Examination of Witnesses (Questions 420
- 439)
MONDAY 14 NOVEMBER 2005
MR DES
PRICHARD, MR
ANDREW HOPKIN,
DEPUTY CHIEF
CONSTABLE JON
STODDART AND
DETECTIVE CHIEF
SUPERINTENDENT MARK
SMITH
Q420 Gwyn Prosser: Mr Stoddart, you
both use this phase "risk aversion" and we have a lot
of definitions from other witnesses, that is why I was comparing
it with yours. Recently there have been a number of reports of
the police receiving a report of the discharge of a firearm in
a house perhaps—I will not go into details—arriving
at the scene and then holding off, sometimes for a matter of hours,
and consequently, tragically, there is loss of life, people bleed
to death, et cetera. Is that a very stark example of risk aversion
taking place now?
Mr Stoddart: That is exactly the
kind of issue and it is one of the cases that I have in my mind's
eye that we are clearly thinking about. I understand exactly where
you are coming from, Chairman, but it should not be about trying
to pinpoint and apportion blame to the most vulnerable, least
well paid and the person carrying the can for someone like me.
The fact of the matter is, my colleague here has already identified,
the chain of command is very clear. If I determine strategy and
policy in firearms operations, which I do on a weekly basis, then
I am equally liable to the scrutiny of the IPCC within the existing
legislation. If it is the same level of burden of proof, gross
negligence, as we are talking about within corporate manslaughter,
if that can be shown, and I am sure there are circumstances in
the future where that can be shown, then that is the appropriate
line to go down, to prosecute those people who have taken individual
decisions that have impacted upon an operational delivery. It
might be that the policy was quite wrong, the decision taken by
me was quite wrong, and the execution of it was correct but ultimately
unlawful or potentially unlawful, and I believe that the existing
legislation caters for that well. I just think that risk aversion
is something we are concerned about. We see many heroic acts by
police officers, fire brigade, ambulance and other emergency services,
heroic acts by members of the public. I am very concerned we will
have a delineated jobsworth culture not just from the bosses but
that will creep in right the way through because we will be saying,
"We will not get any back up". We need this operational
freedom and clarity and we are seeking some clarity on this from
the Committee and the draftsmen.
Q421 Harry Cohen: Let me just move
on from there, although I am sure we will probably come back to
aspects of that in due course. I want to clear up, firstly, a
point about the duty of care definition because one of the component
parts in the definition includes the supply by the organisation
of goods and services whether for consideration or not. We had
another witness earlier who raised this question of the supply,
basically, and said Home Office people had told him that that
was speak really to exclude a whole range of services including,
for example, general policing activities. I know it is a definitional
point, but is there a real difference between provision and supply
here or not, in your opinion?
Mr Hopkin: From the firefighters'
point of view, I would say that the more important term by our
ground rules is the "exclusively public function", and
I know that is not the direct question you are asking. As far
as the supply of services is concerned, it may be that that does
include the provision of fire services which naturally flows on
to attendance at all fire incidents. We have focused primarily
on that including the fire service but the "exclusively public
function" potentially excluding the fire service would be
our position.
Q422 Harry Cohen: If we sought to
mock this up by having both provision and supply, would that create
a problem for you?
Mr Hopkin: Not from our perspective.
Mr Smith: Or from us.
Q423 Harry Cohen: Thank God. That
got rid of that one!
Mr Stoddart: Basically this Parliament
is willing it to go and then it is pretty much immaterial.
Q424 Harry Cohen: That is fair enough.
To ACPO then: you put in your evidence that you think it requires
absolute clarity that police will not be held accountable under
the proposed legislation for deaths relating to police operational
conduct, but human rights law recognises that criminal accountability
is particularly important where a state body is responsible for
a death. How do you respond to the assertion that this legislation
should apply to deaths in custody as the current mechanisms of
accountability for deaths in custody are not proving sufficient
in practice to prevent such deaths?
Mr Stoddart: I might sound a bit
repetitious here, but I think the existing framework serves us
well and defines what can and cannot be done. Duty of care to
the police, if there is a special relationship, we understand
that we have a duty of care for people like informants, special
witnesses, always for people coming into our custody, police detention
and the police environment. As well as our responsibility there,
we have civil liability and I believe that the Independent Police
Complaints Commission provides that level of scrutiny, independence
and confidence in the service that this legislation hopefully—we
believe hopefully—does not need to take into account.
