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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 540-v House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HOME AFFAIRS AND WORK AND PENSIONS COMMITTEE (DRAFT CORPORATE MANSLAUGHTER BILL)
DRAFT CORPORATE MANSLAUGHTER BILL
Monday 14 November 2005 MR DES PRICHARD, MR ANDREW HOPKINS, DEPUTY CHIEF CONSTABLE JON STODDART and DETECTIVE CHIEF SUPERINTENDENT MARK SMITH
MRS JAN BERRY, MR GEOFF DOBSON and MS SALLY IRELAND Evidence heard in Public Questions 402 - 490
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs and Work and Pensions Committees (Draft Corporate Manslaughter Bill Sub-Committee) on Monday 14 November 2005 Members present Mr John Denham, in the Chair Colin Burgon Mr James Clappison Harry Cohen Mr Phillip Dunne Natascha Engel Justine Greening Gwyn Prosser Mr Terry Rooney ________________ Memoranda submitted by the Association of Principal Fire Officers and the Association of Chief Police Officers of England, Wales and Northern Ireland
Examination of Witnesses
Witnesses: Mr Des Prichard, Chairman, Association of Principal Fire Officers, Mr Andrew Hopkins, Brown and Jacobson, Solicitors, Deputy Chief Constable Jon Stoddart and Detective Chief Superintendent Mark Smith, Association of Chief Police Officers of England, Wales and Northern Ireland, examined. Q402 Chairman: Good afternoon. Thank you very much indeed for joining us for this fifth session on the draft Corporate Manslaughter Bill. I wonder if you could introduce yourselves to the Committee, very briefly, and then we will get underway. Mr Hopkins: My name is Andrew Hopkins, from Brown and Jacobson, solicitors, in Nottingham. I have been advising the Association of Principal Fire Officers in connection with the Bill. Mr Prichard: I am Des Prichard. I am the Chairman of the Association of Principal Fire Officers. Mr Smith: I am Mark Smith, I am the Detective Chief Superintendent for British Transport Police and a member of the ACPO on site working group. Mr Stoddart: I am Jon Stoddart. I am the Detective Chief Constable of Durham Constabulary and I am Chairman of ACPO on site working group, standing in for Ian Johnson. Q403 Chairman: Thank you very much indeed. Perhaps if I can start with the ACPO representatives. At the moment, as you know, looking at the Bill, police forces are not covered by the offences. Leaving aside the exemptions for public functions, are you happy with the Government's plans to bring police forces within the scope of the Bill at some time? Mr Stoddart: We welcome the Bill, Chairman. We believe the police service should be part of the statutory framework and the legislation that is proposed. We take our responsibilities as an employer extremely seriously. In the non-operational context we feel that we have our responsibilities and we should be liable, as any other employer, in respect of the day to day running of our business. Not operationally, that is where we do feel that there are issues of public concern. Policing is often a very dangerous business and we do engage with vulnerable people. We believe that the existing statutory framework and legislative framework serves us adequately in terms of personal responsibility and liability in terms of voluntary and involuntary manslaughter. We believe that to introduce more legislation would create a risk averse service and could well undermine public confidence in the police service. Q404 Chairman: We will come back to some of those points in detail in due course. Although the Government has only said in principle it would like to cover police forces, and they are not currently covered by the drafting Bill, you would like the Government to resolve the legal issues about that so you are brought within the Bill now rather than brought in by some later amendment to the Bill? Mr Stoddart: I believe on behalf of ACPO that is the right way to do things. We should move forward, embrace it, this is positive, other than, as I say, in the operational arena. Q405 Chairman: That is very helpful. To the fire officers: within the Bill you are incorporated bodies. We got the impression slightly from your evidence that you feel this is possibly not right because the police forces are not going to be within the Bill. The police forces are attempting to be covered by it. Mr Hopkins: I think what we do is share some of the points which were made a few moments ago by my colleague. Our concern is that, like the police force, we face on the ground some very difficult operating decisions in a high pressure and high risk environment. In that sense I think we share the role the police are operating within. I think our submissions, varied though they were, also focused on proposed clause 4 of the Bill in connection with the "exclusively public function". In general terms, the work environment in which fire officers operate often is beyond their control. They arrive at the scene of a particular incident, whether it be at the road side, factory or wherever, and often they have moments to make decisions about how things should be taken forward. As far as the question of the Bill itself is concerned, we do see proper similarities between ourselves and police services in a sense. Q406 Colin Burgon: These questions can go to both ACPO and APFO. First of all, I noted the comments that Mr Stoddart made about qualifications that you have got. Underlining the aim of the Government in this Bill is to ensure that public bodies are treated in the same way as private bodies where they are performing the same activities in equivalent circumstances. Do you generally agree with this proposition? Mr Stoddart: Very much so, Chairman. We are employers, the same as private business, whether it is Tesco's or Durham Constabulary, we have to take our responsibilities. We believe that in the Bill as drafted, although clearly we will negotiate some of the areas of concerns we have, it is right that the police service are held to account as employers in the non-operational environment. There are lots of examples that I can give you later on where we think, rightly, we should be held to account. Mr Hopkins: My point would be similar, save that of course the fire service is very much focused. The police service has a broader range of responsibilities, the fire service are dealing, however, as the 2004 Fire and Rescue Services Act showed, with emergencies, attending the scene of a disaster of one form or another. I do think we are distinct in that sense. The majority of our work is focused on operational matters and parts of the Bill do cause us a concern in that sense. Q407 Colin Burgon: In what types of situations have either of your organisations been held to owe a duty of care in negligence to those who have been killed in the context of their activities? Mr Stoddart: There have been examples over the years of police officers standing trial, charged with manslaughter, whether this is in pursuit of a firearms' operation, a death in police custody or maybe malfeasance in a public office rather than manslaughter, but certainly I know they have been charged in both, and in pursuit of stolen cars or suspected stolen cars. There are a large number of circumstances where the police has a very broad remit. The legislation, at the moment, we believe is fit for purpose because it identifies individual breaches and yet it will also identify where there are leadership, command and control or even policy issues. We are highly accountable, the police service, ultimately through committees like this to Parliament, through our police authorities to the media and to the communities. The IPCC is also a welcome and transparent investigative body who are able to conduct inquiries into this kind of issue where there are fatalities, and do, and exercise those powers in a transparent and open manner. We believe to bring the operational side of policing