Examination of Witnesses (Questions 440
- 447)
MONDAY 14 NOVEMBER 2005
MR DES
PRICHARD, MR
ANDREW HOPKIN,
DEPUTY CHIEF
CONSTABLE JON
STODDART AND
DETECTIVE CHIEF
SUPERINTENDENT MARK
SMITH
Q440 Natascha Engel: I will come
to a conflict of interest between organisations in a second. Quite
specifically, you have asked that access to material relevant
to an investigation of the corporate manslaughter offence should
be granted by a warrant from a justice of the peace rather than
a judge as required by PACE. What evidence do you have to support
your claim that the current arrangements requiring a hearing before
a judge jeopardises the investigation process?
Mr Smith: It is not our contention
that it should go before a Justice of the Peace. Our contention
is that there should be powers of production that could be granted
by a senior police officer or, if it was deemed necessary, by
perhaps a prosecutor. The difficulty with the current arrangements
is that most of the material that is relevant to this type of
investigation falls within the definition of special procedure
material. That is held to be material of a confidential nature
kept in the course of business. Most organisations will contend
that most of their business records come under that definition.
Some will come under legal privilege. Section 9 of PACE provides
for police to make an application before a judge for production
of special procedure material. That process can be quite long
winded. In the first instance, you have to be able to be very
specific about the material that you require. You have to make
sure that you have given them the opportunity to provide it which,
in the past, has led in my experience to organisations saying
they will give voluntary disclosure but then using their own internal
processes, especially when it is electronic data held on electronic
medium, providing it over a very extended period of time. Then
you have to go through a period of analysis as well. We say that
a much better option would be, especially to expedite the inquiry,
for an order very similar to the section 20 powers the HSE enjoys
to ask for production of relevant material of the company.
Mr Hopkin: We align ourselves
with the view that the police should investigate. One of the points
about the Bill is that it will be arguably more difficult to prove
in health and safety offences. That concept involves new concepts—for
example, causation, the relevant duty of care and gross breach.—concepts
which the police will be more familiar with but which will be
new for the Health and Safety Executive. Whilst I think it is
an important role for the HSE to supplement the investigation,
the legal mechanics of the Bill will require the police and the
CPS to be properly enforcing it. In addition, I agree with the
point made in regard to the section 20 powers. Those are significant
powers of considerable assistance to the HSE in the investigations
they do.
Q441 Mrs Engel: If the defendant
in a corporate manslaughter case is a police authority, a law
enforcement agency or a prosecuting authority, will there not
be a conflict of interest if the police and the CPS are investigating
and prosecuting the offence?
Mr Stoddart: In terms of prosecution,
the Police Complaints Commission have the power to conduct an
independent investigation if it is a complaint or there is an
issue like this. There would not be a conflict of interest. They
would almost invariably commission an independent police force
to assist them in terms of the investigation, in that way ensuring
probity and integrity.
Q442 Mrs Engel: What do you think
of the proposal that all prosecutions would require the prior
consent of the Director of Public Prosecution?
Mr Stoddart: From our perspective,
we welcome that. We think this is an extremely important area
of business. It is going to be potentially extremely complex and
quite a difficult piece of legislation, as past experience has
shown with some of the previous legislation, to take through the
judicial process. We think, as well as the officer's expertise,
we would want corporate matters in, we want to make sure that
we have a consistent prosecution policy and we want to ensure
that we develop this practice and standards to the highest possible
standard.
Mr Hopkin: It would likewise be
our view that it is appropriately brought via that way, rather
than by a private prosecution. In particular, it is appropriate
to consider that families are constantly kept informed in relation
to these sorts of investigations and likewise there is a number
of examples of judicial reviews brought by families to decisions
taken by the CPS not to prosecute that result subsequently in
proceedings, so there is scrutiny in that sense by families and
those with a quite proper, legitimate interest in the outcome
of the investigation.
Q443 Mr Clappison: Could I come back
to APFO on the question of the potential risk aversion effects
of the legislation? You have already given us certain examples,
particularly the Manchester example. Does it remain your view
that, although you are currently subject to the health and safety
regulations and those regulations are specifically taken into
account on the face of the legislation in the question of deciding
whether there is a gross breach or not, additionally this would
carry with it some additional element of risk aversion which would
affect your operations?
