The Crown Prosecution Service: Gatekeeper of the Criminal Justice System - Justice Committee Contents


Examination of Witnesses (Question Numbers 200-219)

DAVID GREEN QC AND PETER MCNAUGHT

10 FEBRUARY 2009

  Q200  Chairman: So they manage without having a specialised prosecution agency presumably in either of the fields for which you are responsible.

  Peter McNaught: Yes; that is right. In the Health and Safety Executive, once the report has been prepared it is handed to the Procurator Fiscal who then prosecutes the case.

  Q201  Chairman: Do you notice any difference in either outcomes or ease of conduct of business between the two systems?

  Peter McNaught: Probably, to understand the Health and Safety Executive you need to know a little bit about how that operates in England and Wales because that is quite different in the Health and Safety Executive from the way in which RCPO or CPS operate in that the Health and Safety Executive is primarily concerned with ensuring the health and safety of people at work and those affected by work. So inspectors, who are effectively investigators, are also the prosecutor and in many cases will be the person who presents the case in the magistrates' court and conducts the function of the prosecutor. In the more complicated cases, we use outside solicitors to advise and in a very small proportion of cases my team of lawyers present the case and prepare the case. We ensure independence through other members of the Health and Safety Executive approving prosecution decisions and remaining at arm's length from the investigating inspector. Against that background, the same system operates in Scotland inasmuch as the inspector will investigate, his principal inspector will approve that the case should go to the Fiscal and then the Fiscal will decide whether to take that forward to court as part of his function. The Procurator Fiscal has recently set up a new unit to deal with Health and Safety prosecutions, which appears to be an acceptance that it is a rather specialised area of the criminal law which needs that expertise. That is a very welcome development for the Health and Safety Executive.

  Q202  Chairman: Just to add to the sum of general understanding of what happens in Scotland, which is always a good thing, especially if, like me, you live on the border, but perhaps rather more to make the point that it is possible to do all this without having the kind of specialist prosecution role which you each have, in Mr Green's case as a separate organisation for England and Wales and in Mr McNaught's case rather more like Customs used to be as an inspecting and prosecuting body, you did not tell me whether you thought it made much difference.

  Peter McNaught: It is difficult to know whether the outcomes are better in Scotland or in England and Wales. What is probably missing in Scotland compared to England and Wales is the connection between other action which takes place as part of enforcement. A lot of work which is done by the inspector is in terms of giving advice and guidance and enforcement notices and they have therefore a very good knowledge of where the benchmark is in terms of where action will bring about improvement in health and safety without prosecution and where a prosecution is needed. Effectively some of that will happen in any event before a case goes forward to the Fiscal for a decision on prosecution.

  David Green: May I make a couple of points on that? First of all, it is right to say that the Attorney has set up a strategic board, the idea of which is to ensure that strategy is joined up across the law officers' departments. Part of that board's work is just beginning now as a strategic programme which is frankly designed, as you would expect, to achieve the most efficient and effective prosecution services for the future. That work includes looking at the structure of the prosecutors. As I understand it, all options are very much open. It is right to say that the current system works well, but that is not the same as saying that it is not capable of improvement. There are arguments on both sides, with which I am sure you will be familiar, but perhaps I might take a few points in favour of the specialist prosecutor. One might think that if prosecutors were all merged into one monolithic organisation, specialism and expertise in certain key areas such as, in our case, fiscal and tax law, customs and smuggling law, would quickly be diluted and lost. That was certainly the view of the Gow/Hammond report in 2000 and Mr Justice Butterfield's report in 2003 which led to the establishment of RCPO. Secondly, it might be right to say that in a large single monolithic organisation there will always be competing and emerging priorities at different times, therefore a pressure to shift resources within that large organisation to that new and emerging priority. If you have a specialist prosecutor, then of course you have a dedicated ring-fenced resource within that small area of specialism. I have to say, as I am sure you will readily agree, fiscal and tax law and customs law are not for the fainthearted.

  Q203  Mr Heath: You have partly answered my question in what you were saying about the coordinating arrangements. There are times when you prosecute and there are times when you use other means to achieve your objectives. I wonder whether you both believe there is consistency between the various prosecuting authorities on when to prosecute and when not to prosecute or whether there is a possibility that it is pure happenstance if a particular case which might be in the overlap area is taken up by one prosecutor or another as to what the disposal is likely to be in that sense and to what degree there is any coordination.

  David Green: I would say first of all that certainly we follow the code for crown prosecutors; RCPO follows them by statute, so does the Serious Fraud Office, so does the Crown Prosecution Service and the DPP has ownership of that code. As I pointed out, we do of course prosecute a very distinct group of offences.

  The Committee suspended from 4.32 pm to 4.47 pm for a division in the House.

  Q204 Mr Heath: Do you remember my question?

  David Green: The purport of your question was that having lots of prosecutors in different organisations might produce inconsistent results.

  Q205  Mr Heath: Yes and all those areas which do not lead to prosecution. Taking it beyond the convention of whether the evidence is sufficient and whether it is in the public interest, it is clear that some of the organisations have alternative means to ensure a result other than prosecution. I am wondering whether there is a degree of consistency or not.

  David Green: With respect, it is probably horses for courses, is it not? From HMRC we can only consider a prosecution which they refer to us and of course HMRC is a tax collector primarily and has all sorts of other mechanisms available to it but once it has referred to us, I would say our decisions within the organisation are entirely consistent, just as consistent, for instance, as a prosecutor in Southend working for the CPS would make a decision consistent with a prosecutor working in Scunthorpe for the CPS. There is no difference in principle.