into this legislation would not be good. Mr Hopkins: I would agree with those points. I would add to that, that of course the Health and Safety at Work Act which applies quite properly to the fire services includes within it section 37 which deals specifically with senior managers and those with similar roles, section 7, dealing with the responsibility of one employee to another, and that does very much focus the minds of those in positions of responsibility because they can be on the receiving end of prosecution. Gross negligence manslaughter applies in its current form to those within the fire services. Misfeasance in public office also in theory, although I recognise that few prosecutions are brought in respect of it. There is a significant level of accountability by reference to the existing legislation you could say. Of course - perhaps a different matter - the financial penalty proposed in this Bill is not dissimilar to that within the Health and Safety at Work Act in the form of an unlimited fine. We say the existing framework does accord a significant level of accountability. Q408 Colin Burgon: The next two questions are really related. Should a police or fire authority be prosecuted for this offence if its gross negligence causes a firefighter or police man or police woman's death? If not, why not? Mr Stoddart: I think ACPO's position on this is that the police authority's position is slightly different. If there is a policy that is either unlawful or quite clearly failing then there should be a liability attached to that, yes. Mr Hopkins: We would assert the existing legislation, whilst not allowing a direct causal link to death, allows the mater to be thoroughly investigated and a liability accorded under the Health and Safety at Work Act. Q409 Colin Burgon: If that was the answer to the firefighter, police man or police woman, what is your response to the death of a member of the public in similar circumstances? Mr Stoddart: Could you maybe give an example? Some of these are very situational, I think you have to be careful. Q410 Colin Burgon: Could you highlight the possibilities that we are talking about here? Your experience is far greater than mine. I am trying to move on from looking at how it affects the force that you are responsible for to the public at large, and how you would respond to that? Mr Stoddart: As an employer, I can think of a number of areas where certainly we would be liable. Things like training, maintenance of our fleet, welfare of staff, non-operational contact with the public where people may enter buildings which are fundamentally dangerous, mismanagement of our estate. We would argue that, in our belief, is appropriate to be brought into the corporate manslaughter side of the legislation. Our concern is the operational side but otherwise, yes, we feel that would be appropriate. Q411 Colin Burgon: Members of the public in your employ and within your estate, certainly not in terms of your operational activity? Mr Stoddart: That is right. Q412 Colin Burgon: That is your big sticking point? Mr Stoddart: That is right. Also, for visitors, contractors, site visitors, members of the public who enter non-operationally into the estate or are given lifts in vehicles and so on, obviously we have a duty of care. Mr Hopkins: Dealing with the question of the public, naturally the fire service have a responsibility, fire tenders do attend non-operational events, but I would point, once again, to the provisions of the Health and Safety at Work Act. Section 3 deals specifically with the question of a duty to the public. I wonder whether the question of the level of breach is a matter for sentencing, as it is currently under Health and Safety legislation. Mr Prichard: Chairman, if I can give some particular examples to your Committee from the fire service perspective, both on employees and members of the public. Earlier on this year at Bolton Crown Court, Greater Manchester Fire Authority and the Chief Officer were at court. Four years prior to that a fire officer had drowned in a lake. The fire tender had been called to a lake where a young person was in the lake swimming with his friends and went under the water. The friends called the fire service and when they arrived, 15 minutes after the call, because it took them 15 minutes to get there, the young person was under the water. The friends pointed out where they had last seen their young friend. The fire officer tied a rope around his waist and swam out while his colleagues, on the side of the lake, held on to the rope. The fire officer swam around and dived under the water looking for this young person but could not find him. He then asked the crew to pull him back and they pulled him back but the line had sunk just beneath the water and it snagged on a branch, unbeknown to him and the crew. The result was he drowned, the fire officer drowned with a line tied around his waist. The HSE sought a prosecution against Greater Manchester Fire Authority there. This is the operational environmental in which the fire and rescue service operates. Also, just a few years ago at the Blue Lagoon in Bedfordshire, there was a case which was well-reported. A member of the public parked his car on the Blue Lagoon, a clay pit. Some of you may recall the car rolled over the edge and 20 feet down into the clay pit. It was on its nose with its end towards the water but underneath the water. When the fire crew arrived, there were members of the public in the water, trying to rescue these young people who were still trapped in the car. The fire and rescue service, it was Bedfordshire, put a ladder into the water. The ladder is not designed to go into the water and they climbed down into the lake and then swum under the water without the right equipment to try and rescue these young people. Sadly, two children died in that car. This is the operational context in which the fire and rescue service will find itself and the risks which fire officers may put themselves in. Q413 Chairman: Was there a prosecution in the Bedford case as well? Mr Prichard: No, there was not. The HSE investigated that. Q414 Chairman: What was the outcome of the prosecution in the first case? Mr Prichard: In Manchester, the prosecution failed. Q415 Chairman: The prosecution failed, in principle, though, is there a fundamental reason why every single type of operational issue should be excluded from the possibility of prosecution? The logic of what you are saying is that it should be excluded from HSE? Mr Prichard: No, the Health and Safety at Work Act applies. We wholly support the Health and Safety at Work Act and other associated legislation. Q416 Chairman: In which case then, given we have been told consistently from witnesses from pretty much all sides of the debate, employers that abide by existing health and safety guidance and best practice are not going to be successfully prosecuted under corporate killing legislation, what is the reason for saying that this legislation should not apply to circumstances where the health and safety legislation should apply? Surely there are circumstances where the responsibilities of management are sufficiently strong, but the higher sanction that comes with this proposed legislation should apply? Mr Prichard: Chairman, if I can answer that from my Association's perspective. We are not convinced it would be in the public interest in the operational environment to have this legislation apply to the fire and rescue service; we are not convinced. We absolutely, as an employer, understand, welcome and support our responsibilities under the Health and Safety at Work Act and associated legislation, absolutely. Q417 Chairman: But the two cases you have given seem to support the view that people could suffer serious penalties at the moment, but in practice things are investigated; occasionally there will be prosecutions