Select Committee on Public Administration Minutes of Evidence


Annex B

REVIEW OF INQUIRIES AND OVERLAPPING PROCEEDINGS: PRELIMINARY REPORT

REMIT OF STUDY

  1.  In this preliminary report we consider whether there is scope for combining criminal, civil and other proceedings with a public inquiry. We also consider ways of improving the relationship between, and the sequence of, different types of legal proceedings that can arise out of the same or related circumstances ("parallel proceedings") and whether the delay, cost and the risk of prejudice involved in such proceedings can be reduced. Our recommendations for further consideration (set out at Appendix A) are made on the basis that they will need further study for their full implications.

CONSULTATION WITH OTHER GOVERNMENT DEPARTMENTS AND AGENCIES

  2.  We were aware that extensive consideration had already been given to many of the issues involved, so decided to start our review by consulting those Government Departments and agencies with relevant experience of inquiries and investigations. We have listed those we consulted at Appendix B and we would like to record our appreciation of the generous help they gave us. As a basis for our discussions we prepared a summary of the difficulties we foresaw. This is attached at Appendix C. At Appendix D we have listed the documents we consulted to derive the background to the issues.

PUBLIC VS PRIVATE INQUIRIES

  3.  Public inquiries may be set up under different regimes eg

      (a)  Under express statutory power;[40]

      (b)  Under the Tribunals of Inquiry (Evidence) Act 1921;

      (c)  Under powers impliedly conferred by Statute;

      (d)  As ad hoc Inquiries into matters of public concern.

  Some of those we consulted had extensive experience of both public and private inquiries and we found their advice on the relative advantages and disadvantages of each most helpful. As an individual's criminal or civil liability is required to be determined at a fair and public hearing,[41] proceedings will need to be held in public if such liability is to be determined as part an inquiry.

PRESENT DIFFICULTIES WITH PUBLIC INQUIRIES: PUBLIC EXPECTATIONS

  4. In the course of our consultation we noted the views of experienced officials who firmly believe that public inquiries today are not achieving the original objectives for which they were set up. These objectives were set out in the synopsis of the officials' working group on inquiries and criminal proceedings.[42] They include a detailed but speedy investigation of the facts leading to the accident, occurrence or situation to establish how it occurred and how it can be avoided in future. Additionally, after a serious disaster, there is a public expectation that an inquiry will establish whether anyone should be held criminally responsible. The overall aim of a public inquiry is to allay grave public concern,[43] and to restore public confidence.

INQUISITORIAL NATURE OF PUBLIC INQUIRIES: THE EFFECT OF THE "SALMON" PROCEDURE

  5.  The focus of the investigation carried out at a public inquiry is to establish the circumstances and the cause of the accident or occurrence. It is not concerned with blame, or civil responsibility. It aims to discover the true facts by an inquisitorial process.[44] Evidence received by the inquiry about the events and the actions of those involved may, however, imply fault. In the interest of fairness, the person affected is entitled to be informed of any criticism, to be represented, and to take part in the proceedings with a view to exonerating himself.[45] The procedure is then vulnerable to adversarial conventions which can greatly prolong the inquiry. This is particularly the case when many individuals become entitled to take part, and do so with legal representation provided at public expense.

MEDIA INTEREST

  6.  The adversarial process also tends to stimulate media interest giving greater publicity to adverse criticism of individuals concerned. This may, in turn, affect the quality of the evidence produced to the inquiry. Recent experience of public inquiries where many parties have been represented has led officials to conclude that an inquiry can very often be more effective if held in private, but with its report being made public on conclusion. We recognise, of course, that there will be circumstances in which a private inquiry will not be appropriate.[46]

DIFFICULTIES IN SECURING PROSECUTION AFTER INQUIRY

  7.  When an accident causes loss of life or serious injuries, relatives and victims generally feel that those responsible should be identified and prosecuted in the criminal courts if a criminal offence has been committed. In some recent inquiries relatives and victims have become dissatisfied because there has been no prosecution, and they have persisted in pressing for charges to be brought. Dissatisfaction tends to be most keenly felt when no charges are brought against the management of a company or corporation perceived to have put public safety at risk. The difficulty of proving a charge of manslaughter in these circumstances is well known,[47] but relatives and victims are not always impressed by legal difficulties.

