that is going to be a viable option. Very often, for months, solicitors will sit and consider that evidence and not come back to us. In spite of efforts to resolve things within a shorter period, that just does not take place because of the process. We have cases that we want to move to indict, but for various corporate reasons, solicitors will come back to say they do not want it in court for another two or three months. We have to wait.

Q832 Chair: I understand that. I do accept there will be times when defence lawyers for one reason or another seek to thwart the system and so on, but that was not quite what was being suggested to us. Presumably, if there are what can be considered undue delays, you will be able, in most circumstances, to point to where it is somebody else’s responsibility other than your own to overcome what seems to be the perception being created, fairly or unfairly, that it is down to yourselves.

Elaine Taylor: When I contacted HBM Sayers following reading that passage of evidence, in fact their purpose had been to be supportive of our obtaining additional resources. That was the explanation I was given.

Frank Mulholland: I think you asked for the cases.

Elaine Taylor: I asked for the cases and, to my recollection, there was one they could identify. I asked for details of them in order that I could progress them. There was one specific case that could be mentioned as having suffered a delay. I accept there was reason for it, but there was a delay in getting it to court, and it was resolved with the solicitors. We have a very good relationship with those solicitors. People are very good at making comments that there are perceived delays, but, when you drill down, very often there is no clear evidence to substantiate that.

Q833 Chair: The difficulty for us is that we have to work on the basis of the evidence presented to us. This is what we are being told. If you want to respond to us just indicating your understanding of what they have said and so on, and if there are delays they are the responsibility of somebody else for x, y and z reason, that would be helpful. At the moment, we have the impression that there is more delay than is strictly necessary.

Frank Mulholland: Let me deal with it in this way. If there has been undue delay in a prosecution in Scotland, it is open to the defence to raise what is referred to as a devolution issue. If they can demonstrate that there has been undue delay, they will receive a reduction in sentence. They may even get an order from the court for the prosecution to be ended. I am not aware of any.

Q834 Chair: But that is a sort of nuclear option, though, is it not?

Frank Mulholland: No. There is a range between a reduction in sentence or even a declaration of undue delay right up to a prosecution ending. In relation to Health and Safety Division cases, I am not aware of any finding by the court of undue delay. Certainly, there has been no reduction in sentence as a result of undue delay in a Health and Safety Division case. If evidence has been presented to you, I disagree with it.

Q835 Chair: Can you contradict it, in a sense? Do you have any evidence to demonstrate that what they have said is not correct because of such and such?

Frank Mulholland: That is what I am saying. If the defence thought there was undue delay and they could get a reduction in sentence, or even an end to the prosecution, believe me, knowing the legal profession in Scotland, they would certainly take that opportunity. As far as I am aware, they have not taken it. Are you aware of it?

Elaine Taylor: No.

Q836 Mike Freer: When the new division was created, I understand that you requested a review of older files by the HSE. What caused that review? Why did you do that?

Frank Mulholland: To be candid, I had been concerned about how we were handling health and safety cases under the old linear system. The Health and Safety Executive would report it to the local procurator fiscal. Some were very good at it; some would deal with it properly and expeditiously; others maybe not so well. When we set up the division, for the reasons that I have articulated, we had to work through some old cases which perhaps had not been handled as they should have been. That is why, when setting up a division, you have to look at what is coming into it from procurators fiscal. Certainly, for the first year, it was a high percentage of your work, which is diminishing.

Elaine Taylor: Perhaps "review of older files" is a description that does not clearly represent the position. We inherited a significant number of cases from the area offices at set-up, perhaps because they had not reached a developed stage of investigation, or there was another good reason, because of their highly technical nature, that we should take them over. The division did not commence from a standing start, if you like, of all new cases; there was a transitional period and an agreement to take certain cases into the division from those areas. It was not a matter of saying to the HSE, "Review all your old files now." As we started to work through the cases, it was a matter of identifying what we saw perhaps as gaps or where evidence could be bolstered or dealt with better, or approached in a certain way, and some additional work was instructed.

Q837 Mike Freer: So they are new cases currently in process rather than going back to old cases that had not been proceeded with.

Elaine Taylor: Absolutely. It relates to the cases we had taken in the transfer where we were of the view that perhaps additional work needed to be carried out to give us confidence to move forward to prosecution. It was not a matter of digging out old files and reviewing all of them.