that fail and that is the nature of the criminal justice system; and in other cases, things are investigated and nothing happens. I do not entirely understand though why, in principle, there cannot be a breach of management responsibility so serious that this offence would be the appropriate one. Mr Prichard: The concern of the fire and rescue services is that there will be a risk-adverse approach to these types of incidents. What you will instruct, in Manchester for example, is when you arrive at the side of the lake you do not enter that water until a boat arrives and so the crew will be formally instructed by their senior management not to do that until a boat arrives. Q418 Chairman: Is it not the case at the moment that one of the neat effects of the provision you draw on at the moment is that individual officers might well find themselves up in court on manslaughter charges but senior managers in the police service are unlikely to? Mr Stoddart: I think to say it is unlikely is not necessarily true. There are current inquiries which we cannot touch upon obviously, but the fact of the matter is, I agree with my colleagues from the fire service, that this is about risk aversion and undermining public confidence. If we have such draconian constraints over the service, we could well end up with a completely risk-free policy, risk-free strategy and risk-free leadership. Q419 Chairman: I understand that, but I put it to you that at the moment that individual members of police service and fire authority put their lives at risk as part of their normal split-second judgments they make. The way the law currently stands is that those individual frontline officers may well find themselves being caught on a manslaughter charge for an individual misjudgment. The only difference about this legislation is that it extends some of that responsibility to senior managers in those services who are unlikely to be caught at the moment. Mr Smith: Yes, from my perspective, even with the current provisions, if the senior management of the force were found to be negligible in any of the chain of events that caused the death, they could currently be prosecuted equally as a frontline officer. Certainly when an incident occurs, with a frontline officer, there will always be that examination of policy and process that led him or her there. I would say that the opportunity to prosecute senior managers within the police force is there at the moment, albeit with things like discharging a firearm, which is heavily dependent on the discretion of the officer at the time and so that issue about policy and procedure is there. It was one of the things we sought some clarity on because with the exclusive public function definition it is sometimes very difficult to separate policy and procedure from the frontline activity. That was one of the issues we sought some clarity on with the final legislation. 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 apportionate 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 Hopkins: 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 Hopkins: 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 we 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 ten 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 which 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 Smith: 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 offence, in 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 sure what that sentence means. I will pass over to my legal adviser here because I think that opens up a lot of questions to me as a chief. Mr Hopkins: The difficulty with that definition is that unlike the definition in the Adoma 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 Adoma test would be better applied within the Act itself. Q432 Harry Cohen: Can you spell out that test? Mr Hopkins: The Adoma case is in effect whether the jury take the view that the admission that they have heard evidence of is something they feel is criminal. I can give you a reference to the case, if you wish. Q433 Chairman: Can you write to us. Mr Hopkins: 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 Stoddart: 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 Stoddart: It does. Q436 Mr Dunne: Are there any parallels in other parts of the law where you encounter these difficulties? Mr Stoddart: 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 to 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 Stoddart: 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 Stoddart: 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 Stoddart: 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 there 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 under section 20 of the HSE. 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. 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 or 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 reading, 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 Hopkins: 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 Hopkins: 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 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 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 what 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. Fire fighters are walking into the burning building as everyone else is leaving. It is a different environment. We are not saying that the 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 and it may impact upon their decision making process to the detriment of the public. Mr Hopkins: 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) Witnesses: Ms Jan Berry, Police Federation of England and Wales, Mr Geoff Dobson, Prison Reform Trust, and Ms Sally Ireland, Justice, examined. Q448 Chairman: Thank you very much indeed to the second group of witnesses for coming in this evening. Perhaps you could introduce yourselves briefly. Ms Berry: My name is Jan Berry and I am the chairman of the Police Federation. Mr Dobson: Geoff Dobson, deputy director of the Prison Reform Trust. Q449 Chairman: The second time in four working days before the Home Affairs Committee. Ms Ireland: I am Sally Ireland. I am the senior legal officer for criminal justice at Justice. Q450 Chairman: The government have said that in due course the legislation should apply to the police force. Is it your view that they need to make sure that it does in this Bill as it goes through rather than having some later amendment? Ms Berry: I think that is our view. It took considerable time for the police to come under the health and safety legislation and this Corporate Manslaughter Bill has taken a fair amount of time from the Law Commission report to now. Our fear is if we miss this opportunity we are not quite clear when the next opportunity will arise so we would like to see it go through with the Bill itself. Q451 Chairman: Some of the problems seem to be technical, legal problems rather than ones of principle because of the particular legal status of the police. Does the Federation have any views legally on what the government ought to do to the Bill to include police forces? Ms Berry: I do not think that is within our line of expertise but it would appear that, in the same way as the government have chosen to add a schedule and a whole list of government departments to that schedule, I am not sure why it is not possible to add police forces to that list. Q452 Mr Rooney: Are there any special considerations that you think Parliament should take into account if they were to bring the police force wholly within the Bill? Ms Berry: No. I take a different view to the view taken by ACPO. If the Police Service is brought within it, which it is agreed in principle it should be, all aspects of policing should have the capability. Q453 Mr Rooney: Including operations? Ms Berry: Yes. Q454 Mr Rooney: Justice is concerned -- some might say