Q425 Harry Cohen: I know from my
history and taking up issues of deaths in custody, and other Members
have as well, that there are a lot of concerns about procedures,
including the existing ones that operate, and certainly families
of the victims do feel aggrieved. You say the existing framework
is satisfactory and you have got the police complaints authority
or whatever but, say, the matter came before a coroner, which
is under the existing framework, and the coroner said, "Well,
there is some serious neglect here"; somebody mentally ill
was thrown into a cell with no care or whatever, all sorts of
reasons, and the coroner looking at it said, "I think there
would be, if the law applied, a corporate manslaughter aspect
to it" because of the way he was held. Why should the police
have a blanket immunity to that? Why should that happen?
Mr Stoddart: First of all, can
I say to try and reassure you, we are not complacent about deaths
in police custody. We are absolutely committed as a service to
try to reduce the opportunity for these to occur. I know there
is ACPO-led work ongoing, as we speak, looking at all issues of
people coming into contact with the police in custody in particular
and to try and learn the lessons and make sure we reduce the opportunity
and those instances where people do die. We are dealing with vulnerable
people; people who come into our custody are vulnerable whether
through mental illness, drink or drugs, and again I believe that
the circumstances you are talking about there in terms of the
coroner would fit very well with gross negligence manslaughter.
That may be an individual act or an individual decision or poor
practice that leads to a chain of events leading to someone's
untimely death.
Q426 Harry Cohen: Surely, in those
circumstances, duty of care leading on to possible corporate manslaughter
would be greater not less?
Mr Smith: From my understanding,
the duty of care exists, but it is an area where we would see,
on the reading of the draft Bill, that the exclusive public function
exemption comes in because we are operating within the bounds
of the Police and Criminal Evidence Act and other legal provisions.
That was our understanding; no lessening of the duty of care,
in fact it is an area where it is obviously present.
Q427 Harry Cohen: Let me move on
a little bit then because a lot of the functions of people in
custody in prisons are now being taken on board by private organisations.
Should the law be different for where people are in private custody
or not? Should they be free from corporate manslaughter?
Mr Stoddart: In short, no. They
should be treated in the same way as we are. They carry out the
same function and I believe that it would be unjust if they were
treated in a different way simply because they are a commercial
organisation.
Mr Smith: If I could add, my understanding
from the draft Bill is that private enterprises that are delivering
those sort services, which would come within the exclusive public
functions, would also be covered by that exemption and liability.
Q428 Harry Cohen: I hear what you
are saying, but, on the one hand, you are saying in previous answers
the police have higher standards quite rightly, and that gives
them special exemptions and special standards in the arrangements.
These private companies often will not have the same sort of standards
as the police. Why should they get the same benefit of the exemption?
Mr Smith: Going back to some of
the notes and the intention specified in the Bill, in the explanatory
notes in the foreword, was that liability hinged on things that
we did that the private sector did not; and where they did things
of a similar nature, they should be covered by the same provisions
in terms of the exclusive public function. I think there is an
obvious need to ensure there is proper scrutiny of what they are
doing and the management systems that are there, but it would
be difficult to have two different sets of standards for doing
the same job essentially.
Q429 Chairman: Do you think for one
moment it would be publicly acceptable if a member of the public
died in a custody suite run by a private company, then to find
out there was no prosecution under this legislation because of
that general protection? Surely this legislation would not survive
10 minutes of public scrutiny at the hands of the media or anybody
else? It is a big trend now to have privately-run custody suites
on contract to the police service. Surely the whole Bill would
be subject to a huge amount of criticism if these companies are
excluded, but if you do not exclude the companies, you cannot
exclude the police themselves from that responsibility, can you?
Mr Smith: I think the existing
provisions of gross negligence manslaughter are still there to
be used. The Health and Safety at Work Act is still there to be
used and raises a wider debate about the appropriateness of contracting
out those types of services if we are not going to treat people
the same way.
Q430 Chairman: Can I put it to you
that death rates in custody have fallen significantly over the
last few years because senior management started to take the issue
seriously under public pressure that had not been taking seriously.