Mr Prichard: Potentially we see
this legislation as sitting behind the shoulder of an officer
taking critical command decisions on the ground. The current health
and safety legislation is robust enough to ensure that the fire
and rescue service manages its operations properly and looks after
its employees. It is a public service; it is not beholden to shareholders.
We see a distinction between a corporate enterprise that is beholden
and has a primary responsibility to shareholders and a public
service that is there for one purpose only and that is to serve
the public. In the dynamic environment in which the fire and rescue
service works, officers take split second decisions at times.
They are not equipped for every scenario they go to because I
cannot tell you today in intimate details what actions the fire
and rescue service is doing. It could be a flood, a fire, a building
collapse, a person trapped on a cliff. It is a whole variety of
scenarios and the reality is that the fire and rescue services
do not have every piece of kit and equipment available to them
immediately to take an effective response in terms of the proposed
legislation. Fire fighters are walking into the burning building
as everyone else is leaving. It is a different environment. We
are not saying that the Health and Safety legislation should not
apply to us to ensure that as organisations we manage our businesses
and services effectively, but we are not convinced with the way
this legislation is currently crafted and the concept of corporate
manslaughter. We see it as sitting behind the incident commander
as a potentially risk-adverse measure and it may impact upon their
decision making process to the detriment of the public.
Mr Hopkin: In terms of legalities,
the way the offence is currently drafted will inevitably involve
significant criticism of senior managers because it is those individuals
who will be in the witness box and it is their failures that are
being addressed by reference to establishing the apparent corporate
failure. It focuses very much on and names senior managers.
Mr Prichard: It is not our on
the ground commanders necessarily that are taking instant decisions
that will face prosecution. It is the senior officers. Senior
officers accept their responsibility absolutely.
Q444 Mr Clappison: You think it will
have a risk averse effect?
Mr Prichard: It may cause me as
a chief officer to say to my crews, "When you arrive at that
incident, unless you have every piece of kit by your side, do
not take any action. Do not go into the water unless the boat
is there. Do not go into that burning building unless you know
you have all the pumping appliances lined up alongside you."
It will cause me as a chief officer to give instructions to my
staff that may be risk averse and I do not want to do that.
Q445 Mr Clappison: On the question
of individual liability, specifically to ACPO, you have said that
you feel the Bill should have given consideration to some form
of sanctions against individuals established as having been significant
contributors to the gross breach. We have heard other evidence
from industry and others who say this is not needed because such
individuals could be liable for the offence under the Health and
Safety at Work Act. How do you respond to that?
Mr Stoddart: There is a need not
to prosecute the body corporate but to sanction behaviour that
is grossly negligent and to ensure that there is some form of
secondary penalty in the form of a disqualification from directorship
or the like. It is about public confidence and showing that the
legislation has some teeth.
Q446 Mr Clappison: There are sanctions.
Are you happy with those?
Mr Stoddart: Yes, we are but we
do think this secondary sanction is also appropriate.
Q447 Gwyn Prosser: ACPO have argued
that the Bill should allow compensation to be paid to the bereaved
who have recourse to the civil courts. We have had other evidence
from an eminent QC who took the view that that would blur the
distinction between the two courts and the two proceedings. He
believed that damages should be sought through a civil court.
Do you want to argue your case for that?
Mr Smith: I understand the issue
about the capability to proceed through the civil courts. It is
often this issue about delay. The way things currently work, in
my experience, companies are unlikely to accept financial liability
whilst there may be a criminal case, for obvious reasons. Therefore,
you will have civil proceedings that await the outcome of any
criminal proceedings. That can sometimes be quite a lengthy period.
I understand there is a three year limit on institution of civil
proceedings but I would have to be corrected on that. Yes, for
personal injury, it is three years. Many of these cases historically
have fallen well outside that three year limit. We do not say
that it should be the only option, that it is a court ordering
compensation with no recourse to civil proceedings, but we have
raised it as an option. It is all about what is expeditious, I
suppose, and what is the best thing to do for the bereaved. I
will put up a counter argument against that which says that, in
many of these cases, the civil damages could far outweigh the
fine that might be imposed. Therefore, there could be an issue
about a reluctance to plead guilty to these types of offences
in case they get hammered for a compensation order that is way
above the fine. I suppose it is putting forward the feeling of
families that I have dealt with in disaster cases.
Chairman: The division bell is going.
There were some other questions but we will leave those. Thank
you very much.
(The Committee suspended from 5.40pm to 5.56pm
for a division in the House)
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