TUESDAY 23 NOVEMBER 1999

MR BILL CALLAGHAN, MS JENNY BACON AND MR DAVID EVES

  260. How does that equate to the deterrence effect?
  (Ms Bacon) The deterrence effect is only achieved if we secure a conviction with a high penalty.

  261. But you just spoke about it taking up too much time and not being able to secure a conviction?
  (Ms Bacon) Yes, and we make the judgment at the beginning of any investigation and subsequently about whether we prosecute as to whether we have got a reasonable prospect of success.

  262. So it is not based on the use of your time, which you suggested it was?
  (Ms Bacon) It is not solely based on the use of our time. That is one of the considerations. As I say, we have to balance an enormous number of things in making these judgments. I am quite content that the issue of the balance of the use of resources should be debated in public. We opened it up in May this year when we published a strategic plan. We said: "Have we got the balance right? Give us feedback, so that we can consider it for the next year's plan". It was also opened up in the Government's strategic appraisal document published this summer. I think it is fair to say that the responses we have had on both of those have not indicated an enormous re-balancing. What they have said is that it might be a good thing if HSE had some more resources so it could put it into inspection—but that is not for me to comment on.

  263. That is slightly disingenuous, is it not? What you are really saying is the public should be the people who gauge whether these criteria you lay down are the accurate ones. It sounds (and you will forgive me saying this) as if you only prosecute when you are absolutely 100 per cent. certain of getting a conviction; when you are not only convinced of that, but you are convinced that whatever the penalty is it will be a punitive penalty. That must automatically cut out large numbers of cases where the public might think it was a good thing to prosecute?
  (Ms Bacon) We certainly do not prosecute when we are only certain we will achieve a success. I think that is fairly obvious from the fact that in fact we only achieve a conviction in something like 35 per cent. of defended cases. Overall it is more like 83 per cent., but in defended cases it is only 35 per cent. Quite clearly, we are chancing our arm.

  264. So your judgment is not that good even if you are only prosecuting in 6 per cent. of cases?
  (Ms Bacon) We are trying to err on the side of prosecution where we think we have got a reasonable (i.e. better than 50 per cent.) case. Like any other prosecutor, we win some, we lose some. None of these things can be certain in advance. We certainly do not want to err on the side of caution so far that we only prosecute in cases where we are sure of conviction. That would be completely against the public interest. I am not saying I think the public should be the determinant of this. I am saying, I think we should listen to what the public is saying about where the balance of interest lies.

  265. With respect, all public institutions should listen to what the public is saying. It is one of those old fashioned things that happens in a democracy. What concerns the Committee is something different. The criteria you lay down are very restricting: law of diminishing returns; beyond a certain point; you must have the evidence; it must be in the public interest; it must be a severe breach; it must be a real deterrent; and we must not have a low fine. How on earth do you guarantee that combination unless you cut out anything that is not actually so severe that it results in severe numbers of deaths, large numbers of deaths?
  (Ms Bacon) It does not result in a severe number of deaths. What we are doing is deciding whether to investigate severe numbers of deaths already that have taken place. What we are trying to do is to make sure we devote resource to prevention of the major injuries, to prevention of fatalities.

  266. The best way to do that, surely, is the deterrent effect of a successful prosecution?
  (Ms Bacon) Yes, of a "successful prosecution", quite. As I pointed out, in fact we err on the side of taking defended cases, where we lose over 50 per cent.[1] of the defended cases. There are many other things we can do which will stop people being harmed—including using improvement notices and prohibition notices, which we happen to think are more effective in many cases than taking a prosecution. That is the element of our armoury that probably we want to see being more used. If we were to investigate all the accidents reported to us, we would need to increase our resources of inspectors by something like five-fold, even if we did no preventive inspection; that is the kind of balance we are looking at.

  267. Who would advise you as to whether you took forward a prosecution?
  (Ms Bacon) We will have advice, in the first instance, from our in-house solicitors. We will then get advice from Queen's Counsel as necessary, if it is a severe case, or solicitor agents. The initial decision, obviously, is taken by the inspector who has done the investigation. It is then agreed with his line manager that this is something that is worth taking forward, and it is then discussed with the lawyers.