UNDERTAKINGS

  8.  In some cases to enable the inquiry to reach the truth it has been found necessary, in the public interest, for witnesses to be given formal undertakings that the evidence they give to the inquiry will not be used in any subsequent criminal prosecution. These undertakings apply only to the use of evidence given to the inquiry. They do not preclude prosecution if sufficient other evidence to prove an offence is available.[48] The use of undertakings is considered important as it encourages witnesses to disclose what they know with the utmost candour. The decision to give undertakings is taken by the Attorney General, sometimes at the request of the inquiry chairman, and sometimes after discussion with the witness's legal representative. Because the reasons for giving the undertaking are not made in public, however, relatives or victims attending the inquiry hearing may not always understand why the undertaking has been given, or its effect.

  In summary, in spite of the best efforts of the most able and experienced chairmen, a public inquiry often fails to meet its fundamental purpose and the expectations raised in the public mind when it is announced.

NEED TO SPEED UP THE INQUIRY PROCESS

  9.  Although it is obviously important to try to reduce the extent to which parallel proceedings overlap, our consultation exercise also indicated that combining several different proceedings with a public inquiry is likely to prolong the hearing, and further delay publication of its report.

  It seems to us that it is at least as important to try to speed up the inquiry process, to increase public awareness of the difficulties of satisfying all its expectations, and to consider the possibility of eliminating the repetitive nature of some of the individual processes.

CIRCUMSTANCES GIVING RISE TO PUBLIC INQUIRIES

  10.  The circumstances giving rise to the need for a public inquiry vary greatly. In recent times the most frequent calls for public inquiries have arisen in the following circumstances:

      (a)  Accidents causing loss of life in the course of transport by sea, land or air, or arising from    construction operations, employment or industrial processes;

      (b)  Medical catastrophes;

      (c)  Serious administrative failure, eg failure to detect or forestall child abuse;

      (d)  Financial collapse, usually, but not always, involving serious fraud.

INTEGRATING A CRIMINAL TRIAL WITH THE INQUIRY; PRIORITY OF PROCEEDINGS

  11.  We consider the most formidable difficulty of our study is the attempt to integrate a criminal trial into the inquiry procedure. As Lord Scarman said in the course of his opening statement at The Red Lion Inquiry, ". . . It is not the object of this Inquiry to label people as offenders against the criminal law . . ."[49]. Some of the evidence collected for the purpose of the inquiry, however, may be sufficient to support a prosecution against a person involved. The issue of priority of proceedings may then arise.

  This issue was considered by an officials working group under the chairmanship of the Lord Chancellor's Department which met between May and November 2000.[50] The group drew attention to the competing interests which might have to be resolved. Our consultations did not indicate that such difficulties arose in practice. Save in exceptional circumstance, the interest of ensuring a fair trial in criminal proceedings is paramount. If there is a real risk that an inquiry held at the same time may cause prejudice to the accused, it will be necessary to decide which of the public interests involved should prevail. Any combined process would have to satisfy the provisions of Article 6 of the ECHR, the evidential requirements of a criminal trial, the right of the accused to elect trial by jury in serious cases and the need to guard against prejudice.

  The integration of the trial itself does not seem to us to be practicable at present. In his review of the Criminal Courts[51] Lord Justice Auld made some far reaching recommendations for liberalising the technical rules of evidence which, if accepted, might alleviate the difficulties posed by the present evidential requirements of the criminal trial. Similarly, Lord Justice Auld's proposals concerning the right to elect trial by jury in serious and complex fraud cases, if accepted, could make a combined process more acceptable.[52]

  It might be possible to invest a legally qualified chairman with the powers of an examining magistrate (along the model of the continental juge d'instruction) to enable the inquiry to consider whether there is sufficient evidence to justify the trial of a criminal charge.

