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
(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 determinationfor 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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