Q838 Graeme Morrice: Do you think the time taken to decide whether to carry out a fatal accident inquiry might affect an individual’s decision as to whether or not to pursue a civil claim?

Frank Mulholland: My general experience of fatal accident inquiries and litigation is that solicitors will often wait until a fatal accident inquiry has taken place, because that is an opportunity to hear the evidence and obtain a decision from a sheriff having heard the evidence. As to fatal accident inquiries, the unit has dealt with 10 in two and a half years. Some have been very distressing and significant. I do not know whether you remember the case of a child that fell through a balustrade in an office building in Edinburgh. That required a detailed and quite harrowing FAI. When an FAI is instructed, you petition the court for it to be held. When it is held is a matter for the court and the sheriff clerk, and the programming depends on the particular court in which you aim to hold the FAI. To take Glasgow, it takes longer to get a date for a fatal accident inquiry than it will in, say, Dingwall, where the court programming is a lot better and there are more slots in the diary. We are dependent on the court to give us time to hold an FAI. If that has an impact on litigation, it is not our intention; our intention, once we have instructed an FAI, is to hold it as quickly as possible.

Q839 Chair: To be clear, one of the constraints in all of this is not prosecution efforts but court time.

Frank Mulholland: A sheriff court such as Glasgow is full of business: custody cases; sheriff and jury cases; maybe High Court business; and civil business. To get particular slots in a diary is a logistical difficulty. We are really dependent on the court.

Q840 Chair: We are not here necessarily to be sympathetic to their problems in a sense, but to try and identify the issues we are pursuing. One of the concerns expressed is the length of time it takes from beginning to end. One issue we have picked up with you is whether or not you are responsible for delays, and you have responded to that. If you are now saying that bottlenecks in the courts are holding up some of it, I can understand that, and maybe we will address it in recommendations and so on. I just want to be clear about what you are saying.

Frank Mulholland: I think you have to appreciate that there are two types of FAI: one without criminal proceedings and one following criminal proceedings. The FAI would still be the same. As to where you mount a criminal prosecution, it is still open to the Crown to instruct a fatal accident inquiry following the criminal prosecution, and of course it is right and proper that the criminal prosecution comes first. After the criminal prosecution, we will sit down with the next of kin and speak to them about whether or not they wish there to be a fatal accident inquiry. I have the power to dispense with a fatal accident inquiry where the facts have been fully ventilated in a criminal prosecution.

In relation to health and safety deaths at work, there has been only one instance where there has been a criminal prosecution and the next of kin-the family-have wanted an FAI following it. The criminal prosecution has to go first and the FAI will take its turn after that. In the case of Transco, at the end of the prosecution I sat down with the family and said, "Look, do you want a fatal accident inquiry?" I talked through with them what it was. Having sat through a seven-month trial, it was quite understandable that they did not want to proceed with one.

Am I blaming the courts? No, I am not blaming the courts because business is business, but these things take time. There is complexity about it. At the end of a criminal prosecution, you sit down with the family and find out what they want, and that is taken into account by Crown counsel when deciding whether or not to instruct a fatal accident inquiry.

Elaine Taylor: It was not clear to me from some of the submissions whether or not the complaint was that fatal accident inquiries were taking too long beyond a criminal prosecution or where no criminal prosecution is taking place. In the main, a fatal accident inquiry where there has been no criminal prosecution is more likely to be one that is dealt with outwith our division rather than within it.

Chair: I see; sorry.

Elaine Taylor: I am only suggesting that might be what is being referred to. We would always look at criminal proceedings first, before moving to an FAI if there was a sufficiency of evidence and the public interest was served.

Q841 Lindsay Roy: What is the maximum sanction available to an FAI?

Chair: Is there a sanction?

Frank Mulholland: It is not a sanction. The sheriff makes a finding on how the death was caused. He also has power to make recommendations about how such a death can be prevented in future, but there are no penalties associated with a fatal accident inquiry and he can’t make findings.

Q842 Lindsay Roy: It is what emanates from the FAI.

Frank Mulholland: What happens is that at the fatal accident inquiry the determination of the sheriff will be issued to parties and published. It is then for the parties to take that forward.