INTEGRATING CIVIL CLAIMS INTO THE INQUIRY

  12.  We see similar difficulty in trying to incorporate the decision of civil claims into the inquiry. Article 6 of the ECHR applies equally to the determination of civil rights and obligations. Serious objection could be taken to the fairness of proceedings in which individuals other than the claimant and defendant have taken part, and have given evidence that would not have been admitted if the civil proceedings had been heard separately. However punctiliously the inquiry chairman may filter the evidence and impartially approach his decision, a claimant or defendant might complain that the decision had been subconsciously influenced by inadmissible evidence.

IMPROVING INQUIRY PROCEDURES

  13.  The inability to unite a criminal or civil trial with an inquiry does not, however, preclude an attempt to identify improvements to particular aspects of the procedure of the inquiry, and its relationship to parallel proceedings. The success of the inquiry rests heavily on the efficiency of the original investigation process.

  We consider that the powers of investigators should be reviewed to decide whether they need to be increased.

  We also consider that there should be a review of inquiry procedures with the aim of reducing delay and expense.

  We also think that further consideration should be given to trying to eliminate duplication in different proceedings based on the same or related facts, and to combining individual aspects of some of the various proceedings.

ESTABLISHING AN ACCIDENT AND DISASTER BUREAU OR DISASTERS OMBUDSMAN

  14.  From time to time it has been suggested that a permanent agency such as an Accident Bureau should be set up to take charge of the investigation of major disasters.[53] Another suggestion is that an Ombudsman should be appointed to decide whether an inquiry should be held and, if so, the nature and extent of the inquiry.[54] It is argued that important decisions about the scope of the investigation and the inquiry should be decided independently of government. We accept that in setting the scope of an inquiry which might criticise a Government Department there might be the temptation to restrict the inquiry's terms of reference. But in the majority of cases no such question will arise.

  We are not convinced that there is a need either for a permanent Accident Investigation Agency, or for a new disasters Ombudsman.

PROCEDURES OF EXISTING ACCIDENT BOARDS

  15.  We were greatly impressed with the detailed accounts given to us of the procedure adopted by the Air Accidents Investigation Board and the Marine Accidents Investigation Board and we commend proposals made recently by the Department for Transport for the creation of a Rail Accident Investigation Board after the same model.[55] The Health and Safety Commission has wide powers under the Health and Safety at Work etc Act 1974[56] to appoint an inquiry into any accident or occurrence connected with the general purposes of part 1 of that Act. The Health and Safety Executive has considerable experience of investigating serious industrial accidents, and can deploy an experienced organisation with the necessary specialist skills.

DIFFICULTIES WITH CONTEMPORANEOUS INVESTIGATIONS: APPOINTING A CHIEF INVESTIGATOR

  16.  Generally the officers of the local police force will be first on the scene of a disaster. Other agencies may also carry out an investigation independently, and at the same time. Each police force has a senior officer capable of taking charge of serious incidents, and protocols exist between the police forces and other investigating organisations to ensure co-operation with one another. We were, however, told by one senior police officer with considerable experience of accident investigation that the progress of an investigation might be improved if a person were appointed as Chief Investigator. This person would be available to take charge of an investigation from the outset and would ensure the setting up of the appropriate infrastructure (such as the Holmes computer system and the availability of the necessary experts), and would direct the lines of enquiry. We were told that enquiries at some investigations have been hampered by the absence of a power of entry to obtain documents and articles relevant to the incident.[57] At present investigators believe that—with legal advice—parties with significant documents can easily delay production of potentially important material by insisting that investigators resort to time-consuming and expensive procedures. In our interview with the British Transport Police we were given a graphic example of this[58] and told that the number of officers involved in the exercise had serious consequences for the ordinary work of the force.

  We consider that further consideration should be given to the creation of a permanent post of Chief Investigator. We envisage that the person appointed would be responsible not only for overseeing the investigation, but also for directing any necessary expert examinations and for preparing a file for the inquiry chairman, setting out the results of the investigations. This file would normally form the basis of the evidence given to the inquiry and thus of its findings of the events and actions which led to the occurrence.