surprisingly -- that public confidence in the police could be severely undermined if there is a successful prosecution for corporate manslaughter. Is this a reason not to extend the cover to police activities? Ms Ireland: No. It is one concern that we have. It does not just extend to the police. It extends to all public authorities. Unlike private companies, the public generally do not have a choice about whether to continue using the services of public authorities. It is a slightly anomalous position for a public authority to subsist with a very serious criminal conviction against it. That applies all the more where it is a law enforcement or prosecution agency or a police force but to an extent, although it is a concern, we accept that it is perhaps more theoretical than practical and we would not use it as an argument to avoid extending the Bill to police forces because I think there are more important considerations in favour of its extension. Q455 Mr Rooney: Do you not think there has been in certain cases, which we will not go into individually, great opprobrium on the police because nobody was prosecuting? Does that not undermine it even more if the police seem to be exempt from the criminal justice system? Ms Ireland: Yes. It is important to maintain public confidence that you have accountability. The question is how is that accountability generated. On balance, extending this offence to the police will help, particularly in areas such as deaths in custody, where other mechanisms of accountability have not been seen to be effective. Ms Berry: Operational matters should come within the Act when it comes in. Q456 Mr Rooney: Justice has recommended that there should be no general exemption for exclusively public functions. Can you provide any specific example of an exclusively public function where government would be justified in exempting? Ms Ireland: No. The obvious one that springs to mind in considering potential public functions that could be exempted is the emergency situation which I know you had evidence on in the previous session. For example, a natural disaster, the aftermath of a terrorist attack. Bearing in mind that the test that is required is gross negligence causing death, which is not an easy threshold to reach, I think it is appropriate that even in an emergency situation workers and members of the public should be protected in principle. If there was a genuine case because in a certain area the extension of liability could lead to defensive action or a lack of action, say, on the part of the public authority, that could be scrutinised but we should be slow to exempt any public function from the offence and really carefully scrutinise any representations that anyone should be exempted. Q457 Mr Rooney: You do not think there should be any exemption for exclusively public functions but you have said that you think the police should be exempt? Ms Ireland: I have not said that. Perhaps I have not expressed myself properly. We do not think that the police should be exempt. We think it is a concern that the machinery of justice is brought into disrepute by a serious criminal conviction but on balance we favour the extension of the offence to the police. Q458 Mr Rooney: You favour no public exemptions; you are in favour of the police being included and you are in favour of the police prosecuting, but you have concerns about the effect of a successful prosecution in terms of police standing and status in the community? Ms Ireland: Yes. It is possible to be in favour of something on balance but obviously recognise that there are other arguments and that is our position. Q459 Mr Rooney: Mr Dobson, can you explain your concerns about the way the exclusively public function exemption might apply in this context? Mr Dobson: Yes. The Prison Reform Trust function is limited. Our interest is limited to prisons. Our belief is that no institution exercises greater power than a prison does over its inmates. We were surprised and disappointed to see that the guidance to the draft Bill argued for those custodial powers to be exempted. We are obviously arguing that they should be included. We produced a couple of years ago a guide to the Human Rights Act jointly with the Prison Service. I will read a couple of sentences from that. "Public authorities including the Prison Service must not intentionally cause anyone's death. They also have an obligation to protect the right to life of people in their care", a very clear acceptance of that duty of care for prisoners. We also have a concern at what is an increasingly vulnerable population in our prisons. To give you an example, 20 per cent of male prisoners and 37 per cent of female prisoners report having previously attempted suicide prior to their reception into prison. We think there is a very strong onus on those running our prisons to exercise their duty of care to the highest standards. Q460 Mr Rooney: Without naming any individual cases, in your experience, have there been any prison suicides where you think the threshold of gross negligence might have been crossed? Mr Dobson: I have talked to Debra Coles, the codirector of Inquest about this and they work very closely with bereaved families. We think there have been, yes. Q461 Chairman: Can you explain what seems to be the slightly surprising position where ACPO are arguing that front line officers may suffer risk aversion if this Bill is brought in and not do some things they might otherwise do that the public would want them to do; and yet the Police Federation that represents those front line officers argues that this Bill should cover policing? Ms Berry: I can argue risk aversion in both directions. I can understand that some people in fear of a prosecution being taken against them may choose not to take a certain course of action. Policing and the Fire Service are dangerous jobs. What we are saying is that we should do everything possible to try and reduce the dangers and make them as safe as possible but we understand that there are going to be risks associated with that. For example, on the risk aversion side, it is not to do with death but I think it demonstrates the point. Stop and search is something which has attracted a fair amount of attention and I do not think there is any doubt that a lot of police officers stopped using stop and search in circumstances where it may have been more appropriate because of the fear of action being taken against them. There was some work undertaken in one part of the country where they actively trained police officers in stop and search powers. Following that piece of training the powers were used far more effectively than they ever had been previously and therefore the quality of the searches was much better. The arrests that came from them was much better. If you are a learning organisation, if you make sure that your training is right and use the operational experience to good effect later and you train people properly, risk aversion does not have to be taken into account. Q462 Harry Cohen: On deaths in custody, are you aware of any cases in which it could be argued that the death of a prisoner has been caused by a gross senior management failing of the organisation responsible for that prisoner? Mr Dobson: I answered a similar question from Mr Rooney and said we had been in dialogue with Debra Coles of Inquest. We think there may well have been. He suggested that I did not name cases. I am not sure whether you are suggesting I do. Q463 Harry Cohen: No. Ms Berry: I do not think from a police point of view I could speak about particular cases but a number of police officers have faced discipline charges in regard to deaths in custody. I have given evidence here before on the level of training that is given to custody officers and senior officers in the Police Service. I am not satisfied that we train people ahead of expecting