Lawyers debate health and safety prosecution time limits
Legal experts appearing in front of a committee of MPs have debated the pros and cons of introducing a statutory time limit for bringing a prosecution under health and safety legislation.
As part of its inquiry into the health and safety regime in Scotland, the House of Commons Scottish Affairs Select Committee questioned the lawyers on the reasons why health and safety prosecutions in Scotland are often subject to long delays.
All three lawyers giving evidence to the Committee – Elena Fry, from the Forum of Insurance Lawyers; Patrick McGuire, from Thompsons Solicitors; and Gordon Dalyell, from the Association of Personal Injury Lawyers – suggested that resources at the HSE and the Crown Office and Procurator Fiscal Service (COPFS) could be part of the problem. However, both McGuire and Dalyell went on to champion the case for the introduction of a statutory time limit for bringing health and safety prosecutions, as there is generally for common-law crimes, such as murder and culpable homicide.
McGuire said the COPFS tends to accumulate its evidence fairly quickly and has a “fairly early, clear view” as to whether it is in a position to proceed with a prosecution, or not. He went on: “But it is when that process of negotiation begins and when defender firms get involved that we start to hear the arguments about them requiring to undertake all this detailed investigation to allow this process of discussion to take place. The question is: should they [defender firms] be given that much hope?”
However, Elena Fry pointed out to the MPs that: “The only danger with the time limit is that you might have some very technical, difficult, multiple-fatality incidents not being sufficiently able to be prosecuted within that timescale and, therefore, you might be in a strange situation where you want to prosecute but you cannot if you impose a timescale.”
She continued: “I do not think we can over-emphasise how technically complex some of these incidents can be, as is getting to the bottom of precisely what happens in industrial incidents, involving loss and interviewing what can be numerous witnesses in order to clearly establish the facts, because if the Crown and the HSE get those intrinsic facts wrong, then a prosecution will fail.”
When challenged by the Committee that exceptions, or procedures to apply for an extension of time for certain cases, could be built in to the system, Fry retorted: “In general terms, if you have a statutory time limit for prosecution, you tend to have to stick to it. That is the time within which the Crown must bring the prosecution proceedings, and if they don’t, then they are barred from bringing those proceedings.
“So, if you are going to impose a time limit, you have to be very careful that you have the adequate resources in place that can prosecute properly all of the crimes that you want to be prosecuted.”
As well as more resources and time-limit provisions, Dalyell also argued for closer ties between the HSE and the COPFS. He remarked: “The initial investigation can take a certain period of time, but once it gets to the COPFS it will slow up, because they are looking at it again and looking at it from an evidential point of view. That is where our members’ experience would suggest that if there could be better coordination between the HSE and the Crown Office in relation to the initial investigation, that might speed things up.”
The committee’s inquiry continues today, when it will hear from the Lord Advocate Frank Mulholland QC and Elaine Taylor, head of the Health and Safety Division at the COPFS.
Lawyers debate health and safety prosecution time limits
Legal experts appearing in front of a committee of MPs have debated the pros and cons of introducing a statutory time limit for bringing a prosecution under health and safety legislation.
Safety & Health Practitioner
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