LORD JUSTICE CLARKE'S VIEWS

  17.  In his final report of the Thames Safety Inquiry[59] Lord Justice Clarke said:

    "Finally, it does seem to me that the time has come when it would be desirable to set up a statutory framework for Inquiries generally . . . There is at present no generally applicable statute which covers public inquiries."[60]

  Lord Justice Clarke went on to express the opinion that it would be desirable to remove the adversarial aspects of inquiries, and to give the inquiry chairman the power to conduct the inquiry as he or she thought fit, subject to an overriding obligation of fairness. The inquiry should have powers, so far as appropriate, to compel witnesses to give evidence and to obtain documents and would be subject to judicial review. He thought that such an approach ought to save time and money.[61]

NEED FOR RULES OF PROCEDURE, AND TO REVIEW THE "SALMON" PROCEDURE

  18.  Our discussions confirmed the need for greater assistance to be given to inquiry chairmen by formal rules of procedure. The Royal Commission on Tribunals of Inquiry[62] recommended that there should be no statutory rules of procedure because of the need both for flexibility and to avoid delay over alleged breaches. The then Government accepted this proposal.[63] The Royal Commission also made recommendations to minimise the "risk of injustice to individuals". These recommendations have formed the basis of the "Salmon" procedure which is now generally adopted and liberally interpreted. This inevitably introduces adversarial elements into a public inquiry which add significantly to delay and expense. Parties with the same, or similar, interests are often separately advised and represented, usually at public expense. The same issues are explored in lengthy cross-examination several times over and it becomes increasingly difficult for the chairman to confine the ambit of the inquiry to the core issues. It is, however, arguable that publication of a report containing criticism of an individual who has not been permitted to vindicate his position at a public hearing does not amount to a breach of the provisions of the ECHR.[64]

  We consider that the operation of the "Salmon" procedure should be reviewed.

  Consideration should be given to re-examining the nature of an interest justifying participation in an inquiry at public expense. A person seeking to take part in the hearing should be required to state clearly, and in writing, the basis of his interest.

  Consideration should be given to the greater use of written submissions generally.

  Consideration should also be given to the appointment of one counsel to represent all interested parties at the inquiry whose interests do not conflict.

CAUSES FOR DELAY: JUDICIAL REVIEW CHALLENGES

  19.  Another cause for delay in recent public inquiries has been the increasing tendency for decisions connected with the inquiry to be challenged by application for Judicial Review. Attempts have been made to review a Minister's discretion to decide the form of inquiry, and whether it should be held in public[65] although we think it unlikely that such proceedings would be successful in the future.[66] There are nevertheless other "interlocutory" applications which cause delay and which could be controlled by appropriate rules. Two alternative possibilities occurred to us:

       (i)   The powers of a Minister who orders an inquiry could include giving the inquiry chairman a range of judicial powers, in addition to those of compelling witnesses to attend and the disclosure of documents; or

      (ii)   Rules could provide that applications concerning a pending inquiry be made to the Administrative Court.

  In either case time limits could be laid down to ensure the smooth progress of the inquiry.

CAUSES FOR DELAY: OVER-INVESTIGATION

  20.  In some inquiries, even though the primary, direct or immediate causes of the disaster have been established relatively speedily, the inquiry report is delayed because of anxiety to investigate all the possible underlying, contributory or more remote causes of the disaster.

  We acknowledge the need to explore the possible root causes of a disaster, and to make recommendations for future prevention. We consider, however, that in some cases this could conveniently be done as a second stage to the inquiry.

INQUIRY RECOMMENDATIONS

  21.  Some very experienced investigators we consulted took the view that when victims, and the support groups they sometimes form, take part in the wider aspects of the inquiry, their views tend to be given too great an emphasis in the discussion of safety matters and the public interest. Others thought that the inquiry was not the best forum to decide safety recommendations, and that recommendations in the past had been made that were impracticable or beyond the resources available. To meet this difficulty, a chairman has, on occasion, divided the inquiry into two parts: the first part investigating the causes of the accident or occurrence, and the second part making recommendations.