them to take on responsibility for some of these functions. Ms Ireland: Justice does not deal with individual cases so I cannot comment on that aspect. There is an evident lack of successful prosecutions in relation to individuals for homicide offences in relation to deaths in custody which does give rise to the suggestion that, if there are failings, they are collective rather than individual. That is one explanation for it. Q464 Harry Cohen: Can you explain why you believe it is important that deaths of those in custody are not exempted from the Bill? Ms Ireland: Our obligation effectively is to have a framework of adequate deterrents in place to protect the right to life. In the first part of my written submission, I talk about Article 2 of the European Convention and the Court has stressed that people in custody are vulnerable and that the state has a duty to protect them. Obviously, they are people over whom the state exercises one of the greatest levels of control. I am very worried about this exemption. I think it is perhaps the worst thing about the Bill. Although prison officers and police officers remain individually liable, it is very difficult to prosecute individuals for these offences. One explanation is that the failures are collective. Another explanation is that there are evidential difficulties that arise in prison or police custody settings which have prevented effective prosecution of individuals. I take my numbers second hand from Inquest. Their statistics show 95 self-inflicted deaths in prisons in 2004 and 63 so far this year. The numbers are high. Overall they are increasing although that is not surprising because the numbers of people in custody are increasing. It seems that the current systems are not working and I believe, although perhaps not in its current incarnation because there are problems with this offence as currently drafted, if properly drafted, this offence could give rise to accountability where manslaughter as an individual offence fails. Mr Dobson: It is important to remember that we are not just talking about self-inflicted deaths. There has been a lot of attention to suicide. We are also talking about cases where one prisoner might have killed another prisoner and there is a very high profile example going on at the moment about such a case. We are talking about cases where a prison officer or prison staff member might be suspected or where there has been neglect, where somebody's care might have been neglected while they have been in custody. There is a variety of cases. When we were asking the Bill team about their intentions or what they thought the intentions of the Bill were, we asked them whether hospitals would come under this Bill in terms of their responsibility and duty of care to patients. They said they would. We then asked whether colleges and universities would come under this draft Bill in terms of their responsibilities to students and members of the public. They said they would. It seems to us to be almost beyond belief that prisoners who are in a very powerless situation in an institution should be exempt. We find it very difficult to understand the rationale. Q465 Harry Cohen: We heard an argument from ACPO in relation to people in police custody and a similar argument would run for those in prison custody. There are already a lot of systems in place. There are independent inquiries, public inquests before juries. Are you saying those are not sufficient? Ms Ireland: It is not providing an adequate deterrent. We can see that from the numbers. Evidently, the threat of criminal sanction, primarily individual criminal sanction at floor level but for senior management staff, even collective criminal sanction as well, is the most effective deterrent and the most effective spur to make sure that the right procedures are in place. At the moment, we have an inquest verdict of unlawful killing and no prosecution which seems quite an anomalous position. Mr Dobson: The first point is to distinguish between means and ends. A conviction for corporate manslaughter denotes the commission of a very grave criminal offence. That is the main reason why we think this should apply. Looking at our secondary concerns that relate to the point of your question, if we look at the Prison and Probation Ombudsman, who is charged with conducting investigations into deaths in custody, that position is not even on a statutory basis at the present time. It is an executive appointment. If we look at inquests, just this afternoon I received notice of an inquest to start tomorrow and this is fairly typical. It relates to the death of a 20 year old, Andrew Barclay, who died in HMP Norwich on 24 April 2003. It is very commonplace for inquests to begin two, three or even four years after the death of a prisoner. That does not seem adequate. If we look at the investigative powers of the inspectorate, we have real concerns about current proposals from the government to subsume the prisons inspectorate within a criminal justice inspectorate which we feel would be dominated by the police because of their size, the amount of work and the number of staff. We have real concerns about the current investigative measures for deaths in prison custody. Ms Berry: The landscape can get very busy with regard to accountability and governance. ACPO spoke about that earlier. We should not be seeking more legislation if the legislation currently is successful. I believe there is a need for this but I also think you have to have some very strict protocols as to who has primacy in any particular case. Some of that has already been worked through in working agreements between ACPO and HSE and other bodies, but I think it is important because it would be totally wrong to have the inquest and, if that did not work, to have the IPCC and, if the IPCC did not work, to have somebody else. There need to be very clear lines of responsibility and accountability. Investigations and determinations need to be happening as close to the event as is possible. Otherwise, all parties feel they are victims of the system rather than being supported by the system. Q466 Harry Cohen: You said prosecutions concentrate the mind. Some people have referred to that as a culture of fear in other contexts. Do you think that will reduce deaths in custody, the fear of senior officers being prosecuted? Ms Ireland: It is important to remember that we are not talking about the individual prosecution of senior managers here or of senior officials. I think it would. Q467 Harry Cohen: Why are we not talking about that, because it is their policy. Ms Ireland: The individual officer in question is not being prosecuted. It is a corporate offence. We need to bear that in mind. We also need to bear in mind that it is a strict test. It is gross negligence that is required for this offence. Any officer carrying out his or her duties competently and to the best of their ability should not have to worry about prosecution for corporate manslaughter. One consequence that might be very useful is that if, in these circumstances, there is a serious criminal offence in place, what that could mean is that we have things like the preservation of evidence, which I think may be one problem surrounding deaths in custody which may help to found a successful prosecution. It is also important to bear in mind the role of the private sector. The possibility of a very large fine will concentrate the mind of the private sector organisations almost more than anything. Ms Berry: From a sanctions point of view, I do not think the fear of prosecution necessarily is going to resolve the situation and make the Police Service the learning organisations we would want to see. I think there are other sanctions that can do that. A fine from a policing point of view would reduce a policing service to other people. I am not sure if that would be a proper