Mr.
Grieve: I am most grateful to the Minister. I shall seek
leave to withdraw the amendment, but I should just like to say
something to him first, because there is a point to be made.
The drafting of the provision
is fully justified—I have no difficulty with that. However, the
Secretary of State might exercise his power to specify a relevant
public organisation other than the ones covered by clause 15(3)(a) and
(b) and (4)(a) and (b), so it is incumbent on him to publicise the
reasons for that, otherwise, all Parliament will have is the notice
that he has made such an order. If Opposition parties or any hon.
Member, decide to pray against the order because they wonder whether
there is something about which they should be suspicious, the
information regarding such a decision will potentially be unavailable.
I hope that the Government will give clear instructions so that the
relevant Opposition departmental spokesman will be able to tap into
information about why the power has been used. That will save time in
the House, because negative resolutions will not be
debated.
Mr.
Sutcliffe: I shall look into that. I understand how that
may occur. I undertake to write to the hon. Gentleman about how to deal
with
it.
Mr.
Grieve: I am grateful to the Minister. I beg to ask leave
to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
15 ordered to stand part of the
Bill.
Clause
16DPP’s
consent required for
proceedings Question
proposed, That the clause stand part ofthe
Bill. Mr.
Edward Davey (Kingston and Surbiton) (LD): Good morning,
Mr. Gale.
There is a
serious policy issue to be debated under the clause. The
recommendations in the Government’s consultation paper in 2000
and in the Law Commission’s original proposals were that a
private individual could bring a case for the new offence without
needing the Director of Public Prosecutions’ agreement. There
has been a change about which there has been a big debate and the
Committee should debate
it. I need to be
convinced that the Government have got it right. There is a strong case
for individuals to be allowed to press ahead with a prosecution without
the Government, in the form of the DPP, interfering. The Government and
others are concerned that, without the extra hurdle, individuals and
bereaved families might bring vexatious private prosecutions without
good cause, even though they may not have any real evidence and a
prosecution might not be in the public interest. That is unlikely,
because such people would presumably get good legal advice. Such cases
cost a lot of money and people would not pursue them without being
relatively confident that they have a strong case. Denying victims and
their bereaved families the possibility of a prosecution by setting up
the extra hurdle could be another source of injustice—a problem
that I thought that the new offence and new structure were designed to
address. Some people
have questioned whether the DPP might have a conflict of interests.
Hon. Members know that the DPP is an independent person operating under
clear rules, like the Crown Prosecution Service, in respect of ensuring
that there is sufficient evidence for there to be a chance for a
prosecution to succeed and that a prosecution would be in the public
interest. Those are the tests. However wonderful a human being any DPP
is, if cases are brought against the Crown, the DPP might have
political considerations at the back of his or her mind that have the
appearance of a conflict of
interest. I am not the
only one considering the matter. When they examined the draft Bill, the
Joint Committees were very worried about it and recommended that that
particular Government proposal should not appear, as did the Law
Commission in its original
findings.
Ian
Stewart: To save me making a speech, I shall put a
question to the hon. Gentleman to see whether he agrees with me and my
colleagues and so that the Minister can address it when he sums up. Do
the hon. Gentleman and the Committee feel that if the clause stands
part, it will preclude families bringing private prosecutions? That
would be a matter of deep concern to me and my colleagues. Does he feel
the same
concern?
Mr.
Davey: Indeed I do. It certainly could preclude individual
families bringing prosecutions. Of course, one would imagine that if
the DPP felt that there was sufficient evidence and a public interest,
he or she might allow the private prosecution anyway. It is not a
complete barrier, one hopes.
Mr.
Sutcliffe: Perhaps I can help the hon. Gentleman. I do not
see the conflict of interest he mentions, but will not such cases be
high profile
anyway because of the serious nature of corporate
manslaughter? It would be difficult for the DPP not to go along with
the prosecution. The seriousness of such cases should allay the hon.
Gentleman’s fears. They are very much in the public
eye.
Mr.