Q843 Chair: You saw the evidence we took last week when we met Patrick McGuire from Thompsons, for example. One of the points he made was that the speed of investigation, prosecution and conviction for murder and culpable homicide was in stark contrast to that for health and safety, the implication being that murder was treated far more seriously and moved through the system far more quickly compared with health and safety. How do you respond to that? I think he was also saying that in court there seemed to be much more willingness to give companies and their solicitors time effectively to agree a form of words as to what the indictment says about what happened. How do you respond to that? The suggestion is that you do not pursue it with the same alacrity and you are much more tolerant of defence solicitors trying to get a settlement or form of words they find less punitive than otherwise might be the case in terms of what is pursued.

Frank Mulholland: Let me deal first with murder.

Q844 Chair: You smile, but unfortunately smiles are not recorded by Hansard.

Frank Mulholland: Let me put some words to the smile. First, as to murder, you will have someone in custody. In Scotland, the time limits are that you have to commence the trial within 140 days of first appearance in court. That drives the prosecution of murder. Health and safety cases can be a lot more complex than murder cases. Some murders are complex; some may take years to mount. For example, there was a recent case involving a man from New Zealand, Malcolm Webster. It took three years properly to investigate it and bring it to court. It depends on the nature of the case, but I can tell you one thing. I am not aware of any case where we have allowed defence input into the drafting of the charges; that just does not happen. The narrative of the facts to be presented to the court will be shown in advance of the hearing to the defence, which is right and proper, so you do not have proofs in mitigation and that type of thing. I have to say I do not agree with the assertion that has been made to you.

Q845 Chair: One thing I am not clear about is whether you have forums in which you can discuss these sorts of things with people like Thompsons and other defence lawyers and so on. If they are telling us these things, we end up with "He says, she says," which is quite difficult for us who are outwith the system to deal with. Surely, some of these things can be clarified by discussion internally.

Frank Mulholland: We did that with Sayers; we asked for the names of the cases.

Q846 Chair: But no other forums exist in which issues of procedure and so on are explored and discussed and their unhappiness can be conveyed to you.

Elaine Taylor: As to Thompsons, they are acting for individuals and that is why they are coming out with a line of criticism against us. I take exception to the suggestion that in some way the defence is controlling what we present to court by virtue of trying to have input so that words are less punitive. If anybody looks at the indictments that are put before the court, the narratives and the way in which our cases are presented, they are anything but that. We take a very holistic approach to offences, more so than prior to the set-up of the division. Whereas at one time many cases would have been taken to court on the basis of the event, for example, the cherry picker tumbling over and some poor man losing his life, we will go back and look at systemic failures that led to that lack of information, instruction and supervision, so that we are able to cover, as far as we possibly can, any issues that might otherwise have to be dealt with by an FAI. The benefit of that is that, if we prosecute the case holistically and look at any matters of conflict on which the sheriff could make a determination-we can justifiably and quite properly go to the family and say, "These have been covered. We cannot see a reason for the further process of an FAI, so you will not have another protracted hearing of the evidence."

The other issue is that the family may be, and will be, completely supportive of a prosecution and come to court and hear all the circumstances, be prepared in advance for what it will be like and listen to a presentation of the evidence over a period of perhaps one and a half to two hours between the Crown and the defence. If you do that, where is the benefit in moving on and perhaps having a week of evidence in an FAI and going through the same harrowing process?

We are trying to deal with everything in the public interest. There is a suggestion that because we are trying to negotiate a very good plea-not a cheap plea, as has been suggested-we plead away cases that are old. That is quite incorrect and quite wrong. Because we are trying to negotiate a good plea and obtain a form of words factually upon which the defence will submit a letter intimating that they wish to plead, it is being suggested in some way that it is diluting what we are doing. I would say it is hugely enhancing it, and the wait while we go through that process brings great benefits, rather than proceeding to try to put together a case, precognoscing it and spending a lot of time seeing witnesses, who may also find the process harrowing if they have been injured or involved in the witnessing of a fatality. We go through all of that and resolve it to the best of our ability, rather than kowtowing to anybody or tolerating the dilution of a message. It is quite the opposite of that.

Q847 Chair: It comes back to a question of perception, does it not?

Elaine Taylor: Yes.