use of public funds but you have to look at what sanctions could be brought to bear against a police force to ensure that lessons are learned and that such a finding was not just forgotten. It has to have real teeth and I am not convinced that what we have at the moment has teeth. Q468 Harry Cohen: I do not know if you heard the previous session. It is the same question. Should the same law apply to both or should private people be treated separately? Mr Dobson: Our view is that it is essentially the same duty of care, whether it is the public sector or the private sector or the independent sector. It is not beyond the bounds of possibility with the new world contestability to think of a voluntary sector organisation that could be running a secure training centre in years to come. We think the same duty of care applies whoever the provider is and there should be a level playing field. All should be held accountable. Ms Ireland: I agree that both should be accountable and the duty should be the same. The case is even stronger in the private sector than the public sector, although it is not to denigrate the case for extending it to the public sector. In relation to private persons, I think it is open to question what kind of accountability there really is at the moment. You may have read about recent events whereby some of the Home Office team were not allowed into a secure training centre to investigate the use of restraints. They underlie this. I am not an expert on the types of contacts the Home Office makes with private sector providers but it would seem to me that the threat of a contract being removed is open but that relies on the Home Office taking action. It is a market place where there seem to be only a small number of providers and it is not practical to keep changing every six months the organisation that is running the prison. Therefore, we need this criminal sanction. Q469 Gwyn Prosser: As you know, the draft Bill currently gives exemption to public authorities even if they make grossly negligent public policy decisions which might have caused death. What is your view of that part of the Bill? Ms Ireland: Extending the liability to public policy decisions could be very difficult. I can see an argument in favour of it where death is caused and there is gross negligence but, firstly, liability might be unlikely to arise because there may be issues about remoteness or causation. Secondly, gross negligence would be hard to establish and also there may be issues there about the separation of powers. That one may be a little bit too difficult to get into this Bill and I think would require more thought. Ms Berry: There are issues with regard to public policy about how you use your resources. That would be very difficult to incorporate within a Bill of this nature. You have to prioritise. You cannot have police officers and all your resources everywhere at all stages. The Police Service has worked really hard to develop tools such as the national intelligence model to use that to as much effect as possible. I think it would make it very complicated for it to be included within this Bill. Q470 Gwyn Prosser: Going beyond the issue of the burden of proof of gross negligence decisions, can any of you think of an area of public policy decision making by a public authority in the past which might have come anywhere near the bounds of this clause? Ms Berry: No. Q471 Chairman: A few years ago a couple of police forces announced they were going to buy and use tasers before they had been approved by the Home Office for use by police forces. If one of those police forces had bought and used tasers and somebody had died of a heart attack when they were first used, does that not open up an area where you have a public policy decision which, if it had been taken with a proper reference to scientific evidence and so on, should be open to this sort of criticism? Ms Berry: A taser is a prohibited weapon and would need to be properly registered. The forces were foolish, to say the least, to have taken that course of action. I take your point. There always have to be trials but in this day and age we need to ensure that trials are undertaken in a more safety conscious environment than maybe has previously been the case. We are more transparent and accountable than we have ever been in our history. Q472 Chairman: It may be possible to conceive of a type of public policy decision that was so irresponsible that it would be frustrating if you could not use this law. Ms Berry: If this was the only course of action but there are other vehicles that you could use in public policy decisions. Q473 Justine Greening: The draft Bill relates specifically to corporations, not individuals. In the Bill it expressly excludes secondary action. Can you explain a bit more about why you think the government should include individual liability for counselling and procuring an act of corporate manslaughter? Ms Ireland: Yes. This relates to the questions about the review of the law of murder and hopefully the review of the whole law of homicide. Murder will be reviewed this year. What we would prefer to see, rather than a corporate manslaughter offence followed by the review of murder, would be a new law of homicide that could be more comprehensive and fit together better with this. What we now have is a law that applies specifically to corporations. Having this law apply simply to corporations may make it difficult to prosecute individuals who may be guilty of gross negligence manslaughter alongside corporations where it is a jury applying two slightly different tests. It is possible but difficult. There have been suggestions that there could be difficulties even resulting in an abuse of process argument to do with things like separate trials or individuals being tried together. There should be scope for access or liability for this offence. It should be made clear that the standard concepts of access or liability in participating in the offence may not be appropriate here because the level of culpability required could be very low. It is one of the characteristics of this offence that it is made up of a chain of actions by a large number of people. What you do not want is somebody being labelled with a manslaughter conviction who objectively has only committed something of very low culpability. Having looked at the current law on access or liability on counselling and procuring, I think it should be necessary that the defendant intended that the offence or an offence of the same type should be committed. That is the law. That makes it quite difficult because it relies on the negligence so what would be needed would be some statutory drafting, rather than just relying on the general principles. It may be better to incorporate that aspect into the review of the law of homicide that is coming up. Q474 Mr Clappison: Is it your view that somebody could be tried alongside a corporation with the individual standing trial for the existing offence of gross negligence which is already in existence, together with the company standing trial for the corporate manslaughter offence? Is it your view that they could be tried together in the same proceedings? Ms Ireland: It is my view that it is possible. It might give rise to legal argument from defendants that that would be unfair to them. It could cause problems evidentially as well because the person you would be trying in relation to the individual offence you may want to call as a witness in relation to the corporation. It could be very difficult. It would be better to ask somebody like a judge if you want a definitive answer. Chairman: We will. Q475 Justine Greening: If we get to the stage where a senior manager was eventually convicted of corporate manslaughter, do you think it is appropriate to disqualify them for a period of time from holding that office in the future? Ms