IOSH EDINBURGH BRANCH
Minutes of 189 Edinburgh Branch Meeting
Craighouse Campus, Napier University, Edinburgh – Thursday 14 February 2008 - 130pm
Sederunt: J Reid M Sayed B Cox I O’Neill D Cawkwell F Higgins
D Forfar M Bancroft R Reed B Morris P Graham A Diment A Milne
C McGlade A McNeil B Howden D Raeburn AG Dick R Lovering S Boucher
C Watt M Dunne G MacGregor J Fisher D Ward A Smith R McLean
I Munro A Polhill A Goodacre S McMorland I Sinclair S Wilson R Walker
I Murray C Castell V Stewart G McGeorge L Young G Lyall N Barclay
A McLeod C Shiels D Fitzsimmons K Drum T Ambler E Park G Pearson
P Valente P Gibson K Lloyd F Lindsay K O’Donnell D Sinclair P Veitch
C McGregor N Howden S Stanfield P Keogh S McColm J Hepburn A Curran
A Bell L Roberts R Turner D Stephen F Dickson A Sharman J Watt
3 Correspondence:
Reserve your place: Joanne Blair: 0131 272 8333 E joblair@McClureNaismith.com
Forth and Tay District: Had had a successful AGM with Allan Thomson taking over as Secretary now and Dr Paul Szawlowski taking over as Vice-chair with a view to succeeding Dr Karen McDonell who would step down next year.
Public Services: Marion Johnstone reported that the National Safety Sympsoium – Cutting Edge Safety – would be 7-9 Sept. The guidance for elected members was with the publishing dept at The Grange.
Construction: Allan Dick reported on the changes to the group at national level following the Specialist Groups’ Review. It had morphed into IOSH Construction Group and had one of the larger committees amongst the Groups reflecting its membership within IOSH. He had been appointed Training Champion. Not all the roles had been filled and there was an opportunity here to get involved at national level for members.
He also reported that Construction 2009 would be held in Edinburgh with the title “Construction in a Multicultural World”
Fire Risk Management: Paul Graham reported on and displayed standardised Fire Risk assessment forms with worked examples aimed at small business available from Scottish Healthy Working lives.
Any members requiring Dave’s Powerpoint presentation please contact the Secretary.
One member sought advice due to problems arising in the construction field – the new CDM regulations were seen as more onerous on Project Managers and she was experiencing PMs refusing to accept responsibility especially with respect to client’s duties. Several members offered their advise and assistance.
The speaker was introduced by the Chair by stating some of his background including his University Degrees from Aberdeen and Glasgow and his training as a Solicitor from which he has spent some 30 years as an investigator and prosecutor.
The speaker then said he had been given a remote control for the slides which apparently included a laser pointer and if he used it wrong and blinded someone with it then they should see the Chair for compensation – oh I guess they won’t be able to “see” anyone at that stage.
Powers of Lord Advocate & Procurators Fiscal
The office of the Procurator Fiscal goes back to the 15th Century and was originally associated in gaining fines, whereas nowadays they are more linked with gaining information rather than money.
They have extensive Common Law powers which are probably greater than those of the Police which is why the Procurator Fiscal can in fact “instruct” the Police.
They can issue warrants and seize items which will be originals rather than copies which are normally gained by HSE and they will undertake “Precognition” and “Precognition on Oath”
Powers of HSC / HSE
The enforcement powers are set out in detail in the HASAW Act of 1974 under sections 18 to 26 and the powers of the Inspectors are detailed in section 20 as –
· To enter premises
· To take a constable with them
· To take another person authorized by the enforcing authority & relevant equipment and materials with him
· To examine and to investigate and to this end require premises to be left undisturbed, take measurements, photographs and recordings and require information from any person
· To take samples
· To dismantle or test any dangerous article or substance and take possession of it for the purpose of examination or use in legal proceedings
· To require the production of books and documents and necessary facilities and assistance
· Any other necessary powers
This differs particularly from the Procurator Fiscal in that they may be experts in a particular field whereas the Procurator Fiscal is an expert in Investigation & Prosecution.