  268. Why do you fail then in so many of your prosecutions?
  (Ms Bacon) Because it is a chancy business, and because we do not want to be unduly restrictive. We cannot satisfy both cases of appearing to cream off only the ones where we are certain to win and not run the risk also of failing in some of the defended cases. It is becoming increasingly difficult to win cases, because people do realise there is a stigma attached to being "done" for a health and safety offence, and more cases are being defended by more competent lawyers.

  269. Have inspectors got sufficient powers to get evidence? Can they call people to take them through the interrogation?
  (Ms Bacon) Yes.

  270. They have the powers to get good evidence if they need to?
  (Ms Bacon) They have the powers to get good evidence if good evidence is available.

  271. Do you think you are competent as an organisation to prosecute if you have such levels?
  (Ms Bacon) I think we are competent to investigate and to make sure the right people do the prosecuting. We do not do all the prosecuting by any means.

  272. It does not seem you have the right people to do the prosecution if your case victory is so low?
  (Ms Bacon) If you compare it with the overall success rate in criminal courts I think you will find it is reasonable.
  (Mr Eves) We do not prosecute in Scotland, of course. We prosecute through the Procurator Fiscal, and the success rate is about the same.
  (Ms Bacon) It is lower.
  (Mr Eves) I was being kind!

  273. Is it lower or is it the same?
  (Ms Bacon) It is lower.

  274. You have had a substantial increase in your funding and you have produced a budget from that and you have deployed your resources perhaps differently than before. Could you tell me how much of those resources are going into inspection?
  (Ms Bacon) Yes, the majority is going into inspection of one kind or another. I should say, some of that resource was in response to a bid from us for more resources for nuclear, railways and major chemical hazards inspection and safety case regimes and approvals—which are major high hazard areas where there was new work, new demands; so part of the resource is going there, rather than into the field operations, which some of you went round and saw what we are doing. We are, nonetheless, trying to rebuild our basic field inspectorate by something in the order of 30 per cent. over four years.

  275. How easy will it be to do that when, compared with the Environment Agency, you pay your qualified and highly experienced inspectors quite a low rate? Furthermore, how can we achieve the element of inspection that you, the Executive, Commission, Government and we all desire if your poor inspectors are bogged down by doing mundane administrative tasks and their own typing?
  (Ms Bacon) We have absolutely no difficulty in recruiting basic field inspectors whatsoever. We have had extremely good recruitment and far more applicants—

  276. You do not have extremely good retention of your more senior engineers?
  (Ms Bacon) We have a normal turnover rate of something like 2-3 per cent. I think it would be unhealthy if it were lower than that. We have got one or two small areas of deep specialism—for example, well specialists on the offshore side—where we have had difficulty on recruitment and retention; but that is a very small part of our overall inspection force. As far as pay is concerned, we are obviously working within the Government's overall pay policy; and we are working within a long-term pay agreement that is agreed with the unions, and is currently being evaluated; and we will see what comes out of that in helping us with some of the problems we know we have on pay. We would be very foolish to think we could resolve all the problems of market-related pay as perceived by some of our specialist groups.

  277. Crucially, are you going to allow our highly qualified inspectors more time in the field and less time typing up reports in the office?
  (Ms Bacon) We have been doing our level best to make sure our field inspectors do get out on the job more. One of the things that has tended to tie them down is not typing, because increasingly inspectors are finding the ability to use a PC with them on the job is saving them an enormous amount of time; and certainly the younger ones have no difficulty in doing that whatsoever. However, the thing that is keeping them in the office is handling complaints.

  278. How many have actually got a PC with them.
  (Ms Bacon) I think it is all of them.
  (Mr Eves) Everybody has a PC.

  279. Out with them, as opposed to one they can go back to in the office?
  (Mr Eves) Very few at the moment have portables, but anyone who wants one voluntarily can have such a thing.