  We consider this two-part approach could be more generally applied by inquiry chairmen.

LIMITING THE SCOPE OF THE FIRST STAGE OF AN INQUIRY

  22.  The "Salmon" procedure has tended to make it difficult for an inquiry chairman to curtail questioning once representation has been given. If the first stage of an inquiry were confined to the factual causes of the disaster, it ought to be possible for the inquiry to follow an inquisitorial approach more closely. We appreciate that a decision confined to the events and actions leading to the occurrence may give rise to an implication of fault, and that before any report containing criticism is made public a person criticised must, in fairness, have an opportunity of putting his side of the matter.

  We consider that preliminary findings of the basic factual causes of the disaster or occurrence should make it easier to confine representation, and to identify the scope of the next stage of the inquiry. This should lead to the report of the first stage of the inquiry being available more quickly.

BREAKING THE INQUIRY

  23.  After the first stage of the inquiry, a short interval could provide an opportunity to consider other matters. If, for example, the CPS had concluded that there was insufficient evidence to initiate criminal proceedings, and if the chairman had the appropriate powers, relatives or victims who were dissatisfied with the CPS decision could seek review of the decision at a public hearing.

  We consider that relatives and victims would more readily accept a decision not to prosecute after such a hearing.

FACTUAL FINDINGS TO HAVE PRESUMPTIVE EVIDENTIAL STATUS

  24.  Provided the contentions of interested parties have been presented and considered by the inquiry, the inquiry's findings as to the cause of the accident or occurrence ought to be presumed to be correct in subsequent civil proceedings. The findings should only be subject to review if compelling new evidence is produced. This should reduce repeated examination of the same facts and facilitate subsequent negotiations over civil responsibility to pay compensation.

  We think that consideration should be given to enacting such a provision.

RECOMMENDATIONS TO IMPROVE SAFETY

  25.  Once the factual causes of the accident have been established, obvious preventative measures will normally be apparent to those concerned in the industry or undertaking concerned. The inquiry will, however, still need to examine the background events to decide whether additional safety recommendations need to be made. The type of accident and the industry or undertaking involved will determine the scope of this stage of the inquiry. The chairman will normally conduct this stage with the assistance of assessors experienced in the industry or undertaking concerned.

  We consider it is desirable for the inquiry's recommendations to be confined to those which can be introduced without delay. The inquiry should make it clear if recommendations are for the longer term to avoid unjustified criticism of those who are expected to implement them.

PROBLEMS OF CRIMINAL PROSECUTION

  26.  The reform of the law of involuntary manslaughter and the problems of corporate responsibility for that offence have long been under discussion. After a disaster such as the Southall Rail Crash, relatives of the deceased and the injured expect that those responsible will be prosecuted, and if found guilty, punished. When a director or manager has been shown to be at fault but escapes prosecution or conviction because of the difficulty in proving a charge of manslaughter, the victims of the disaster feel particularly aggrieved. More generally, respect for the law is diminished. It is interesting to compare this position with the situation when a company or undertaking causes a serious accident by breach of Health and Safety regulations. If the offence is shown to be attributable to any neglect of duty by a director or manager, the director or manager, as well as the company, is guilty of the offence.[67]

INTRODUCING A NEW CRIMINAL OFFENCE

  27.  It is anomalous that if an equally serious accident occurs, for example, due to an offence by a railway undertaking, a director or manager who has neglected his duty is not similarly guilty of an offence. This state of affairs is seen as incongruous by relatives and victims (and others too): they are not concerned with the impersonal and somewhat detached nature of corporate liability, but with the just punishment of those actually responsible. The difficulty of proving recklessness or gross carelessness in these kind of cases is often the reason why no prosecution is brought. This difficulty could be overcome by introducing the more realistic offence of endangering the safety of passengers,[68] or the public, and by introducing a provision that where a company or an undertaking commits the offence, and it is shown to be attributable to any act or neglect of duty by a director or manager, that person too is guilty of the offence.