That does suggest that deaths in custody respond directly to the
quality of senior leadership and senior management. This Bill
in the private sector is designed to tackle failings in senior
management and not taking risks seriously. I am still struggling
to understand why in an area like this where the number of deaths
might be directly related to the attention given to it by senior
management, the police should be subject to different standards
from anybody else.
Mr Stoddart: Chairman, I think
it has been said, I think we fundamentally disagree about it,
that the legislation I believe is there. There is malfeasance
in public office, voluntary and involuntary manslaughter, and
if it can be shown that the neglect was gross then the same burden
of proof would be required. I would ask whether or not it is in
the public interest necessarily to look for people at the top
or senior management within this. I think that is where I stop.
Chairman: We will otherwise go round
in circles. I will not ask it any more and you do not have to
answer it any more!
Q431 Harry Cohen: Let me move on
now to APFO. In your evidence you argued the need for a separate
factor, basically on the point about these time critical situations
which you referred to earlier. Is that concern not already addressed
by the fact that a gross breach involves "conduct falling
far below what could reasonably be expected in the circumstances".
Clearly in the circumstances they tend to ignore those?
Mr Prichard: As a chief officer,
I have looked at that and I am not entirely clear from a legal
perspective what that sentence means. I will pass over to my legal
adviser here because I think that opens up a lot of questions
and need for legal clarification in my position as a Chief Fire
Officer.
Mr Hopkin: The difficulty with
that definition is that unlike the definition in the Adomako case,
where of course gross negligence has been looked at by the courts
quite clearly, there is case law and there is reference to the
criminal nature of the Act so a jury can understand. It seems
to just open it up again to a much more general approach for the
jury. Our concern is that test is not clear enough and really
the Adomako test would be better applied within the Act itself.
Q432 Harry Cohen: Can you spell out
that test?
Mr Hopkin: The Adomako case is
in effect whether the jury take the view that the evidence they
have heard amounts to something criminal. I can give you a reference
to the case, if you wish.
Q433 Chairman: Can you write to us.
Mr Hopkin: Certainly.
Q434 Mr Dunne: To ACPO: you raised
in your evidence the question of territoriality of jurisdiction
and you have a particular ability to answer this question which
others have not. To use your example, if there was an incident
involving a company which was overseas incorporated, how would
you go about investigating the claim arising against the board
overseas?
Mr Smith: We feel that currently
we would encounter significant difficulty. At the moment, if we
need to gather evidence abroad we go through a process asking
for a letter of request through the CPS and the relevant international
channels to allow inquiries to be undertaken. The response really
depends on the jurisdiction of whom you ask the question. Some
jurisdictions require you to have instituted proceedings which
puts the cart before the horse here because often it is that we
would need initial information about the structure of the organisation
abroad, the roles and responsibilities of the people in authority
before you could ever institute proceedings. Some applications
to some countries may be more successful because they allow a
more informal process, they allow contact between police forces
to get certain things done, but I would suggest that if we had
a company with all of their senior managers, as maybe defined
under the Act, working and posted abroad, then our ability to
go over to such a country and gather the documentation and interview
the individuals, which we would require to do to be able to further
the investigation, is an area where we would have some significant
difficulties. In some jurisdictions you may have to go before
a magistrate who would direct what investigations you can perform.
It may be that in some jurisdictions we would have to ask the
local law enforcement agencies to do those inquiries on our behalf.
Q435 Mr Dunne: It varies from country
to country?
Mr Smith: It does.
Q436 Mr Dunne: Are there any parallels
in other parts of the law where you encounter these difficulties?
Mr Smith: Yes, there is the fraud
area where we have to go through similar processes. Often you
do not have to do the in-depth type of investigation to prove
culpability of people abroad. You are looking for information
that would support an investigation in this country. One of the
things we were thinking about, a means for perhaps trying to deal
with this issue, would be some sort of protocol or agreement.
We know there is a European Safety Directive which, although it
never seeks to apportion blame, I believe, it is to do with blame-free
safety related investigations into disasters and accidents, it
does form a platform and a standard with which each country that
is a signatory to it complies. We thought perhaps some sort of
protocol along those lines might allow us to progress our inquiries
and ultimately they are safety related in many cases anyway. Those
were our concerns.