Ireland: Yes. That would be an appropriate sanction and perhaps a very effective deterrent sanction. The question originally was when might it be appropriate to disqualify a senior manager from holding a similar position. I would emphasise that what we cannot have is a situation where people are being disqualified on the back of their corporation being charged because that amounts to conviction without trial. I can see why it might be thought to be desirable but it would be contrary to principle. Q476 Mr Dunne: Is that not slightly contradictory to what you have just said? Ms Ireland: No. If somebody is able to be charged alongside the corporation, that should be done whether it be with manslaughter or with a health and safety offence. What we cannot have is a situation where the corporation is charged but no individual is charged and, at the end of proceedings, an individual is disqualified. Q477 Mr Dunne: I thought I heard you say you thought it was not an appropriate penalty if a conviction is secured against a corporation that the individual should be disbarred. Ms Ireland: No. It is an appropriate penalty if an individual is convicted. (The Committee suspended from 6.30pm to 6.50pm for a division in the House) Q478 Justine Greening: In terms of its ability to connect a number of acts, a chain that then leads to a gross breach, do you think wrongdoing within an organisation can be identified without finding individual acts of wrongdoing by people who work in the organisation? Ms Ireland: Negligence is going to be due to the acts or omissions of individuals. There is a level of abstraction beyond which you cannot go theoretically. However, I think the current drafting of this Bill has worsened since the Law Commission's version for two reasons. There is too much reference to individuals here. There is a focus on individuals. There are circumstances where it might be possible to ascertain that an activity has been managed badly by identifying exactly where in the structure the failing occurred and, as long as it can be established that it was not at the bottom rung, at worker level, we should be able to generate corporate liability on this basis. The offence as currently drafted is a sort of hybrid. It punishes the corporation but it refers you again and again to individuals and their activities. That would cause problems both in terms of court time and investigation time and what has to be looked at in order to establish liability; also in establishing liability, particularly with regard to larger companies and corporations. Q479 Justine Greening: If you were a senior manager, however you want to define it, and you set in place all your process flow charts and all of those indicators as to how you want the corporation to run beneath you, if you have those in place do you think there is a danger that with this law managers would just make sure they had got the flow charts out to the organisation but then would stand back and think: I do not mind really whether they are followed or not under the day to day pressures of the job. The fact that I have them there demonstrates that I have given some guidance to the organisation. Do you think there is a risk that you would still not be able to prosecute? Ms Ireland: It is possible although you could say that the failure to supervise would be a failure in itself. The problem might be particularly in relation to large corporations that you could simply devolve responsibility . Imagine a multinational corporation with perhaps 100 factories saying to each factory manager, who might not be a senior manager for the purposes of this Bill, "You can have responsibility for health and safety procedures and health and safety policy" which might sound perfectly reasonable on the face of it. You would not be able to say to that senior manager, "It was entirely negligent for you to do that as your employees were incompetent", but you will have insulated yourself from liability. It incorporates into this Bill some of the problems of the current law which have made it almost impossible to prosecute large corporations. Q480 Justine Greening: If you did delegate downwards, that would be stepping back from your duties as a senior manager. Ms Ireland: It would be hard to establish gross negligence on that basis unless the person to whom you were delegating was evidently incompetent to carry out the functions you were delegating to them. Remember, we are talking about the criminal standard of proof here as well. It would always be open to the senior manager to say, "He was qualified to do the job. He was perfectly responsible and we took the decision that health and safety should be determined at factory level" which sounds reasonable. Q481 Justine Greening: Is that why you, to your mind, you think the concept of management failure is a better one than senior manager, because it enables you to say that there was still a problem at this level in the company, however big it was, and therefore that is still corporate manslaughter? Ms Ireland: Yes. Management failure is better because it is less personalised and because it should be emphasised that it is the corporation that is being punished for the wrongdoing here, not the individuals. Secondly, the reference to senior managers will allow large companies to escape liability under this Bill and they will be very well legally advised and possibly told to devolve their responsibilities downwards a bit. Thinking about a large, international corporation, senior manager may be a very high level. Also, there is a principle of equality before the law. If your husband dies in a factory accident and it is a small, local factory employing 50 people, under those terms, it is easy to call it corporate manslaughter. If he dies in a factory accident in a large multinational, it is probably just going to be a health and safety offence. I do not think that will make sense to the public and I think it attracts the principles of both fair labelling and equality under the law. Although I am not an expert, it may increase the regulatory burden on small businesses as well in relation to their larger counterparts. Q482 Mr Clappison: Can I turn to gross breach, particularly clause 3(2), the two constituent parts of that and the two constituent parts of clause (b)? These are subsections 3(2)(b)(i), (ii) and (iii)? These are the factors which juries are being required to look at in determining whether there has been a gross breach. What is your view on this process? Ms Ireland: It is relatively unusual to specify factors like this which the jury must consider. There is no problem referring to health and safety legislation. I think that is sensible. Asking the jury to assess the seriousness of the failure to comply with it is again sensible. The factors in clause 3(2)(b) refer back to senior managers, thereby incorporating some of the problems I mentioned. Are we going to have to look at all senior managers of the organisation? Probably not, but it could be open to argument. Are we going to have to look at what lots of people knew or ought to have known individually? The court time and cost in relation to that could be enormous. Particularly problematic is the last one, the profit motivation, which to me seems highly illogical. It is clearly relevant to sentencing, particularly of individuals but possibly corporations as well. It is clearly relevant to the level of moral opprobrium or culpability but I do not think it is relevant directly to gross negligence because it is very clear that gross negligence does not require retention or a particular motivation. This will confuse a jury and make them think about a different test to what they should be thinking about. It is likely to make it difficult to get convictions in a lot of areas because so often there will not be a profit motivation. Q483 Mr Clappison: One imagines the judge