Investigatory powers
328. The new offence of corporate manslaughter will
be listed as a serious arrestable offence under the Police and
Criminal Evidence Act 1984 (PACE) and therefore police powers
of investigation will be subject to that Act. Schedule 1 of PACE
permits a circuit judge, on the application of a constable to
authorise the police to enter premises and seize material where
there is high level of urgency and where delay would have a deleterious
impact on the investigation. The Association of Chief Police Officers
(ACPO) submitted evidence to the inquiry that the current arrangements
under PACE were insufficient for corporate manslaughter investigations:
"Access to this material may only be secured
under an order granted by a judge (Schedule 1 PACE), rather than
under warrant issued by a Justice of the Peace. This creates particular
problems in obtaining an appropriate authority to access the business
records of a company that is the subject of an investigation.
By the time arrangements have been made to apply for such an order,
and a hearing scheduled in front of a judge, the passage of time
may have had a detrimental affect on the investigation".[447]
329. Under section 20 of the Health and Safety at
Work etc. Act 1974, health and safety inspectors are provided
with a number of powers for the purpose of carrying into effect
enforcement responsibilities. These powers include powers of entry
to premises, examination and investigation. Unlike the search
and entry powers available for the police under PACE, Health and
Safety Executive inspectors do not need to apply to a court for
a warrant of authorisation. ACPO suggested that delays could be
minimised by allowing a senior police to authorise warrants for
entry and search rather than a circuit judge.
330. ACPO also requested additional powers to compel
individuals to give evidence. They pointed out that individuals
could not be cautioned as they were not liable to the offence
and argued that witnesses against their own organisation were
likely to be unwilling to help the police. They stressed that
the Serious Fraud Office and the Health and Safety Executive have
powers to compel people to give evidence.[448]
In addition they asked for powers to bring non-police expert support
with them when necessary when entering business premises.
331. The Health and Safety Executive have expressed
"some sympathy" with ACPO"s views "since it
could avoid confusion and delay in some cases".[449]
332. However, JUSTICE was concerned about granting
the police equivalent powers when investigating a serious criminal
offence. It submitted:
"The search of premises and seizure of documents
can engage rights under both Article 6 (fair trial) and Article
8 (privacy) of the European Convention….[I]n these circumstances
the need to apply an independent judicial authority in order to
obtain a warrant is a necessary safeguard against the arbitrary
use of powers of search and seizure. We therefore believe that
the requirement for an application to a judicial authority should
be maintained…".[450]
It suggested that there were other alternatives to
extending powers to hasten the process, such as, for example,
allowing a telephone hearing.[451]
333. The Centre for Corporate Accountability expressed
support in principle for these new powers but questioned how they
might work alongside different rules for evidence gathering in
pursuit of an individual for gross negligence manslaughter.[452]
334. We have yet to be convinced that the police
require additional powers to investigate corporate manslaughter
effectively. The requirement in the Police and Criminal Evidence
Act 1984 to obtain judicial authority for entering and searching
premises is an important safeguard. However, there does appear
to be an inconsistency in the powers of the police and those of
the Health and Safety Executive. We therefore urge the Government
to consider this issue further.
Consent to prosecute
335. Clause 1(5) of the draft Bill requires the consent
of the Director of Public Prosecutions (DPP) before a private
prosecution for a corporate manslaughter offence may be launched.
This is a change of policy from the Government's 2000 consultation
paper when there was no such requirement to obtain consent. In
its introduction to the draft Bill the Government explains why
this is no longer proposed:
"There was significant concern amongst respondents
that this would lead to insufficiently well-founded prosecutions,
which would ultimately fail, and would place an unfair burden
on the organisation involved with possible irreparable financial
and personal harm".[453]
336. Some witnesses welcomed this decision.[454]
For example, the British Retail Consortium argued:
"We also welcome the intention that cases
only be bought under the Crown Prosecution Service with the consent
of the Director of Public Prosecutions as this should ensure that
inappropriate cases are not brought under the legislation".[455]
337. A substantial number of witnesses however, strongly
opposed this change in the proposals.[456]
The Simon Jones Memorial Campaign disagreed that removing the
requirement to obtain the consent of the DPP would lead to spurious
and unfounded prosecutions:
"Once more is it the interests of the potential
offender that are put to the fore - not those of the victims and
the bereaved families….The financial hurdles alone are so
great that only in exceptional cases could a private prosecution
be considered. There is therefore virtually no chance of an insufficiently
well-founded private prosecution. For this reason alone it is
unreasonable to add the additional obstacle of requiring the consent
of the Director of Public Prosecutions".[457]
338. The Centre for Corporate Accountability quoted
the Law Commission's original argument for not requiring the DPP's
consent:
"[T]he right of a private individual to
bring criminal proceedings, subject to the usual controls, is
in our view an important one which should not be lightly set aside.
Indeed in a sense it is precisely the kind of case with which
we are here concerned, where the public pressure for a prosecution
is likely to be at its greatest, that that right is most important:
it is in the most serious cases such as homicide, that a decision
not to prosecute is most likely to be challenged. It would in
our view be perverse to remove the right to bring a private prosecution
in the very case where it is most likely to be invoked".[458]
339. It further added that "In any case, if
a private prosecution is so manifestly unfounded, the case can
be quickly quashed by the Crown court at an early stage".[459]
The Centre also raised the concern that there could be some conflicts
of interest in cases against the Crown.[460]
340. We consider that the interests of justice would
be best served by removing the requirement to obtain consent.
We are persuaded that this recommendation would not lead to spurious
and unfounded prosecutions, as there exist a number of other obstacles
to bringing a private prosecution for corporate manslaughter.
We recommend that the Government remove the provision in clause
1(4) requiring the Director of Public Prosecution's consent before
a prosecution can be instituted.
440 Home Office, Corporate Manslaughter: The Government's
Draft Bill for Reform, Cm 6497, March 2005, para 58 Back
441
Volume II, Ev 12, 44, 54, 89, 100 and 188 Back
442
Volume II, Ev 121 Back
443
Volume III, Q 438 (Detective Chief Constable Stoddart) Back
444
Volume III, Q 544 (Mr Rees) Back
445
Volume II, Ev 85, 170 and 241 Back
446
Volume II, Ev 191 Back
447
Volume II, Ev 323 Back
448
Volume II, Ev 324 Back
449
Volume III, Ev 135 Back
450
Volume III, Ev 135 Back
451
Volume III, Ev 134 Back
452
Volume III, Ev 129 Back
453
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, para 60 Back
454
Volume II, Ev 47, 77, 93, 104 109, 114, 268 and 271 Back
455
Volume II, Ev 77 Back
456
See, for example, Volume II, Ev 32, 60, 85, 114, 154, 253, 263,
268, 271, 290 and 302 Back
457
Volume II, Ev 85 Back
458
Quoted in Volume II, Ev 171 Back
459
Volume II, Ev 171 Back
460
Volume II, Ev 171 Back