  We believe that further consideration should be given to introducing such a provision, or a similar measure, to bring the responsibility of directors and managers in public transport undertakings into line with the responsibility of directors and managers in companies occupying or managing factories.

INQUIRIES INTO MEDICAL CATASTROPHES

  28.  The Secretary of State for Health has a wide discretion to direct an inquiry to be held, 69 and to appoint persons to hold the inquiry. The person appointed has the power to issue a summons to any person to attend to give evidence on oath if required to do so, and to produce documents. If an untoward event occurs in a hospital or in connection with NHS treatment, there will be an initial investigation conducted by an[69] independent person appointed by the relevant Health Authority. At this investigation it is particularly important that those involved feel able to speak with the utmost candour and that what they say will remain confidential until it has been evaluated. The Authority pays particular attention to involving any patient or relatives concerned.[70]

MEDICAL INQUIRY HEARINGS IN PRIVATE

  29.  The principal purpose of inquiries of this kind is to "learn lessons" from the events to prevent recurrence. For this reason it is usual for these inquiries to be held in private, although with interested parties present. In some instances, for example, where more than one untoward occurrence has raised serious questions about the way medical care has been managed, the circumstances call for a public inquiry. If a criminal offence has been committed, the trial will usually have already taken place so the question of combining criminal or disciplinary proceedings with the inquiry process does not arise.[71]
































HEARINGS IN PUBLIC

  30.  When medical inquiry hearings are held in public, there may be a large amount of technical evidence with many patients possibly affected. It is clearly important to contain "Salmon" representation at these hearings. Any attempt to decide civil liability at the inquiry would, however, inevitably lead to greater adversarial content, to witnesses' reluctance to speak openly, and to considerable delay.

  The manner in which clinical negligence claims are handled is a significant factor affecting the incidence of representation and the adversarial content of a medical inquiry. We understand that the Chief Medical Officer is considering options for the reform of the way clinical negligence claims are handled and is expected to report his recommendations to Ministers shortly. We think that the outcome could have an important bearing on the procedures of medical inquiries.

COMBINING DISCIPLINARY HEARINGS

  31.  Disciplinary proceedings before the appropriate professional bodies often arise out of the same or related facts as those before the medical inquiry. We do not, however, think it practicable to combine disciplinary proceedings with the inquiry procedure. A body such as the Professional Conduct Committee of the General Medical Council is specially constituted to determine medical competence and ethics and has many years' experience in judging these matters. A medical practitioner who is aggrieved by the decision of the disciplinary body has the right of appeal. When an inquiry has made specific findings relevant to the question before the professional body, we are confident that it would proceed on the basis of the facts found, unless the case was most exceptional.

SERIOUS ADMINISTRATIVE FAILURE

  32.  Public inquiries into serious administrative failure are often directed under the Local Government Act 1972 or under the Children Act 1989. They are usually ordered to investigate the failure of supervision by a public sector agency to prevent some serious event or occurrence. The abuse of children has given rise to several inquiries of this kind in recent times.[72] These inquiries are often characterised by the lengthy historical period of the investigation, the large number of individuals who may be criticised and who accordingly take part[73], and by the time taken to conclude them.

  33.  It is in the nature of inquiries into administrative failure that criminal proceedings arising from the underlying facts will have already taken place, although the evidence at the inquiry may bring more offences to light. In these circumstances it is not practical to combine the criminal proceedings with the inquiry. The circumstances may, however, disclose regulatory offences which are triable summarily. It might be practicable to combine the hearing of such an offence with the inquiry, but to do so would have a serious impact on the candour of witnesses. It is already the practice in this type of inquiry to give an undertaking to witnesses that no disciplinary action will be taken as a result of the evidence given. We were left in no doubt about the value attached to this form of undertaking. Combining civil proceedings with the inquiry would be likely add to delay, as many parties might be involved.