Davey: The Minister is, of course, right that such cases
will have a high profile. One might say that the DPP would therefore
have political considerations that tended against refusing leave, but
that is an argument for not involving the DPP in the process and for
allowing individual families to decide whether a private prosecution is
appropriate. The Law
Commission said clearly that it is quite a serious matter to remove a
bereaved individual’s right to bring a private prosecution. That
is what the Committee is being asked to do. It is being asked to put
the DPP in the way of a bereaved family or community seeking justice.
Let us be absolutely clear that what we are being asked to do today is
not normal. Therefore, one must ask some searching questions. One would
think that having a loved one taken away would be a strong case for
being allowed to go ahead, not for having an extra obstacle put in the
way. There is a burden
on the Minister to prove his case. I would have thought that the
opposite conclusion to the one that reached in the Bill would be the
common-sense one. Such cases might be high profile, but it is the
individual family’s right to pursue justice unfettered by some
lawyer, however wonderful that lawyer is. The Committee is being asked
to put something in the way of that search for redress. If he can
persuade us, we might not vote on the clause today but consider it for
Report. We are certainly prepared to consider what he says, but he must
make a pretty strong
case.
Mr.
Grieve: I listened carefully to the hon. Gentleman. To
some extent, I share his view that, on the whole, private individuals
should be able to bring private prosecutions if they wish. However, we
must face up to the reality that a corporate manslaughter charge is
likely by its very nature to be a pretty complex piece of litigation. I
would think that unless he or she is very wealthy—a
millionaire—with a great deal of money to spend on the
preparatory work required to support the necessary investigation, it
would be difficult for a private individual to mount a
prosecution. Quite
apart from anything else, an accident that causes death and is clearly
due to a corporate entity’s activities will be investigated by
the Health and Safety Executive or other enforcement agency first. I
hate to think how a private individual bringing a prosecution would be
able to manage the necessary co-ordination with the HSE and with the
experts who would probably be needed to help, unless the case involved
the HSE, which would therefore have to give broad support. I am left
with the feeling that at the end of day this debate is slightly
academic. I find it hard to see how, in reality, there will ever be a
prosecution that is not both backed by the enforcement agencies and
brought by the Crown Prosecution Service, with its full panoply of
monetary and other resources.
Mr.
Davey: The hon. Gentleman paints a picture of a helpless
individual trying to bring a case by themselves, but he does his former
profession a great disservice. I would have thought that in a former
life he would have helped that poor person.
Mr.
Grieve: I would have endeavoured to help them. In my
former professional life I was approached on one or two occasions by
individuals who sought advice on whether to bring private prosecutions.
On the whole, I tended to be discouraging, although on one occasion I
considered bringing a private prosecution against a person who had
burgled my house, but whom the police had not seen fit to prosecute. I
thought better of it, although I was tempted, because it would have
been an easy matter. I would just have had to lay the information
before the court, one result of which could have been to shame the CPS
into taking the case over, but I was dissuaded from that course of
action by a meeting with the chief superintendent at my local police
station. There are problems associated with the issue, but the best
thing is to listen to the Minister’s
response.
Ian
Stewart: I rise to say that it is gratifying to hear that
the hon. Gentleman can change his mind after hearing good
argument.
Mr.
Grieve: I can be persuaded on many things if cogent
argument is applied. To that extent, I remain open to persuasion by the
hon. Member for Kingston and Surbiton (Mr. Davey), but I
happen to think that the nature of such prosecutions and the complexity
attendant upon them make it not unreasonable to ask for the Director of
Public Prosecutions’ consent. The other reason is that it is
undesirable to encourage people to embark on courses of action that are
going to lead to hitting the buffers. That applies both ways—to
the individual and to the corporation at the receiving end of the
initial summons bringing it to court. For those reasons, the
seriousness of the offence is perhaps of such an order that the
DPP’s consent is appropriate.
I do not share the
hon. Gentleman’s view about the DPP being subject to political
pressure. Never in my professional experience have I seen a hint of it.
The DPP is a civil servant, but once he holds his office he cannot be
removed other than for misfeasance or personal misconduct. For those
reasons, I do not think that that is a live
issue.
11.45
pm
Ann
McKechin: Will the Minister point out tothe hon.