Protocols
There are a number of protocols which the Procurator Fiscal will follow including –
· Work Related Deaths Protocol (This the one which the speaker intends to concentrate upon)
· WRDP Guidance Notes (although these are currently in draft format)
· HSE, ACPO(s), BTP and COPFS no Local Authorities yet
· General Protocol
· HSE and COPFS
Most of which are related to best practice joint working arrangements
How the “Work Related Deaths Protocol” works in practice
As stated it is very much a joint working arrangement. The Police and the Procurator Fiscal take the lead (with HSE assistance) in deciding on the seriousness of the event
· Agreement on strategy
· Evidence gathering
· Interviews
· Productions
· Media handling – and they need to be fed something to prevent speculation, but the level of information must be controlled to prevent mistrials
Evidence Gathering
The Procurator Fiscal will arrive on site after the Emergency Fire / Ambulance services have finished their work and will at that stage become the Crime Scene Manager – sealing it off and preventing anyone else access as they may disturb of destroy evidence. They will take in a pathologist; forensic Scientists and photographers to gather information and everything will be coordinated and controlled by a productions officer.
Autopsies
It is the Procurator Fiscals duty to identify correctly any bodies and under Scot’s Law there must be a corroborated autopsy – having two sources of reference utilizing suitably qualified pathologists. For instances of multiple deaths it is down to the Procurator Fiscal to gain suitable mortuary facilities as the normally available facilities may not be suitable. They will then be required to preserve evidence, keeping post mortem samples and X-Rays (particularly when there has been a fire or explosion).
The Defence will then have the opportunity to undertake their own autopsy after which the bodies may be released. This can be problematic in itself if they are of foreign nationals and especially if there are any conditions placed on the release (e.g. not to be cremated)
Evidence & Interviews
If a “Dying deposition” or “Dying declaration” is to be taken there is a requirement for the person making the deposition/declaration that they have been told and are aware that they are dying.
Interviews undertaken by the Procurator Fiscal and the Police are normally more direct and forceful in the way they are conducted and in the outcome than those taken by the HSE and information gathered can be presented in Court without having to first “caution” the accused.
Additionally the Police have powers to detain persons while questioning them especially an in homicide case which is not the case for the HSE.
Productions
The reports prepared under section 20, search warrants gained and evidence gathered under very wide ranging common law powers will be collated and controlled by the Productions Officer. It is at this stage that “originals” will be seized which may include computers to check on first drafts reports and noting the “changes log” where evidence has perhaps been “developed” over a period of time
Media
As indicated earlier, it is important to keep the media on side, but it is preferable to channel all the contact with the media through one single outlet – be it Procurator Fiscal, Police, Fire HSE etc, in this way it will hopefully be accurate without conjecture and will avoid any possible contempt of court by limiting the amount of information and hence prevent any mistrial due to the amount of pre-trial publicity.
Charges
These can be very wide ranging in themselves, from Homicide (which carries an automatic life imprisonment); through Culpable homicide; Culpable & reckless conduct; and the full range of HASWA offences under sections 2, 3, 7 & 37 plus the various regulations.
The charges could be a combination of charges and it is best to also consider what alternatives are available, but it has to be remembered that the complexity of the case needs to be controlled for presentation to a jury and their subsequent understanding.
The speaker indicated that he follows the old acronym of KISS = Keep It Simple & Short and he uses a similar style of information presentation to the old TWI job-instruction technique of =
· Tell them what you are going to tell them
· Tell them
· Tell them what you told them
So typically the events will follow a pattern of
· Reports
· Precognition
· Report to the Lord Advocate
· Prosecution
· Fatal Accident Inquiry
· Public Enquiry
Then it may start all over again in the form of
· Appeals
· Judicial review
· Scottish Criminal Cases Review Commission
Then – and only then can the final stages of disposal of production be considered
And in conclusion
The normal H&S Event of major incidents etc the Procurator Fiscal will be advised by the HSE on the actions to be taken, but for the more serious crimes the Procurator Fiscal will take the lead whilst the protocol will be followed for the Work Related Deaths.
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Max Bancroft, MRSC, CMIOSH Branch Secretary |
Richard Lovering, CFIOSH Branch Executive |