  We think, however, that the findings of fact of a public inquiry into serious administrative failure should be given presumptive effect in subsequent civil proceedings.

FINANCIAL COLLAPSE

  34.  The financial sector is subject to strict regulation[74]. The investigation of the collapse of a financial organisation poses particular problems. The Secretary of State for Trade and Industry has wide powers to initiate an investigation into the affairs of a company by appointing inspectors[75] to make a report to him[76], and to publish a report of the findings of the investigation. If it appears in the course of the investigation that a criminal offence has been committed which has been referred to the prosecuting authority, the Secretary of State may direct that the investigation be discontinued. Sometimes as the result of criminal conduct by those in charge of the organisation, the collapse occurs before any investigation under the Companies Act is possible. In this case, an extensive criminal investigation will be the first step in unravelling complex dealings with the assets.

SPECIALIST INVESTIGATION

  35.  Because of the international nature of financial dealings today, any major financial fraud investigation has to be undertaken by specialist forensic accountants appointed by the Serious Fraud Office (SFO). The priorities of the investigators are to discover what has happened, to trace and, if possible, to recover the assets, and to bring those responsible to justice. An inquiry into circumstances outside the criminal prosecution is likely to concentrate on failure by the regulator or responsible Government Department to monitor the activities of the collapsed organisation. In addition to those who have lost their money in the financial collapse, those who may be criticised will seek to be represented. In our view, to widen the scope of an inquiry into financial collapse to include questions of civil liability would make it too unwieldy.

  We believe, however, that consideration should be given to introducing a provision that the facts found by an inquiry into financial collapse should be presumed to be true in subsequent civil proceedings, subject to compelling fresh evidence. This should relieve claimants of the burden of proving the complex manipulations used to defraud them, and should result in significant saving of time and cost.

ADMISSIBILITY OF INSPECTORS' REPORTS

  36.  We note that a certified copy of the inspector's report is admissible as evidence of the inspector's opinion relating to any matter in the report, and as evidence of facts in proceedings under the Company Directors Disqualification Act 1986[77].

  It has been held that the contents of an inspector's report are not admissible in ordinary litigation,[78] but we believe that the report of a public inquiry should be admissible in ordinary litigation to the same extent as an Inspectors report in proceedings under the Company Directors Disqualification Act.

  Further Proceedings after Financial Collapse

  37. After a financial collapse it is likely that there will be regulatory or disciplinary proceedings, or both. Lord Irvine drew attention to the waste of resources in such multiple proceedings in his KPMG lecture.[79] Lord Irvine's remarks came shortly after the Society for Advanced Legal Studies had set up a working group on Financial Regulations. In its report[80] the Society made 12 recommendations.[81] Although it did not accept the possibility of incorporating criminal proceedings into the inquiry process, the Institute proposed a unified investigation, and recommended that the SFO should be able to produce reports of investigations for publication. It also endorsed Lord Irvine's view that there was a strong case to be made that after conviction of an offender, a single body should be responsible for deciding all the penalties, including regulatory and disciplinary sanctions. It made the point that this should encourage plea-bargaining and so reduce cost and delay.

  We believe that there is scope in these proposals for considerable saving in time and resources.

FURTHER RESEARCH

  38.  In the course of our discussions with the SFO, we were told that some criminal courts in the Netherlands were able to exercise at least some regulatory and disciplinary powers.

  We have not at this stage followed up this information, but if this aspect of our project is pursued, we believe it could be a helpful line of enquiry.

  39.  One of the officials we consulted believed that in France and Spain an administrative process was available that included the power to appoint a commission of inquiry into an accident or disaster with wide powers to decide liability, regulatory penalties and damages.

  We have not researched this process but if the belief is correct, a comparison with continental systems could be of considerable help in suggesting an additional route for avoiding repetitive and expensive proceedings.