Chair: We have heard two different views of it.

Q848 Lindsay Roy: How many prosecutions have there been in Scotland under the Corporate Manslaughter and Corporate Homicide Act 2007, and what were the outcomes of these cases?

Frank Mulholland: None, but a number are under consideration.

Q849 Lindsay Roy: How is the process leading to a decision to prosecute for corporate manslaughter different from that in a fatality under the Health and Safety Regulations?

Frank Mulholland: Obviously, there are different requirements of proof. Those are the cases in which the police would become involved from the very outset, taking primacy in the investigation. That would be under the Work-related Deaths Protocol. You would need to be able to establish a gross breach of the duty of care, so you would need carefully to assess what the evidence is in relation to that. We are always alive to that. Part of the problem in the Transco case was that we tried to prosecute them for culpable homicide and we could not do it. You can do it in law, but part of the problem was that we did not have the evidence to do it because of the nature of the company. It was such a large body, with people moving about from department to department. There was no principle of aggregation recognised in Scots law. You cannot aggregate the actions of another as your own. We were not able to do that. We are very alive to that and there are a number of ongoing investigations.

Q850 Lindsay Roy: What is the maximum sentence for corporate homicide?

Elaine Taylor: It can be indicted only in the High Court and it is an unlimited fine. Effectively, it is the same penalty as a breach of the Health and Safety at Work Act.

Q851 Lindsay Roy: So it is similar to prosecutions under the health and safety at work legislation.

Frank Mulholland: It is an unlimited fine, but certainly in the public perception a conviction for corporate manslaughter and corporate homicide would be regarded as more serious than a conviction for health and safety under sections 2 and 3. For the company’s reputation, the matter would be much more serious than perhaps a conviction under section 2 or section 3 of the Health and Safety at Work Act.

Q852 Mr Reid: I go back to the concerns expressed to us about the length of time taken for a health and safety case to come to court. Do you have figures for the average time between the point when somebody is charged and sentenced in, say, a murder case compared with a work-related death using health and safety legislation?

Frank Mulholland: No, we do not. We have figures showing how long it has taken. The majority of people charged with murder are tried and convicted within five or six months of their first appearance in court. The reason for that is simple. In murder, they are custody cases, so you have to bring them to trial within a set period to comply with the law; whereas with health and safety cases, we do not have custody time limits.

Q853 Mr Reid: Is there an argument for a statutory limit on health and safety cases to encourage them to bring forward the case?

Frank Mulholland: I would not welcome that, and I will tell you why. No health and safety case is identical; some are more complex than even the most complex murder case. Some are huge, for example. The Rosepark fatal accident inquiry started off as a criminal investigation. It took a number of years to put that together in an acceptable form, so that it could be made available to the court and satisfy and give answers to the relatives of the deceased. To try to shoehorn that into time limits would be very wrong, because it would result in cases going into court that were not properly prepared. You would be putting them into court when there was further work to be done.

Q854 Mr Reid: Do you have any internal guidelines about the length of time, depending on the complexity of the case?

Elaine Taylor: Could I say first of all that I think there is a huge difference between murder and health and safety breaches? In a work-related fatality, you have somebody who has lost their life, but it can be a significant period of time before you know whether you even have any crime, or if there has been a breach of any offence, which differs greatly from a murder case in which a poor person is found with multiple stab wounds and the knife is nearby. I mean that seriously. It can be many months before we know whether or not an actual breach of health and safety has been established at all. The investigation is focused on gathering all the evidence to determine that rather than starting at the point of a crime and then working your way towards the prosecution. That was the first point I was going to make. I am sorry but I have lost the second point.

Q855 Mr Reid: I was asking whether there were any internal guidelines about how long a case should take depending on, say, the complexity.

Elaine Taylor: I think that, in principle, the Health and Safety Executive can work in very straightforward cases to reporting targets of four to five months, but those are the exception because of the nature of the offences. I would rather have a thoroughly investigated and properly prepared case reported to me than one in which we immediately have to go back and identify where there are gaps. That would be an exceptionally short time scale for reporting a case. Most are far in excess of that because of the nature of the inquiry.

