Select Committee on Home Affairs and Work and Pensions First Report


14  INVESTIGATION AND PROSECUTION

Who should investigate and prosecute the offence?

321. The Government's 2000 consultation paper invited views on whether health and safety enforcing authorities in England and Wales should be given powers to investigate and prosecute the new offence, in addition to the police and Crown Prosecution Service. This suggestion has been dropped from the draft Bill on the basis that police involvement signalled "the position of the new offence as a serious offence under the general criminal law, rather than an offence that might be characterised as regulatory."[440] Many welcomed this decision.[441]

322. Some witnesses, however, believed that the Health and Safety Executive (HSE) and other enforcement agencies should be able to investigate and prosecute the offence. For example, the Law Reform Committee of the General Council of the Bar believed that there was no reason why this could not be done "in an appropriate case".[442]

323. We note, however, that the Association of Chief Police Officers had reservations about the HSE taking on an investigative role in a manslaughter case:

    "I think if we were to take the investigation of this offence away from the police then…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."[443]

324. The Deputy Chief Executive of the HSE was also reluctant for the body to become involved in prosecuting the offence:

    "We would not want to be in the case of prosecuting manslaughter cases which are by their very nature much, much more complex and require a degree of specialism that we do not necessarily have."[444]

325. Moreover he suggested to us that the current arrangements between the investigatory bodies were working well:

    "At the moment if it is an issue of manslaughter, both under the existing law or individual manslaughter, we have the work related deaths protocol. The position is that the police would do the initial investigation and if they believed it was a manslaughter case they would continue the investigation, clearly working closely with us. If at some stage they decided it was not a manslaughter case then it would be transferred to us to deal with under Health and Safety at Work legislation and we would then take the prosecution."

326. A number of organisations did, however, believe that the police would require further training to investigate and prosecute the offence effectively.[445] Eversheds LLP argued:

    "in our experience, there are still Police Forces whose experience of such investigations is extremely limited, and whose approach to investigations is not consistent."[446]

327. We agree that the investigation and prosecution of corporate manslaughter should remain the responsibility of the police and Crown Prosecution Service. However, the Home Office should consider whether the police might need further training in investigating and prosecuting the offence.

Investigatory powers

328. The new offence of corporate manslaughter will be listed as a serious arrestable offence under the Police and Criminal Evidence Act 1984 (PACE) and therefore police powers of investigation will be subject to that Act. Schedule 1 of PACE permits a circuit judge, on the application of a constable to authorise the police to enter premises and seize material where there is high level of urgency and where delay would have a deleterious impact on the investigation. The Association of Chief Police Officers (ACPO) submitted evidence to the inquiry that the current arrangements under PACE were insufficient for corporate manslaughter investigations:

329. Under section 20 of the Health and Safety at Work etc. Act 1974, health and safety inspectors are provided with a number of powers for the purpose of carrying into effect enforcement responsibilities. These powers include powers of entry to premises, examination and investigation. Unlike the search and entry powers available for the police under PACE, Health and Safety Executive inspectors do not need to apply to a court for a warrant of authorisation. ACPO suggested that delays could be minimised by allowing a senior police to authorise warrants for entry and search rather than a circuit judge.

330. ACPO also requested additional powers to compel individuals to give evidence. They pointed out that individuals could not be cautioned as they were not liable to the offence and argued that witnesses against their own organisation were likely to be unwilling to help the police. They stressed that the Serious Fraud Office and the Health and Safety Executive have powers to compel people to give evidence.[448] In addition they asked for powers to bring non-police expert support with them when necessary when entering business premises.

331. The Health and Safety Executive have expressed "some sympathy" with ACPO"s views "since it could avoid confusion and delay in some cases".[449]

332. However, JUSTICE was concerned about granting the police equivalent powers when investigating a serious criminal offence. It submitted:

    "The search of premises and seizure of documents can engage rights under both Article 6 (fair trial) and Article 8 (privacy) of the European Convention….[I]n these circumstances the need to apply an independent judicial authority in order to obtain a warrant is a necessary safeguard against the arbitrary use of powers of search and seizure. We therefore believe that the requirement for an application to a judicial authority should be maintained…".[450]

It suggested that there were other alternatives to extending powers to hasten the process, such as, for example, allowing a telephone hearing.[451]

333. The Centre for Corporate Accountability expressed support in principle for these new powers but questioned how they might work alongside different rules for evidence gathering in pursuit of an individual for gross negligence manslaughter.[452]

334. We have yet to be convinced that the police require additional powers to investigate corporate manslaughter effectively. The requirement in the Police and Criminal Evidence Act 1984 to obtain judicial authority for entering and searching premises is an important safeguard. However, there does appear to be an inconsistency in the powers of the police and those of the Health and Safety Executive. We therefore urge the Government to consider this issue further.