Q437 Mr Dunne: Similarly, if an incident
happens overseas for a UK incorporated entity the same issue arises
presumably?
Mr Smith: Yes. There is jurisdiction
in certain circumstances abroad for UK police. There is jurisdiction
on the death of a British citizen abroad and the draft Bill, as
I understand it, provides jurisdiction on British vessels, British
controlled aircraft outside our territorial area. In most circumstances
we are probably better able to conduct inquiries if the death
is somebody outside of the UK but the people or the company are
incorporated here. It is probably not as difficult, but the process
is generally the same in terms of gathering evidence about the
death itself. I do not think we would have any jurisdiction on
the death of a foreign national abroad caused by management failures
of a corporation in this country as it stands.
Q438 Natascha Engel: The Home Office
has accepted it is important for the Health and Safety Executive
expertise to be harnessed in the role of investigating prosecution.
What do you think about that? Do you think the Health and Safety
Executive should be given the powers to investigate and prosecute
corporate manslaughter offences?
Mr Smith: Obviously we recognise
the need to work closely with the Health and Safety Executive.
I have done so closely on many occasions. We have a work-related
deaths protocol to ease that process. What we do have a difficulty
with is the concept of homicide offence being taken outside of
the police arena. The work-related deaths protocol makes a distinction
between criminal conduct which is contrary to the Health and Safety
at Work Act and serious criminal offences which relate to the
current homicide law. I think if we were to take the investigation
of this offence away from the police then I think that might be
seen as perhaps watering down the seriousness of the offence and
aligning it with health and safety breaches which, albeit serious
offences in their own right, are not seen with the same stigma
necessarily as homicide prosecutions.
Q439 Natascha Engel: Just to take
that a bit further, how do you work with the Health and Safety
Executive at the moment? If this draft Bill was introduced, how
do you think the arrangements that you currently have would differ?
Mr Smith: There is a particular
issue that we have in mind relating to the powers that the Health
and Safety Executive use. At the moment if we have a death in
the workplace the protocol sets out the response by the police,
the response by the HSE or other local government authority. Basically,
where there is evidence to support a homicide or gross negligence
manslaughter type case then the police will lead, the HSE will
support, often providing expert evidence, but sometimes there
can be a conflict between the powers used by the HSE and those
that would be used in a criminal trial, the powers of compulsion
of witnesses in particular. We have to be very careful in what
we do in a joint endeavour in how we seek these things, but that
is not necessarily a bad thing and it may be at some stage, once
police inquiries are exhausted, the HSE may use their powers of
compulsion. It has tended to lead to a serial process where the
police go and search for evidence of gross negligence manslaughter,
and if they cannot find it, and the CPS advises it is not there,
then the case goes to the Health and Safety Executive. What can
happen then is the HSE will complete their investigation and,
unlike with a homicide case that the police may be pursuing, the
coroner would generally hold his inquest before the HSE prosecution
takes place. If the coroner's verdict comes back as unlawful killing
then you can see the case go back to the police and the CPS. In
the past this has led to delays of many years which have been
the subject of adverse comment by bereaved families. There is
an opportunity here to improve that process with this new offence.
One thing that I feel particularly strongly about is this, whoever
investigates these offences, and we say that should be the police,
those agencies currently charged with investigating corporations
have got limited powers of compulsion, the powers to demand production
of information which will show you what structures look like,
who has responsibility for what, minutes of meetings and things
like that. Also if you think there is going to be no opportunity
to detain or question an individual for this offence, we cannot
caution them because they are not liable to an offence so somebody
who is a witness only against their own corporation may be less
than willing to help a police led inquiry. For that reason, the
Serious Fraud Office and the Health and Safety Executive have
powers to compel people to give evidence to them such as section
20 of the HSWA. The caveat with that is that evidence is not admissible
against the individual who made it, however it can be used against
the corporation. We say without those powers then the opportunity
to exploit the benefits that this legislation brings in being
able to expedite inquiries quickly will be lost because the police
ability to get to the heart of these matters can be hampered by
current provisions under the Special Procedure Material under
PACE where we have to ask for the documents and material first,
in general terms, and if they then refuse we have to go before
a judge. Organisations can often say they will provide you with
the material and then it is drip-fed over two years.
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