will have to direct the jury on each of these elements but not each of them will require to be proved for their to be a finding of corporate manslaughter. Ms Ireland: That is my understanding from reading it. I do not think all three of these will have to be proved. It would be very difficult to get convictions if they did have to be proved. I do not think that is the intention of the legislation. It is pushing a jury down the wrong route of inquiry. It also means that the prosecution will be shaped bearing in mind these factors. Defence addresses to the jury would be shaped around these factors. It could mean that you get acquittals where you should not. Q484 Mr Clappison: Do you expect to see many convictions as a result of all this? Ms Ireland: I do not expect to see a large number of prosecutions. I do not expect to see a large number of convictions particularly in the situation where the legislation has been felt to be so needed, such as in large railway accidents or large ferry accidents or large corporate failings of that nature. It is disappointing that we have waited so long for this legislation and it does seem to be creating obstacles for itself. Q485 Mr Clappison: Do you think the drafting of clause (2) could be improved? Ms Ireland: Yes. You could leave out clause (2)(b) altogether. That would be the best way to do it. Foreseeability of harm is relevant to negligence but that could be incorporated in something like clause (2)(b) or in a judge's direction. The danger in referring to foreseeability though is that you take it back to the conduct and knowledge of individuals. You could have some kind of objective test of foreseeability as there is in the civil law of negligence. Q486 Mr Dunne: In your evidence, you raise the question of whether, where there is a public authority defendant, the police are the appropriate people to investigate. Do you see a role for a Health and Safety Executive investigation? Ms Ireland: In relation to prosecutions of the police, the best investigators would be the IPCC who are used to handling offences by officers and who have the requisite level of independence. That would be much more appropriate. My concern with the HSE is that generally, where there is a suspected homicide, they hand matters over to the police. In relation to non-police prosecutions, that should continue. Where there is a role for the HSE is in relation to enforcement. We will be moving onto remedial orders later but if we are thinking about how judges will work out what remedial orders to institute and how those will be overlooked and enforced, there might be a very good role for the HSE in that regard because they have the requisite expertise. Q487 Mr Dunne: You have already referred to the new law on homicide. Can you come up with a better name than corporate manslaughter? Corporate killing? Corporate homicide? Ms Ireland: There is corporate killing; corporate killing by gross negligence perhaps. At the moment, corporate manslaughter is probably best because manslaughter is the offence that people know about and understand. It is a shame that this has come before the review of homicide. On balance however it should go ahead because we have been waiting a long time for it. It is going to create problems because it means that the law of corporate manslaughter will evolve separately to an extent from individual liability. Parliament could choose to completely redraft it again in two years' time and there could be a new Murder or Manslaughter Bill but I do not think they will. Q488 Chairman: If the courts can make remedial orders, that would mean the courts telling a public body how to conduct its affairs. In terms of the police, prisons or the general issues of bodies, are the courts well equipped to give instructions to senior police management about how to address their failings? Ms Berry: No. They would need to know a little more about the operations. I do not think it is beyond a possibility that officers of the court could have that expertise. When you have an inquiry of this nature, systematic management failings are going to come to the fore. Otherwise there would not be a sanction that had to be applied. Some of it would come out in the court case. I do not see it being necessarily a problem. The problem would be who you are going to appoint to ensure that whatever sanction or remedy is advised has been applied. That person needs to have an understanding. It could be an inspectorate. I do not think it should be the Health and Safety Executive necessarily on all occasions but there are people already, maybe even the IPCC, who would have the skills and expertise to ensure the remedy had been successfully applied. Mr Dobson: We would see the monitoring and formal review of matters that needed to be addressed as being very important. As things stand at the moment, we would probably see the chief inspector of prisons as being the appropriate office to conduct the monitoring and the review but if that post is not with us that would need to be rethought. Ms Ireland: This is problematic particularly in relation to public authorities but also generally about whether the court is the best placed authority to do this. Perhaps you could arrange for the court to receive evidence from the HSE and from other experts and for the HSE to monitor what is going on. There are separation of powers concerns once you start talking about central government departments, although I suspect most of the prosecutions against those on the list would be for things like health and safety in relation to employees. You will be hearing from the judges and some of them may feel uncomfortable about giving instructions to the Executive on how to remedy their procedures. Q489 Chairman: They do not seem uncomfortable about giving instructions to us most of the time. That is a separate debate. We have heard the ACPO discussion earlier about the compensation mechanism being relevant. From the point of view of Justice, is that something that could be done or is that best left to separate procedures? Ms Ireland: My understanding is that the courts already have jurisdiction to award compensation under section 130 of the Powers of Criminal Court Sentencing Act. It provides specifically that they can make payments for funeral expenses or bereavement. It also provides for compensation for personal injury, loss and damage. It does not matter if the person is dead for that to be awarded. What I am not sure about is to what extent it can cover things like loss of dependency, if the breadwinner is killed. There is also a surcharge created by the Criminal Justice Act 2003, which is not yet in force. I think that is destined for victims and I am not quite sure how that is going to work. There are problems with treating criminal prosecution as a substitute for a civil claim. The courts do not have the same level of expertise. The Court of Appeal in the past has discouraged the criminal courts from embarking on complicated investigations. You can see how a complicated quantum hearing might not be appropriate in the criminal courts. For a start, the family will not be represented. It will be the prosecutor and the defendant. In relation to criminal compensation, my understanding is that the Bill does not need to do anything. The only thing it might need to do if this is required is to allow an award for loss of dependency. An award can be made. If that is insufficient, the family can take it to the civil courts. Q490 Mr Clappison: I would find it very helpful if you could write to us setting out the point you make about loss of dependency and how you think it could be incorporated into the Bill. Ms Ireland: From my reading of Archbold I was not sure whether it is already reclaimable under section 130, but I can let you know. Chairman: Thank you very much indeed.
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