Select Committee on Home Affairs and Work and Pensions Written Evidence


171.  Supplementary memorandum submitted by JUSTICE

  1.  The victims' surcharge was established by the Domestic Violence, Crime and Victims Act 2004 which inserted two new sections, s161A and s161B, into the Criminal Justice Act 2003. It is my understanding that the money from surcharges goes into the Victims Fund. The Fund has provided money for schemes and projects, but I have been unable to determine conclusively whether, and if so, on what basis, it provides compensation to individuals. I doubt that it does so, and therefore it should not be regarded as an alternative source of compensation for family members where an offence of corporate manslaughter is committed. Compensation could be provided by the Criminal Injuries Compensation Authority.

  2.  I was asked to find out whether section 130 of the Powers of Criminal Courts (Sentencing) Act allowed awards for loss of dependency. I have not been able to find any case-law on this point. The section itself provides:

130  COMPENSATION ORDERS AGAINST CONVICTED PERSONS

  (1)  A court by or before which a person is convicted of an offence, instead of or in addition to dealing with him in any other way, may, on application or otherwise, make an order (in this Act referred to as a "compensation order") requiring him—

    (a)  to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence; or

    (b)  to make payments for funeral expenses or bereavement in respect of a death resulting from any such offence, other than a death due to an accident arising out of the presence of a motor vehicle on a road;

    but this is subject to the following provisions of this section and to section 131 below.

  (2)  Where the person is convicted of an offence the sentence for which is fixed by law or falls to be imposed under section [110(2) or 111(2) above, section 51A(2) of the Firearms Act 1968 or section 225, 226, 227 or 228 of the Criminal Justice Act 2003,] subsection (1) above shall have effect as if the words "instead of or" were omitted.

  (3)  A court shall give reasons, on passing sentence, if it does not make a compensation order in a case where this section empowers it to do so.

  (4)  Compensation under subsection (1) above shall be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor.

  (5)  In the case of an offence under the Theft Act 1968, where the property in question is recovered, any damage to the property occurring while it was out of the owner's possession shall be treated for the purposes of subsection (1) above as having resulted from the offence, however and by whomever the damage was caused.

  (6)  A compensation order may only be made in respect of injury, loss or damage (other than loss suffered by a person's dependants in consequence of his death) which was due to an accident arising out of the presence of a motor vehicle on a road, if—

    (a)  it is in respect of damage which is treated by subsection (5) above as resulting from an offence under the Theft Act 1968; or

    (b)  it is in respect of injury, loss or damage as respects which—

      (i)  the offender is uninsured in relation to the use of the vehicle; and

      (ii)  compensation is not payable under any arrangements to which the Secretary of State is a party.

  (7)  Where a compensation order is made in respect of injury, loss or damage due to an accident arising out of the presence of a motor vehicle on a road, the amount to be paid may include an amount representing the whole or part of any loss of or reduction in preferential rates of insurance attributable to the accident.

  (8)  A vehicle the use of which is exempted from insurance by section 144 of the Road Traffic Act 1988 is not uninsured for the purposes of subsection (6) above.

  (9)  A compensation order in respect of funeral expenses may be made for the benefit of anyone who incurred the expenses.

  (10)  A compensation order in respect of bereavement may be made only for the benefit of a person for whose benefit a claim for damages for bereavement could be made under section 1A of the Fatal Accidents Act 1976; and the amount of compensation in respect of bereavement shall not exceed the amount for the time being specified in section 1A(3) of that Act.

  (11)  In determining whether to make a compensation order against any person, and in determining the amount to be paid by any person under such an order, the court shall have regard to his means so far as they appear or are known to the court.

  (12)  Where the court considers—

    (a)  that it would be appropriate both to impose a fine and to make a compensation order, but

    (b)  that the offender has insufficient means to pay both an appropriate fine and appropriate compensation,

    the court shall give preference to compensation (though it may impose a fine as well).

  3.  I was also asked for JUSTICE's views on the section of the written evidence submitted to the Inquiry by the Association of Chief Police Officers (ACPO) regarding investigative powers. I will deal with each of the suggestions in para 2.11 of that memorandum in turn:

Urgent authorities

  4.  ACPO suggest that urgent authorities, similar to Schedule 1 PACE, should be granted upon application to a senior police officer, to enter premises and seize material where there is a high level of urgency and where a delay would have a deleterious impact on the investigation.

  5.  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. Article 6 has been found to apply to companies in criminal proceedings against them and it is arguable that companies also have rights under Article 8 of the Convention; their employees certainly do. Although public sector corporations may not have similar rights, in our view the procedure should be the same for all corporations currently subject to the draft Bill. Adequate safeguards should be put in place to ensure that these rights are not subject to arbitrary interference. In our view, in these circumstances the need to apply to an independent judicial authority in order to obtain a warrant is a necessary safeguard against the arbitrary use of powers of search and seizure.

  6.  We therefore believe that the requirement for an application to a judicial authority should be maintained; we are not aware of any reason why it should not be before a Circuit judge, as presently. However, if urgency does not permit the traditional Schedule 1 procedure then we would recommend that: in circumstances of urgency the requirement to pursue an alternative method of obtaining the material (eg to request that it be handed over voluntarily) could be waived. If the court was satisfied that to alert the corporation would endanger the investigation then the hearing could take place without notice. Practical arrangements could also be made for an urgent determination—for example, allowing a telephone hearing. Consideration could also be given to an injunction procedure whereby police could obtain an injunction against a corporation forbidding it from destroying any documentation or disturbing a crime scene.

  7.  We also note that the disclosure notice procedure under the Serious Organised Crime and Police Act 2005 (SOCPA) discussed below could be extended to the offence of corporate manslaughter, although we believe that it is preferable to obtain a search warrant or order for the giving up of documents under PACE for the reasons discussed below.

Compulsory questioning

  8.  ACPO suggest that compulsory questioning powers should be provided in relation to this offence, on the authority of a senior police officer. Compulsory questioning directly engages the privilege against self-incrimination; its use should therefore be narrowly prescribed. In order to avoid breaching Article 6 of the European Convention, current compulsory questioning powers are subject to the caveat that the evidence obtained via such powers should not be used in proceedings against the defendant except for offences such as perjury or failure to answer compulsory questions, or in circumstances where he gives evidence inconsistent with the statement made under compulsory powers.

  9.  The police have been given powers of this nature in the context of a variety of offences by SOCPA (see sections 62-65). We were opposed to such a radical extension of compulsory questioning powers; however, these powers did exclude "excluded material" from their ambit. Excluded material, as defined by section 11 PACE, includes business records held by a person in confidence. Parliament evidently felt it inappropriate to allow excluded material to be surrendered to police under compulsory powers.

  10.  If such powers were given to police in corporate manslaughter cases on the proviso that no one providing material would be prosecuted on the basis of such material, the protection offered by this would be unclear in the context of a corporate offence, where the person providing the material is not being charged in all events.

Use of experts

  11.  Experts are, of course, frequently used in serious criminal investigations and often examine crime scenes as well as evidence that is sent to them. We are concerned that potential expert witnesses in a case should retain the correct degree of independence from the investigation. For that reason we have concerns at the idea that they should be given police powers while examining a crime scene.

November 2005





 
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