  Q206  Mr Heath: The Health and Safety Executive is slightly different perhaps.

  Peter McNaught: Slightly different and different because other agencies prosecute health and safety breaches in particular local authorities. What we do to try to ensure consistency in addition to applying the code for crown prosecutors is that we have our own enforcement policy statement which has some flesh in the context of health and safety enforcement to the areas which are important in relation to that enforcement. That is a document to which local authorities have access and they will apply consistently in the same way as the Health and Safety Executive will seek to do. In terms of other penalties and other ways of dealing with things rather than simply going to court, as I mentioned earlier the Health and Safety Executive and local authorities will use enforcement action in terms of notices, improvement notices and prohibition notices, as a very useful tool to ensure compliance with health and safety law and ensure safety at work. In fact we will issue many, many more improvement notices and prohibition notices than we will take prosecutions to court because that will achieve the aims of the Health and Safety at Work Act.

  Q207  Mr Heath: Do you have a clear and set out policy in respect of deaths which may have been occasioned by a failure to ensure health and safety? Do you have clear lines of communication both with coroners and with the police authorities where they may be involved?

  Peter McNaught: In relation to work-related deaths there is the work-related death protocol which is a protocol signed by the HSE, police, CPS and other agencies who become involved in such investigations and prosecutions. That helps in relation to joint working, initially with the police, because that would be the first contact after a death at work. The police will be informed, the Health and Safety Executive or the local authority will be informed and the protocol helps us to work out from that point onwards who should lead in the investigation, which parts of the investigation should be dealt with by which agency and as the investigation then progresses it is then that the CPS will become involved and decisions will then be made as to whether this is a case where there is a case of manslaughter, either against an individual, or corporate manslaughter against a company. As part of that process, depending upon who has the lead of the investigation, the coroner will be kept informed of the progress of the investigation and of course the families of the deceased, very important in any such investigation, will be kept informed, depending upon who is the lead agency, by the police or by the Health and Safety Executive.

  Q208  Mr Heath: I do not want to labour this point. Do you think that has improved significantly recently? I have a long-standing case which I have been pursuing—I do not want to go into the details—where it is clear there was not that degree of coordination.

  Peter McNaught: There are certainly cases that I am aware of where there has not been successful coordination. It is improving, has improved over the recent couple of years. We are doing a lot with the CPS and with the police to try to improve that coordination. There are regional liaison committees in each of the regions of England and Wales and Scotland to discuss particular cases and particular issues which arise from those cases to try to work out, if things do go wrong, where they went wrong, to improve in the future and if things have worked well, how they worked well and to disseminate good practice and a national committee which then tries to pull that all together. Whilst I would not say that in every case it always works perfectly or sometimes very well, it is an improving situation and one which certainly we, the police and CPS are working to improve further.

  Q209  Mr Heath: May I return to you, Mr Green, on a different matter? You may say this is a matter for HMRC rather than yourself. May I give you an example which has cropped up in my work where a different disposal appears to be being used in regard to carousel fraud? It is a big issue and there is political determination to sort it out. The mobile phone trading industry has effectively been brought to a halt without there being a significant number of successful prosecutions by a mechanism of withholding VAT returns. I do not want to defend anyone who is acting fraudulently but equally I feel that this is a diversion away from due process to assume that these companies, simply because they are trading in the sector, are probably guilty of the fraud. It worries me that there is something going on there which is not due process. Does it worry you?

  David Green: First of all, obviously we only consider for prosecution things which are referred to us for a decision as to prosecution by HMRC. In relation to what you have said, I am aware of similar circumstances. I am afraid that is something HMRC would have to answer for but I would also say that anyone who has had their VAT withheld is perfectly able to appeal to a tribunal for its return.

  Q210  Mr Heath: Eventually.

  David Green: Yes.

  Q211  Mr Heath: But it is a large sum of money which HMRC then withhold the next year. It is not something you have discussed with HMRC?

  David Green: No, that would be a matter for HMRC.

  Q212  Chairman: So you do not have any influence on what the policy is for the use of alternative mechanisms to deal with infringement?

  David Green: To say we have no influence is not quite right. We make strong submissions to HMRC and they listen to them.

  Q213  Mr Heath: Have you on this?

  David Green: We are in regular discussion on MTIC fraud and how to prosecute it.

  Q214  Mr Heath: What have you said?

  David Green: Investigating MTIC fraud is largely a matter of course for HMRC. They have to decide what sort of resource they want to put into investigating it. Once they have done that we are perfectly happy to consider anything they report to us for prosecution. They are the tax collectors and as I have said three times now, we can only consider for prosecution cases which are referred to us.

  Q215  Mr Tyrie: They are referred to you for consideration?

  David Green: Yes.

  Q216  Mr Tyrie: HMRC's primary concern is to get the money in. It is as simple as that really, is it not?

  David Green: Yes.

  Q217  Mr Tyrie: Therefore, when they consider what to refer to you, they are thinking about putting before you cases which can help them get the money in?

  David Green: It is a question again which is better put to HMRC but obviously they have their investigative priorities; we have some influence in what their priorities might be. Obviously priorities change but we are a prosecution authority quite separate from HMRC.

  Q218  Mr Tyrie: What are their priorities at the moment?

  David Green: Generally speaking safeguarding the revenue.

  Q219  Mr Tyrie: Yes; getting the money in.

  David Green: Protecting the revenue and that may touch on all sorts of things. It may be alcohol diversion fraud, it might be the same sort of fraud in relation to tobacco, it might be missing trader intra-community fraud to which you have referred and it may be frauds on income tax or other sorts of tax.



 
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