Tom Miller of Tods Murray LLP discusses how health and safety enforcement in Scotland differs to England and Wales, and looks at what the current enforcement trends suggest.
Health and safety practitioners based south of the border may not be aware that the procedure for commencing a prosecution in Scotland is very different to that elsewhere in the UK.
In Scotland, the HSE does not have prosecutorial powers. The investigating HSE officer prepares a report which is submitted to the Crown Office and Procurator Fiscal Service (COPFS), which has sole responsibility for the raising of all criminal proceedings in Scotland.
The COPFS has a specialist division dedicated to investigating work-related accidents. The division was created in 2009 with the aim of ensuring decisions on whether to prosecute were made on an efficient, consistent basis. However, whilst an April 2013 report by the Inspectorate of Prosecution for Scotland praised the standard of the division’s work, it cited its concerns at extensive delays which meant some cases were not being concluded for several years.
Whilst comparing the position in England with Scotland is an inexact science, the most recent statistics issued by the HSE produce some interesting findings. Across the UK, there has been a decrease in the number of workplace deaths — from 171 in 2010/11 to 148 in 2012/13. This general trend is not replicated in Scotland, where 22 workplace deaths were reported in 2012/13, compared to 14 in 2010/11. This suggests, anecdotally, that the importance of safe working practices is not understood as clearly by employees and employers in Scotland as it is across the rest of the UK.
The HSE achieved a conviction rate across the UK of 95% in 2012/13, based on 568 convictions from 597 prosecutions. The COPFS conviction rate was 91% for the same period. However, this was based on 21 convictions from 23 prosecutions. The low number of cases being brought to court, coupled with the fact that there has not, to date, been a single prosecution in Scotland under the Corporate Manslaughter and Corporate Homicide Act 2007, must cast some doubt on the overall effectiveness of the Scottish approach.
Health and safety remains a matter reserved to the UK Parliament, and therefore the Scottish Parliament cannot make laws which relate to the subject. How might the position be affected by the vote taking place on 18 September this year? I will be covering this in a second blog later in the week.
