The reporting of Health and Safety cases, and dealing with the media in general, is radically different in Scotland from that south of the Border. This is of course due to the fact that the prosecution of all crime in Scotland is the function of the Lord Advocate, assisted by Procurators Fiscal as local agents. The Lord Advocate is accountable to the Scottish Parliament for the work of Crown Office and all Procurators Fiscal.
Unlike the position in England, where the HSE is ultimately responsible for decisions relating to and the conduct of prosecutions, once you have submitted your report to the Fiscal your function in relation to the investigation of that alleged crime usually ends.. You may be asked by the Fiscal to make further enquiries or to collect additional evidence, but you will not be involved in the decision as to whether the case is to be prosecuted.
Although HSE does have its own press office it does not issue Operational Notes in respect of Scottish cases, given this division of responsibility.
All health and safety inspectors and personnel must exercise caution when dealing with the press, especially once a report has gone to the Procurator Fiscal. All reports to prosecuting authorities (whether from HSE or not) are confidential and their contents should not be disclosed to any extent.
The law both in Scotland and in England and Wales on the extent to which information relating to legal proceedings can be disclosed is found in the Contempt of Court Act 1981. The Lord Advocate in the light of this Act has issued guidelines to the police on issues such as defamation and the effect of issuing information on the development of an enquiry. The guidelines are of equal relevance to investigating Inspectors and should be followed.
There are two forms of contempt of court. The first is the common law crime; this includes for example interfering with the administration of the law or attempts to pervert the course of justice. The second type of contempt, statutory contempt under the Contempt of Court Act 1981, relates to the publication or reporting of criminal, and other legal, proceedings. The statutory offence occurs when material is published that would "create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced" (s.2(2)).
However, publication of prejudicial material will be treated as contempt under the rule of strict liability, only when proceedings are "active", i.e. in Health and Safety cases, when the indictment or complaint has been served.
In a case involving the Glasgow Herald Newspaper1, the Lord Justice General stated
"…we think it desirable to mention that we were informed by Counsel for the Respondents that the offending material which, on publication, constituted the admitted contempt of Court, was mainly derived from a Press Association release which was, in turn, derived from information supplied by Police sources South of the Border. We have had occasion before to question the wisdom of the provision of such information by the Police to the Press at least at any time after a person to whom it relates has been arrested on criminal charges."
This highlights the tension that can arise between English practices and the traditionally stricter Scottish approach to contempt of court, and would apply equally to information provided by HSE.
The safest course if contacted by the media in relation to an accident or investigation is to simply state either that a report has been/will be submitted to the Procurator Fiscal or that an investigation is ongoing.
Criminal proceedings cease to be "active" where the accused is sentenced or acquitted. However, proceedings will become "active" again if a written intimation of appeal is lodged and the strict liability rule under the Contempt of Court will apply.
Once proceedings are complete, then in some cases it may serve HSE's purpose to publicise the outcome, by press release or through interviews with journalists. A press release may be drafted by COI who should always be consulted. They can also advise on, and sometimes manage, interviews particularly TV and radio interviews. For sensitive or high profile cases it would be prudent to consult the Fiscal on publicity after the case, but it is very much for the enforcing authority to manage this process.
If any reference is made to the case, then any statement must reflect what was said in court and must reflect the conviction obtained. For example, if the charge was amended then any HSE statement must not refer to any matter taken out of the charge.
In any statement after verdict no adverse comments should be made on the conduct of the case or the outcome. HSE's focus should be on the importance of the proper control of risks, learning lessons, compliance with the law, and on emphasising that serious breaches are likely to result in similar serious outcomes.