Frank Mulholland: To supplement Elaine’s point, often you can identify a breach of duty only when you have received expert evidence. We cannot force experts to agree to give us expert evidence. In many cases, you are dependent on their good will and time scale, because a lot of them are very busy people. We always try to seek the best expert we can, so we are dependent on that in many cases. Going back to a point I made half an hour ago, if there is a concern about delays, it is open to the defence solicitor to raise it with the court, and thus far it has not been raised. We certainly have not been censured by the court; nor has there been a reduction in sentence. We are alive to the need to try to deal with cases as expeditiously as possible, but sometimes they take time because they are complex.

Q856 Chair: You have a fatal accident inquiry on almost every occasion when you do not proceed with a prosecution. If you decide not to prosecute, you go straight to a fatal accident inquiry, or would that be somebody else altogether?

Frank Mulholland: Fatal accident inquiries are mandatory in relation to work-related deaths, except where there has been a criminal prosecution and the facts have been fully ventilated before the court. You then require a decision of the Lord Advocate to dispense with a fatal accident inquiry. In those circumstances, we take account of the views of the family as to whether or not they wish to have a fatal accident inquiry.

Q857 Chair: When Thompsons spoke to us, they said that in 30% of their cases it took between three to four years for a fatal accident inquiry to be held. That seems to be an awfully long time for people to find out what happened.

Frank Mulholland: I need to know what the cases are and their complexity, because in many of them we would be looking at a criminal prosecution which has taken place before a fatal accident inquiry. I would need to see the figures and the concerns properly to answer that. I do not think I am in a position to respond to just a general feeling.

Q858 Chair: Thompsons gave the figure that the average length of time from death to fatal accident inquiry was 30 months, and in 30% of cases the delay was three to four years.

Frank Mulholland: Let me have the names of these cases and we can check to see whether it is accurate.

Chair: That is helpful.

Q859 Graeme Morrice: What is your role in relation to civil claims in Scotland?

Frank Mulholland: My role is none. I am the Lord Advocate, the prosecutor in Scotland, so I have no involvement in litigation.

Q860 Graeme Morrice: Is the number of personal injury claims against employers a better indicator of workplace accidents than those reported to the Health and Safety Executive?

Frank Mulholland: I would not be able properly to comment on that. I do not know how valid that assertion is.

Q861 Chair: Using comparisons, there were figures produced by the NHS about the number of stab wounds presenting for treatment compared with the number of stabbings reported to the police. There was a gross disparity. That is why we are asking you whether or not, based on experience elsewhere, you believe one of these is a better indicator than the other, or you have any other light to throw on it.

Frank Mulholland: What I would say is that there is a certain amount of under- reporting. What you are trying to do is shine a light on that to see the extent of it. You are shining a light by citing figures in civil litigation as compared with health and safety data. I accept there is under-reporting, but I really cannot help you with any accuracy.

Q862 Chair: You are here; these issues have been raised; and we thought we would raise them with you.

Frank Mulholland: I am trying to be as helpful as possible.

Q863 Mike Freer: The number of claims according to the Compensation Review Unit seems to be in decline or has reduced. Do you think that suggests we do not have a compensation culture?

Frank Mulholland: I have never thought we really had a litigious culture. If people are injured at work, in my view they have the right to seek redress in the civil courts and be compensated for that. I certainly do not detect a compensation culture in Scotland. I cannot answer for anywhere else. Part of my role as the Government’s legal adviser is to deal with civil suits against the Government. I am certainly not aware of a huge compensation culture out there.

Q864 Mike Freer: Looking at, say, the disparity between the low number of prosecutions for health and safety and the high number of personal injury claims, do you think that is because, to put it bluntly, there is no harm in making a claim under personal injury, because you might get a payout anyway, whereas the burden of proof in a proper prosecution is much different? Do you think that is why there is a disparity between the two?

Frank Mulholland: I think that is part of it, and it is a very good point. The criminal standard is a higher standard; it is beyond reasonable doubt against the balance of probabilities. There is also an element that, if you are injured at work and it is your intention to continue to be employed by that particular firm, you might seek compensation, but you might not be inclined to report it because you are worried about keeping your job.

Lindsay Roy: Yes.

Frank Mulholland: I am sure those dynamics are at play, but it is a whole mix of issues, one of which you alluded to in relation to different standards of proof.

