The decision to prosecute
The decision whether or not to prosecute is one entirely for the Procurator Fiscal. Before proceeding with a case the Procurator Fiscal must be satisfied by way of corroborated evidence
- that the case is within the jurisdiction of the court;
- that an offence has been committed;
- that the alleged offender committed that offence and is therefore liable to prosecution; and
- that there is sufficient evidence to prove beyond reasonable doubt both that the offence was committed, and by whom.
The criteria that the Fiscal will consider are explained in the Crown Office and Procurator Fiscal Service Prosecution Code. This sets out the criteria for decision making and the range of options available to prosecutors dealing with reports of crime. When the police and other reporting agencies send the PF reports of crime, the PF will decide whether to begin criminal proceedings or whether to take alternative action. Such decisions must reflect the values of the department namely:
COPFS have also endorsed the HSC Enforcement Policy.
If any one of these criteria is not met, the case must be marked "no proceedings". The Fiscal may however request further information or clarification before reaching a decision. If the Procurator Fiscal is satisfied that all four have been met, he has a number of options open to him and his discretion is very wide. He may choose to prosecute and the choice of court is one entirely for him.
Even if there is sufficient evidence to justify proceeding the Fiscal may decide that it is not in the public interest to prosecute.
Although s136 of the Criminal Procedure (Scotland) Act 1995 removes the 6 month time limit (ie from date of offence to commencement of proceedings) for the majority of HSW cases, it must be remembered that it still applies to those offences which are only triable summarily, such as obstruction type offences under s33 HSWA, offences under ELCI, and the Supply of Machinery (Safety) Regulations 1992, and those offences where the enactment fixes a different time limit. In the context of Health and Safety legislation, the result is that offences which are triable on indictment or summary complaint will only be subject to time limits before the commencement of proceedings on summary complaint where the particular provisions of s.34 HSWA apply (ie in relation to prosecutions following Fatal Accident Inquiries, design/manufacture/supply etc cases, which include design cases under the Construction (Design and Management) Regulations 2007, and gas cases).
In those cases mentioned in s34(4) and (6) of HSWA, it is crucial that a certificate certifying the date on which HSE had sufficient evidence to justify a report to the Procurator Fiscal is sent along with your report. This will be the date when the evidence comes to the knowledge of the person approving the report which, in practice, is likely to be the date of approval. Requests for certificates should be sent to Solicitor's Office in London, along with the relevant case papers, ie a copy of the draft complaint and a brief summary of the case, including reasons for any lengthy delay.
Timeliness of reports
Whilst pleas to the competency of summary proceedings on the grounds of delay should now be less frequent, delay on the part of the Crown in initiating proceedings might well justify a plea of mora (delay), giving the court the right to refuse to deal with the prosecution, either on summary complaint or indictment.1
Reports should normally be sent to the Procurator Fiscal within 4 months of the date of the offence. If it is likely to take considerably longer to submit a report then this should be discussed with the Fiscal and reasons given.
Where the case involves a work related death then consideration should be given to the requirement on the Fiscal to report to Crown Office within 2 months. If it is not possible to send a report in that time then an interim report should be sent, or at least the investigation discussed with the Fiscal. (See Work Related Deaths Protocol Scotland [228KB].)
Approval Prosecution Reports
Reports prepared by Band 3/4 inspectors should be submitted to the appropriate Band 2 inspector for approval, except in cases where prosecution on indictment is recommended, when the report should be submitted to the appropriate Band 1 inspector. Reports prepared by Band 2 inspectors should also be submitted to the appropriate Band 1 inspector for approval.
The role of the approving inspector is essentially to check that prosecution is in accordance with the HSC Enforcement Policy Statement, that the charges are appropriate and that the evidence is there to substantiate them. A greater level of scrutiny may be more appropriate, depending on the experience of the reporting inspector, or the complexity or sensitivity of the case.
Reference should be made to Assuring the independence of prosecution decisions [80KB] regarding the independence of prosecution decisions. Although this instruction is designed for England and Wales the policy outlined in the Operational Circular should be followed in Scotland for prosecution approval decisions, even though the final decision on prosecution is for the Procurator Fiscal.
1. See Tudhope -v- McCarthy 1985 JC 48; McFarlane -v- Jessop, 1988 S.L.T. 596, McFadyen -v- Annan 1992 SCCR 186.