Consent to prosecute

335. Clause 1(5) of the draft Bill requires the consent of the Director of Public Prosecutions (DPP) before a private prosecution for a corporate manslaughter offence may be launched. This is a change of policy from the Government's 2000 consultation paper when there was no such requirement to obtain consent. In its introduction to the draft Bill the Government explains why this is no longer proposed:

336. Some witnesses welcomed this decision.[454] For example, the British Retail Consortium argued:

    "We also welcome the intention that cases only be bought under the Crown Prosecution Service with the consent of the Director of Public Prosecutions as this should ensure that inappropriate cases are not brought under the legislation".[455]

337. A substantial number of witnesses however, strongly opposed this change in the proposals.[456] The Simon Jones Memorial Campaign disagreed that removing the requirement to obtain the consent of the DPP would lead to spurious and unfounded prosecutions:

    "Once more is it the interests of the potential offender that are put to the fore - not those of the victims and the bereaved families….The financial hurdles alone are so great that only in exceptional cases could a private prosecution be considered. There is therefore virtually no chance of an insufficiently well-founded private prosecution. For this reason alone it is unreasonable to add the additional obstacle of requiring the consent of the Director of Public Prosecutions".[457]

338. The Centre for Corporate Accountability quoted the Law Commission's original argument for not requiring the DPP's consent:

    "[T]he right of a private individual to bring criminal proceedings, subject to the usual controls, is in our view an important one which should not be lightly set aside. Indeed in a sense it is precisely the kind of case with which we are here concerned, where the public pressure for a prosecution is likely to be at its greatest, that that right is most important: it is in the most serious cases such as homicide, that a decision not to prosecute is most likely to be challenged. It would in our view be perverse to remove the right to bring a private prosecution in the very case where it is most likely to be invoked".[458]

339. It further added that "In any case, if a private prosecution is so manifestly unfounded, the case can be quickly quashed by the Crown court at an early stage".[459] The Centre also raised the concern that there could be some conflicts of interest in cases against the Crown.[460]

340. We consider that the interests of justice would be best served by removing the requirement to obtain consent. We are persuaded that this recommendation would not lead to spurious and unfounded prosecutions, as there exist a number of other obstacles to bringing a private prosecution for corporate manslaughter. We recommend that the Government remove the provision in clause 1(4) requiring the Director of Public Prosecution's consent before a prosecution can be instituted.


440   Home Office, Corporate Manslaughter: The Government's Draft Bill for Reform, Cm 6497, March 2005, para 58 Back

441   Volume II, Ev 12, 44, 54, 89, 100 and 188 Back

442   Volume II, Ev 121 Back

443   Volume III, Q 438 (Detective Chief Constable Stoddart) Back

444   Volume III, Q 544 (Mr Rees) Back

445   Volume II, Ev 85, 170 and 241 Back

446   Volume II, Ev 191 Back

447   Volume II, Ev 323 Back

448   Volume II, Ev 324 Back

449   Volume III, Ev 135 Back

450   Volume III, Ev 135 Back

451   Volume III, Ev 134 Back

452   Volume III, Ev 129 Back

453   Home Office, Corporate Manslaughter: The Government's Draft Bill for Reform, Cm 6497, March 2005, para 60 Back

454   Volume II, Ev 47, 77, 93, 104 109, 114, 268 and 271 Back

455   Volume II, Ev 77 Back

456   See, for example, Volume II, Ev 32, 60, 85, 114, 154, 253, 263, 268, 271, 290 and 302 Back

457   Volume II, Ev 85 Back

458   Quoted in Volume II, Ev 171 Back

459   Volume II, Ev 171 Back

460   Volume II, Ev 171 Back


 
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Prepared 20 December 2005