Compass Regulatory Members:
Peter Gray QC
Andrew Smith QC
Mark Stewart QC
Gary Allan QC
Jamie Gilchrist QC
David Sheldon
Barry Divers
Steve Love
Susan Duff
Graeme Middleton
Amber Galbraith
Barry Smith
Yvonne Waugh
Compass Clerking Contacts:
Irene McKenzie
Michelle Williamson
To view previous
Bulletins:
January 2009
|
1. Specialist Health and Safety Prosecution Division: The Philosophy, the Facts and the Players:
The Philosophy:
At the end of 2008, many practitioners will have been alerted to the impending restructuring of the management and handling of all health and safety cases reported to the Crown by the statutory agencies with responsibility for accidents at work.
Compass Chambers regulatory team member Gary Allan QC, presently out of private health and safety practice having accepted an invitation to be a member of the team of Senior Advocate Deputes within Crown Office, has been appointed Crown Counsel with special responsibility for consultation and liaison on fatal, serious and complex cases within the new health and safety arrangements. He has been able to describe to us more fully the changes which are being put in place and the advantages which are intended to be achieved.
Gary explained “Having regard to the significant number of serious and fatal incidents involving industrial concerns of all sizes and in all sectors, a very substantial investment of resource and talent has always been applied by the Crown to this crucial area of social regulation. However, it has become increasingly clear that increased specialisation on the part of the prosecution service was required in the context of health and safety work to reflect the complexity of the law in this area and the technical nature of the evidence which requires to be presented in court. Very significant industrial incidents giving rise to potential health and safety prosecutions can just as easily arise in a small sheriff court district as in a large one, and it is extremely challenging for a local prosecutor to deal with the myriad of complexities that a major health and safety prosecution brings.”
In addressing these needs the Crown Office and Procurator Fiscal Service has decided that the option of retaining the current system does not offer sufficient specialisation and consistency. A new specialist division has been established to deal with the preparation of health and safety prosecutions and deaths investigations where the Fatal Accident Inquiry requires specialist input.
Key Facts:
The Health and Safety Division comprises individuals who will have responsibility for the marking, preparation and prosecution of all health and safety cases up to and including High Court level throughout the country. The Unit is established in three separate geographical bases: Scotland West, Scotland North and Scotland East. It is intended that this compact team will develop a strong control of this field of work, and will be able quickly and effectively to reinforce and improve existing communication channels with the local Health and Safety Executive and other reporting agencies. Most importantly from the practitioner’s point of view, it is also anticipated that the lines of communication with agents and representatives of accused parties will improve with the establishment of clear areas of responsibility and contact points and the promotion of the establishment of a means to discuss cases at all stages of a prosecution.
In a very significant development, it is also intended that the Unit will have responsibility for the preparation and conduct of Fatal Accident Inquiries arising from health and safety cases.
Key Players and Contact Points:
The Unit will be led by Elaine Taylor, an experienced Senior Depute member of the Procurator Fiscal Service, who will be based in Scotland West, and assisted by a dedicated Principal Depute. Ms Taylor will have day to day responsibility for the work in Scotland West and will also have line management responsibilities for the Scotland North and Scotland East bases.
• Scotland West: comprising the Glasgow and Strathclyde areas and Dumfries and Galloway (based in Glasgow) to be overseen by Elaine Taylor.
• Scotland North: comprising Highland and Islands, Grampian and Tayside (based in Aberdeen) to be overseen by Ernest Barbour, Principal Depute.
• Scotland East: comprising Central, Fife and Lothian and Borders (based in Edinburgh) to be overseen by Angie Main, Principal Depute.
The establishment of a consistent approach to the prosecution of health and safety matters, and health and safety FAIs, will be a key objective, and to that end Crown Office has appointed a Senior Advocate Depute to have special responsibilities towards the Unit and to provide a resource to the Unit in matters of complexity. As the advocate depute assigned to this role, Gary Allan said “I am convinced that a dedicated Advocate Depute will help to nurture a strong sense of team work, and will allow policy implementation and consistency to be developed and carried through all cases, whether these are to be in the sheriff summary court, the sheriff and jury court or the High Court of Justiciary”.
“The challenge has been very exciting and I am convinced that the Crown’s initiative will assist not only the efficient prosecution of these very anxious cases but the needs of practitioners too in securing quick and reliable lines of communication with the Crown’s experienced representatives, which can only be to everyone’s advantage”.
2. Crown Appeal against Sentence in Health and Safety Prosecution: Appeal Court Guidance on Sentencing Factors:
HMA v Munro & Sons (Highland) Limited [2009] HCJAC.
On appeal by the Crown, the question for the Appeal Court was whether the fine imposed by the sentencing judge was unduly lenient. Munro Ltd had been charged on indictment with an offence under section 3(1) HSWA 1974. A plea was entered, an agreed narrative presented on behalf of the Crown and, having heard Counsel for the company, the court imposed a discounted fine of £3,750.
The Appeal Court observed that, whilst there have been occasions in the Scottish courts where the appropriate level of fine has had to be considered, it had not previously issued a reported judgement where the relevant considerations for the court when assessing the appropriate level of fine had been discussed at length.
What are the relevant considerations for Scottish courts when seeking to identify the appropriate fine for a contravention of H & S legislation?
Under reference to, firstly, the principles identified by the English Court of Appeal in R v Balfour Beatty Rail Infrastructure Limited [2007] 1 Cr. App. R. (S.) 65 (for link see below) and, secondly, the Sentencing Advisory Panel’s “Consultation Paper on Sentencing for Corporate Manslaughter”:
HELD (Opinion of the Court delivered by Lord Nimmo Smith) – in allowing the appeal and increasing the discounted fine to £30,000), that: (i) the gravity of the offence, any aggravating/mitigating features and the ability of the accused to pay a fine should be taken into account; (ii) the policy underlying section 3 HSWA 1974 and the public interest in the requirement that the accused should be “punished for its culpable failure to pay due regard for safety, and for the consequences of that failure”, should be borne in mind; and (iii) any fine should “serve the purposes of retribution and deterrence, and thus serve as punishment without bringing a company to its knees”.
Obiter – where a company has been convicted of an offence under H & S legislation, it is for the company to place before the court sufficiently detailed information about its financial position to enable the court to see the complete picture without having to resort to speculation – “…it may in some cases be thought appropriate to lead the evidence of an accountant.”
To read HMA v Munro in full, follow the link:
http://www.scotcourts.gov.uk/opinions/2009HCJAC10.html
To read R v Balfour Beatty in full, follow the link:
http://www.bailii.org/ew/cases/EWCA/Crim/2006/1586.html
3. FAIs – Important Reminder:
Written responses to the consultation questions identified by the Cullen review of Fatal Accident Inquiries are due by 20th February 2009.
To access Online Response Form, follow the link:
http://www.scotland.gov.uk/About/fatal-accident-review/20094258/0
|
Compass Chambers