Q865 Chair: I pick up one issue relating to prosecutions: the question of rogue employers not having relevant insurance, and whether or not that issue has concerned you. Clearly, there are issues about some employers not having workplace insurance, getting away with it, possibly judgments being made against them and then no payment is possible. Do you have any role at all in pursuing that?

Frank Mulholland: It is a criminal offence not to have employer’s liability insurance, but, unfortunately, it can be prosecuted only on summary complaint.

Q866 Chair: Perhaps you would run that past me again. What is a summary complaint again?

Frank Mulholland: A sheriff sits on his own, which reduces the penalties, and there is also a six-month time bar because it is prosecutable only summarily. It can be quite difficult and challenging to mount such a prosecution within the time limits. You might not know about it until way down the line when someone is looking for compensation and it is not available because the employer’s liability insurance is not there. It seems to me that is a matter for legislators. There is an argument for strengthening that. As in road traffic law, there is the offence of causing death while not having a driving licence or insurance, which is a recent innovation by the UK Westminster Parliament. It may be there is an argument for a new criminal offence, such as causing a work-related death or injury without having employer’s liability insurance, but that is a matter for politicians.

Q867 Mr Reid: What is the argument behind the six-month rule, as it does not seem to exist in other areas like health and safety?

Frank Mulholland: It depends on the nature of the offence whether or not it is imprisonable. If it is not imprisonable, you can prosecute it only summarily. By law, in Scotland it means that there is a six-month time bar. You have to raise proceedings within six months of the date of the offence.

Elaine Taylor: I think I have seen only one case reported to us that involved someone not having employer’s liability insurance, so it is not rampant across the cases we see.

Q868 Chair: Is that something you would check?

Elaine Taylor: It was something reported to us. It was part of the investigation and the Health and Safety Executive had looked at it.

Q869 Chair: So, in any case coming to you, that is one of the things that would have been checked before it got to you.

Elaine Taylor: I cannot say they do check it automatically in every case, but that would be a matter for the Health and Safety Executive to clarify, but I suspect the fact that that particular one was reported to us would be a fundamental issue for them. But only they can clarify that point.

Q870 Chair: I am not clear whether or not it is a bit like cycling without lights and in a sense it becomes registered as an offence only when somebody is caught doing it, or it is on a parallel with not having an MoT certificate which you must have to tax a car and therefore you have to show it. We were discussing earlier whether or not having employer’s liability insurance should be proved before you can do something, such as putting in your annual accounts or something similar.

Elaine Taylor: I suppose the only issue with that is that Companies House receives documents only as a repository and is not responsible for checking the veracity of any of the content of the documents submitted. Who will police that? The second part is: is it not just like a road traffic insurance certificate for the use of a car? Somebody could present it one day with the accounts and cancel it next day, if they had a mind to do so? I suppose there are things that need to be addressed in that respect.

Q871 Chair: We usually ask people whether or not they have any answers prepared for questions we have not asked. Is there anything in particular that you want to get off your chest while you are here?

Frank Mulholland: No, I do not think so, other than perhaps to raise the profile of proceeds of crime, which applies as much to health and safety prosecutions as to other areas of criminality. We are trying to develop an awareness of that. For example, if a company is skimping on health and safety and over a five-year period is not spending the money it should spend to prevent a particular accident, and, as a result of the savings, they make profit and it all ends in tears with a work-related death, you prosecute that particular company. It seems to me it is then open for the prosecution to look at proceeds of crime and what profit that company has generated as a result of the health and safety breach of duty that has taken place over a significant period of time. We are trying to develop some thinking and an approach to that.

Q872 Chair: But is not all of that something that would be taken into account when a fine was being either sought or levied?

Frank Mulholland: No. Confiscation sits independently of a criminal prosecution, but in relation to where you do not have the evidence to mount a criminal prosecution to the criminal standard beyond reasonable doubt, it is still open to you to raise proceedings under proceeds of crime legislation. That is a matter to which the unit is alive and is something I want to highlight with this Committee.

Q873 Chair: That has not been done in Scotland, but has it been done in England and Wales?

Frank Mulholland: I am not sure; I cannot answer that question. It has certainly not been done in Scotland, but it is something we are looking at.

Chair: I am sure we will note that. Thank you very much for coming along. It has been very helpful to us.

Prepared 27th January 2012