Member for Kingston and Surbiton that the reason why Scotland is not
mentioned at all in the clause is that case law has established in
Scotland that a case of such severity cannot be taken as a private
prosecution without the consent of the Crown. I understand that that
was a ruling from around 1982 or 1983 in the infamous Carol X case, in
which somebody tried to bring a private prosecution for the crime of
rape. Private prosecutions are rare in Scots law and one had not been
brought for many years until that case was heard. I understand that it
was the opinion of the court that the consent of the Crown Office would
be required for such a prosecution. Clause 16 would make the law
consistent across the whole United Kingdom, which is another argument
in favour of the Government’s position.
I agree with the hon. Member
for Beaconsfield. I have no evidence to suggest that the Crown Office
would be under any political pressure in respect of
prosecutions. Given the complexities of the cases and the public
interest involved in them, it is important that the Crown Office in
Scotland or the Director of Public Prosecutions in England, Wales and
Northern Ireland are involved because, as has been pointed out today,
the complexities are such that, in practice, their involvement is
required. Mr.
Sutcliffe: I am grateful to my hon. Friend the Member for
Glasgow, North. She is right about Scotland, where all proceedings on
indictment are instigated by the Lord Advocate. She is right to say
that the clause will bring consistency.
I am grateful for the comments
of the hon. Member for Beaconsfield about the independence of the DPP.
The hon. Member for Kingston and Surbiton attacked the motivation
behind the clause as a barrier to prevent individuals taking private
prosecutions. The clause is not about that, but about making sure that
the serious offence of corporate manslaughter is dealt with properly. I
hope that I shall persuade the him to reflect on what he said. The
clause certainly does not rule out private prosecutions; all we are
saying is that the DPP should first review the case.
The two factors in gaining the
DPP’s consent arethe public interest in bringing the
case to court and the likelihood of securing a conviction. Given the
seriousness of cases in question, there will already be considerable
public interest in bringing prosecutions. If there is sufficient
evidence to ensure a reasonable prospect of conviction, there would
have to be compelling reasons for no prosecution being brought.
However, if there were insufficient evidence to support a prosecution,
I am not sure what benefit there would be in bringing one.
As the hon. Member for
Beaconsfield said, evidence in corporate manslaughter cases is unlikely
to be straightforward. By their nature, such cases involve complex
evidence about company structures and industry standards. Private
individuals are unlikely to have the same ability as the CPS to assess
whether there is sufficient evidence. The families of victims,
desperately distressed at having lost their loved ones, are not
necessarily going to be able to make that assessment
objectively. In
addition, as hon. Members will be aware, the creation of the offence
has caused concern among potential defendants that every work-related
death will result in a charge of corporate manslaughter and that even
the reputations of companies that manage health and safety well, but
tragically have a fatal accident, will be damaged through manslaughter
charges. Part of our reassurance that only the worst cases of health
and safety failures will proceed to court is to ensure that the DPP
will be satisfied that in every case the evidence supports a reasonable
prospect of conviction.
Bringing cases with no
realistic prospect of a conviction to court is in the interests of
neither the organisations, whose reputations may unfairly be damaged,
nor the families, whose expectations will have been raised
unrealistically and who will bear the financial burden of bringing the
case. For those reasons, it is right that private prosecutions should
require the consent of the DPP. If the DPP does not consent to a
prosecution, that decision can be
challenged by way of judicial review. With that safeguard in mind, I
hope that Committee members will support clause
16. Question put
and agreed
to. Clause 16
ordered to stand part of the
Bill.
Clause
17No
individual
liability
Mr.
Davey: I beg to move amendment No. 151, in
page 11, line 4, leave out
‘cannot’ and insert
‘can’.
The
Chairman: With this it will be convenient to discuss the
following: Amendment No. 152, in
page 11, line 6, leave out
‘cannot’ and insert
‘can’. Clause
stand part. New clause
5—Individual
liability— ‘(1) An
individual can be guilty of aiding, abetting, counselling or procuring
the commission of an offence of corporate
manslaughter. (2) An individual
can be guilty of aiding, abetting, counselling or procuring, or being
art and part in the commission of an offence of corporate
homicide. (3) An individual
guilty of an offence under sections 17(1) or (2) shall be liable on
conviction on indictment to a fine or a term of imprisonment of up to
14
years.’.
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