Sir Roy Beldam

Judith Bernstein

November 2002












40   For example, under section 250 of the Local Government Act 1972, section 84 of the National Health Service Act 1977 or section 14 of the Health and Safety at Work etc Act 1974. Back

41   Article 6, European Convention on Human Rights (ECHR). Back

42   Proceedings which follow disasters: the relationship between inquiries and criminal proceedings (5 April 2002). Back

43   See Report of the Royal Commission on Tribunals of Inquiry under the Chairmanship of Lord Justice Salmon ("the Salmon Report") (1966) (Cmnd 3121). Back

44   See for example The Cairns Committee Report (1961) (CAP 169). Back

45   Usually referred to as "the Salmon procedure". Back

46   Because of the serious nature of the circumstances giving rise to public concern, or where the inquiry is intended to satisfy the requirements of Article 2 of the ECHR. See Edwards and another v United Kingdom. (1 April 2002). Back

47   We are aware of proposals to reform the law of corporate manslaughter: Home Office Consultation Paper (May 2000). Back

48   Statements taken during investigations by Air and Marine Accident Investigation Branches are even more strictly controlled. Back

49   Preliminary Statement to the Red Lion Square Inquiry held under section 32 of the Police Act 1964. Back

50   Proceedings which follow disasters: the relationship between inquiries and criminal proceedings. Back

51   Review of the Criminal Courts of England and Wales (October 2001), Chapter 11, paragraphs 76 to 128, and recommendations 244 to 262, in particular recommendation 255. Back

52   Review of the Criminal Courts, chapter 5, paragraphs 173 to 206 and recommendations 37 to 39. Back

53   See New Law Journal 17 May 2002 "Why an Accident and Disaster Bureau is needed." Back

54   See eg letter of 19 July 2002 to Foreign and Commonwealth Office from UK Families Flight 103. Back

55   Department for Transport Consultation paper: Establishing a Rail Accident Investigation branch (July 2002). Back

56   Section 14. Back

57   Under the Health and Safety Act 1974 the Secretary of State is authorised by regulation to give such power. Back

58   It concerned the Hatfield rail crash. Back

59   Cmnd 4558 (2000). Back

60   Ibid. 11.59. Back

61   Thames Safety Report paragraph 11.60. Back

62   Under the Chairmanship of Lord Justice Salmon (1966), Cmnd 3121. Back

63   White Paper 1973, Cmnd 5313. Back

64   Fayed v UK (Application 17101/90) (1994) 18 EHRR 393, EctHR. Back

65   See R v Secretary of State for Health ex p Wagstaffe and another [2000] 1 WLR 292. Back

66   In the light of the Court of Appeal decision in Persey & others v Secretary of State for the Environment, Food and Rural Affairs. (15 March 2002). Back

67   See section 37(1) Health and Safety at Work etc Act 1974. Back

68   Cf. section 34 Offences Against the Person Act 1861. Back

69   Under section 84 National Health Service Act 1977. Back

70   We were told of a similar approach by the Lord Advocate's Department in fatal accident inquiries in Scotland. Back

71   Eg The Shipman Inquiry; Inquiry into children's heart surgery at the Bristol Royal Infirmary. Back

72   Eg Inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974 under chairmanship of Sir Ronald Waterhouse; The Victoria Climbie« Inquiry (2002). Back

73   230 interested parties were identified in the Waterhouse Inquiry, although some were grouped together. In the Shipman Inquiry 15 groups of interested parties have been identified. Back

74   Eg Under the Financial Services and Markets Act 2000, and under the Companies Act 1985. Back

75   See Part XIV of the Companies Act 1985. Back

76   Ibid section 437. Back

77   See section 441 of the Companies Act 1985. Back

78   Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV [1984] 1 WLR 271, not followed in interlocutory proceedings in AG v Wallbrook Insurance Co Ltd [1995] 1 WLR 1017. Back

79   The feasibility of a unified approach to proceedings arising out of major city frauds delivered on 24 June 1998. Back

80   Report on Parallel Proceedings published in December 1999. Back

81   See paragraphs 8.1 to 8.12. Back


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2004
Prepared 14 July 2004